Kentucky Law Journal Volume 27 | Issue 1 Article 3 1938 The Retroactive Effect of Repeal Legislation Carl Seeman Jr. Follow this and additional works at: https://uknowledge.uky.edu/klj Part of the Legislation Commons Right click to open a feedback form in a new tab to let us know how this document benefits you. Recommended Citation Seeman, Carl Jr. (1938) "The Retroactive Effect of Repeal Legislation," Kentucky Law Journal: Vol. 27 : Iss. 1 , Article 3. Available at: https://uknowledge.uky.edu/klj/vol27/iss1/3 This Article is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal by an authorized editor of UKnowledge. For more information, please contact [email protected]. THE RETROACTIVE EFFECT OF REPEAL LEGISLATION By CARL SEEMAN, JR.* Since the Eighteenth Century retroactive legislation has, by its very name, aroused great antagonism. Somehow it seems to imply unfairness, arbitrariness, uncertainty, and to bring in its wake the threat of oppressive and tyrannical government; that a person may have performed an act yesterday in a just reliance on the law, and today suffer because in the interim the legal con- sequences of that act have been changed, is a situation repulsive to all the so-called "natural instincts of man.' * B. S., 1935, Harvard; LL. B., 1938, Columbia University School of Law. IThe English attitude from the time of Bracton has been unfavor- able to retroactive legislation, but there has never been a successful attempt to deny the power of Parliament to pass such laws. Instead, the courts construe legislation very strictly to give it a prospective operation, and only allow retroactivity when required by the clearest terms of the statute. This attitude, in the past, however, was chiefly directed toward ex post facto laws; Blackstone criticizes laws which change the legal effect of past actions as very unreasonable. I Com- mentaries 46. The emphasis is clearly on criminal laws. For present law In England, Mew's Dig. Statutes, c. I, 3. The ex post facto clause of the United States Constitution has been construed to apply only to criminal statutes (Calder v. Bull, 3 Dallas 386; Kring v. Missouri, (107 U. S. 221) 2 S. Ct. 443, and it might be thought that the United States courts would follow the English rule. But Justices Kent and Story used their great influence to implant in our law, In its Infancy, a horror of retrospective legislation, and to read into our Constitution the idea that all such laws are contrary to the natural rights of man. In perhaps the most important opinion on the subject, Dash v. Van Kleeck, 7 Johns 477 (1811), quoted with approval in Duke Power Co. v. So. Carolina Tax Commission, 81 F. (2d) 513, as recently as 1936, Justice Kent said at pages 505-6: "Laws impairing pre- viously acquired civil rights are equally within the reason of that [the ex post facto] prohibition and equally to be condemned. The distinction [between the retroactivity of laws in criminal and in civil cases] consists only in the degree of oppression, and history teaches us that the government which can deliberately violate the one right, soon ceases to regard the other." The constitutions of several states contain provisions prohibiting retroactive legislation. See Note 11. Decisions and textbooks, even to the present, retain a good deal of this holy horror, and the conception of vested rights, that is, rights which cannot be affected by later legislation, has been given the support of the contract and due process clauses of the Federal Constitution. 2 Suther- land, Statutes, 644 if. and footnotes 38 ff. below. For a discussion of the status of retroactive legislation some years ago see Address by G. W. K. L. J.-6 KENTUCKY LAW JouRNAL The traditional objections to retroactivity may be combatted by a philosophic analysis. As Jerome Frank justly remarks, all law is, in a very real sense, retroactive, because no one can be quite sure what the legal effect of his action will be until the 2 decision of the court has been handed down and put into effect. But this approach, conclusive though it may be to the philosopher of law, does not reduce our subject to meaninglessness. Though all law may be retroactive in the above sense, there is obviously enough practical predictability in the law in many situations to permit members of the community to act in just and justified reliance on the law. In most situations which confront the average person it is far more sensible to regard the law as settled than to regard it as uncertain, and therefore retroactive, either because there is one chance in a hundred that the court will reverse its previous decisions-or even because there is the far greater chance that for one reason or another "justice" will not 3 be done. A far more serious fault than that of being "unphil- osophical", in those who accept the customary abhorrence of retroactive law, is that in so doing they ignore the basic problem of government. Every government is established within a frame- work of society, many parts of which have developed and exist independently of that government. If the government is to adjust any set of relations within that society, (and this is admittedly the function of government) it must to some extent alter and upset expectations, traditions, and even institutions. To the extent that this is done, the government must make illegal today that which yesterday was relied upon as perfectly legal. Laws Biddle before the New York Bar Association, IV Report of N. Y. S. Bar Assoc. 107 (1880), and for a recent discussion, Bryant Smith, in 5 Texas L. R. 231 (1927) and 6 Tex. L. R. 409 (1928). 2 J. Frank, Law and the Modern Mind, 34-5. 3It must be granted, of course, that quite a number of situations arise which create relationships not as yet defined by any law, and when litigation occurs over such situations we have the so-called cases of first impression. These cases form an appreciable proportion of the total of litigated cases. But compared with the millions of legal rela- tions which are daily created and dissolved during the multifarious transactions of our society, the number of unique situations referred to above is so small as to be negligible for the purposes of our present argument. The fact that this no man's land exists does not prevent persons from transacting the vastly greater proportion of their affairs with quite reasonable assurance that they are thus creating and dis- solving legal relations which are perfectly predictable. RETROACTIVE REPEAL LEGISLATION which have this effect are often put into action and are indeed unavoidable. A man who buys a piece of land thinking that he may use it as he pleases is prevented by a zoning law from opening a store on it. A minimum wage law upsets the calcula- tions and plans of the factory owner. A change in the tariff destroys the business of the importer, or throws the factory worker out of his job. All these persons depended upon a cer- tain law and suffer because the law is changed. The sufferings may differ widely in degree (who is there who is not so injured at one time or another?) but they are all caused by the same sort 4 of phenomenon. Retroactive laws, if permitted, make existing legal relations more uncertain, while they permit governments to perform their functions more freely than if such laws were forbidden. A busi- ness economy wants the least possible disturbance of the legal 'Although this paper deals particularly with the retroactive effect of repeal legislation, it must be remembered that this division of the subject is quite arbitrary. Whenever a law is passed dealing with a subject which has not been treated before by statute, and which changes whatever common law which has previously existed on that subject, persons who relied on the former state of the law are disappointed when the new law is applied to them, in exactly the same way as if they had previously relied on a written legislative enactment. Courts have differed on what sort of expectations and rights they will disappoint and what sort they will protect, just as much whether the retroactive effect is produced by a repeal or not, but the remainder of this paper will deal only with cases which involve a repeal. Never- theless, it must be borne in mind that the litigation over the effect of repeals has its parallel in the probably more numerous cases where retroactivity without repeal was involved. The situations given in the text at this point exemplify expectations which the courts will not pro- tect; many of the constitutional cases on the "due process' clause, which have invalidated laws which injured property rights show that the courts will designate the same sort of expectations as "rights" and protect them as such against the retroactive effect of some legisla- tion. 'Walls v. Midland Carbon, 254 U. S. 300, 40 S. Ct. 543 (1920); Pa. Coal Co. v. Mahon, 260 U. S. 393, 43 S. Ct. 153 (1922) and very many others. The question also arises often under the "contracts" clause when the court has to decide whether the rights formerly possessed by the attacking party are to be protected or not. Note that the Connecti- cut saving statute quoted below in footnote 24 recognizes that the pas- sage and repeal of laws may similarly affect existing rights. An unusual distinction based chiefly in §327 of the California Poli- tical Code was made in Callet v.