626 PRIVATE LAW 



interests have been allowed to be cut off by such legislation because 

 the courts considered that they did not amount to vested rights, 

 and equities have thus been sacrificed which under more careful 

 methods operating without constitutional limitations are always 

 safeguarded. 1 



The second category consists of cases in which a strict conception 

 of the inviolability of private property rendered impossible the 

 carrying out of a policy intrinsically just and desirable. This may 

 be illustrated by laws attempting to authorize the condemnation 

 of land for private rights of way, or the creation of drainage districts 

 for the improvement of land of several owners by the vote of a 

 majority. In one jurisdiction the supposed sanctity of private 

 property was held to make it impossible to provide for the com- 

 mutation of perpetual ground-rents at the option of the landowner, 

 a legislative policy common to other countries. 2 An American court 

 quotes with approval the words of an eminent jurist: " The owner of 

 one rood of land may stand in the way of any private enterprise, 

 however much the general utility may be thereby hindered, and 

 no human power in a free country where the principles of Magna 

 Charta prevail in their full force can compel him to budge one step." s 

 Under such exaggerated judicial views of private right it has, in 

 a number of instances, been necessary to obtain a change in the con- 

 stitution in order to carry out a legitimate legislative policy, and in 

 the matter of corporate privileges and exemptions the Supreme 

 Court of the United States has found it advisable to modify more and 

 more the view of the contractual obligation of the charter which 

 in the beginning it proclaimed in too unqualified terms. 



Judging from past experience, then, ;the net gain resulting to 

 American jurisprudence from the judicial enforcement of vested 

 rights is slight; and if it should be urged that we must take into 

 account the vicious legislation that the expectation of judicial control 

 has forestalled, the answer must be that if this effect could be proved, 

 it would not constitute a net gain, but simply the prevention of a loss 

 due to defects from which other systems appear to be free. 



The two other rights named in the Fourteenth Amendment are the 

 right of individual liberty and the right to the equal protection of 

 the laws. In a constantly growing number of cases the right of 

 individual liberty is being interpreted to mean a right to contract 

 free from legislative restraint, while the equal protection of the laws 

 is held to prohibit legislation singling out a class though not other- 

 wise violating its fundamental rights. Upon one or the other of 



1 Compare Westervelt v. Gregg, 12 N. Y. 202, with McNeer v. McNeer, 142 111. 

 388. 



2 Palairet's Appeal, 67 Pa. St. 479. 



8 New England Trout, etc., Club v. Mather, 68 Vt. 338. The words are Judge 

 Redfield's. ' 



