34^ HARVARD LAW REVIEW. that rights acquired under a statute may be lost by its repeal." This conclusion is strengthened by the expressions of the court in cases expressly based upon Gelpcke v. Dubuque. In Township of Pine Grove v. Talcott,^ for example, the court said : — "The national Constitution forbids the State to pass laws impairing the obligation of contracts. In cases properly brought before us that end can be accomplished unwarrantably no more by judicial decisions than by legislation." So, too, in Douglass v. County of Pike,^ Chief Justice Waite said: — "The new decisions would be binding in all respects as to all issues of bonds after they were made ; but we cannot give them a retroactive effect without impairing the obligations of contracts long before entered into. This we feel ourselves prohibited by the Constitution of the United States from doing. . . . The true rule is, to give a change of judicial construction in respect to a statute the same operation on contracts and existing contract rights that would be given to a legislative amendment; that is to say, make it prospective but not retroactive." Upon this ground, that it presented a Federal question of the impairment of the obligation of a contract, some writers have supported the case. Mr. Conrad Reno^ and Mr. William B. Hornblower* both appear to regard this as the true and sufficient basis of the decision, and in this opinion they are in evident accord, as has been shown, with the judges who made it. That an exten- sion of the Federal jurisdiction to the protection of contracts from judge-made law as well as from statutes, would be legislation in the interest of justice and fair dealing, is readily admitted ; but the great obstacle in the way of supporting the decision on this view is that the Iowa decision, which, it is claimed, impaired the obligation of a contract, was not in any proper sense before the court. The writ of error was directed to the United States District Court, not to the Supreme Court of Iowa. The litigation in the former court was between Gelpcke and the city of Dubuque, in the latter between the State, on the relation of a domestic corporation, and the County of Wapello. The Supreme Court decision cannot therefore be regarded as a reversal of the decision of the Iowa 1 19 Wall. 666. 2 loi u. S. 677, 8 " Impairment of Contracts by Change of Judicial Opinion." 23 Am. Law Rev. 190.
- "Conflict between Federal and State Decisions." 14 Am. Law Rev. 211, 216.
