an act of Congress validating a defect in bonds of the Territory of Arizona was within the power of Congress.

The principle of the cases is declared to be by Mr. Justice Matthews, in Ewell v. Daggs, supra, "that the right of a defendant to avoid his contract is given to him by statute, for purposes of its own, and not because it affects the merits of his obligation, and that whatever the statute gives, under such circumstances, as long as it remains in fieri, and not realized by having passed into a completed transaction, may, by a subsequent statute, be taken away. It is a privilege that belongs to the remedy and forms no element in the rights that inhere in the contract." And such view of curative statutes is entertained by the Supreme Court of Pennsylvania, as indicated by its opinion in the present case and the cases there cited. The Federal question having been correctly decided, the judgment is

Affirmed.

NOBLE STATE BANK v. HASKELL.1

ERROR TO THE SUPREME COURT OF THE STATE OF

OKLAHOMA.

No. 71. Argued December 7, 8, 1910.-Decided January 3, 1911.

The charter of a corporation which is subject to the usual reserved powers to alter or repeal is not impaired unless the subsequent statute deprives it of property without due process of law. The broad words of the Fourteenth Amendment are not to be pushed to a drily logical extreme, and the courts will be slow to strike down as unconstitutional legislation of the States enacted under the police

power.

Where the mutual advantage is a sufficient compensation, an ulterior public advantage may justify a comparatively insignificant taking of private property for what in its immediate purpose is a private use. The police power extends to all the great public needs, Canfield v. United States, 167 U. S. 518, and includes the enforcement of com

See also post, p. 575, for opinion denying motion for leave to file petition for rehearing.

219 U.S.

Argument for Plaintiff in Error.

mercial conditions such as the protection of bank deposits and checks drawn against them by compelling coöperation so as to prevent failure and panic.

The dividing line between what is, and what is not, constitutional under the police power of the State is pricked out by gradual approach and contact of decisions on opposing sides; and while the use of public credit to aid individuals on a large scale is unconstitutional, a statute compelling banks to contribute to a guarantee fund to protect deposits, such as that of Oklahoma. under consideration in this case, is constitutional.

The Fourteenth Amendment does not prohibit States from forbidding a man to do things simply because he might do them at common law, and so held, that, where public interests so demand, that Amendment does not prohibit a State placing the banking business under legislative control and prohibiting it except under prescribed conditions.

The acts of December 17, 1907, and March 11, 1909, of Oklahoma, subjecting state banks to assessments for a Depositors' Guaranty Fund are within the police power of the State and do not deprive banks assessed of their property without due process of law or deny to them the equal protection of the law, nor do they impair the obligation of the charter contracts.

22 Oklahoma, 48, affirmed.

THE facts, which involve the constitutionality of the Oklahoma Bank Depositors' Guaranty Fund Acts, are stated in the opinion.

Mr. C. B. Ames, with whom Mr. D. T. Flynn and Mr. J. B. Dudley were on the brief, for plaintiff in error:1

The Oklahoma Depositors' Guaranty Fund Act is unconstitutional. The assessment is compulsory, not voluntary. It is. entirely unlimited and may take all of the assets of the bank. It does not operate simply upon banks chartered or re-chartered after its passage, but upon all banks both old and new.

The fund raised is not applied to any governmental pur

See also arguments for, and against, the constitutionality of the Depositors' Guaranty Fund of Nebraska, post, p. 114, and of Kansas, post, p. 121.

Argument for Plaintiff in Error.

219 U. S.

pose, but is donated to private citizens who happen to be depositors of an insolvent bank. The law requires a taking of the plaintiff's property for a private use. Savings & Loan Assn. v. Topeka, 20 Wall. 655; State v. Osawkee, 14 Kansas, 418; Lowell v. Boston, 111 Massachusetts, 454; B. & E. Ry. Co. v. Spring, 80 Maryland, 510; Missouri Pacific Ry. Co. v. Nebraska, 164 U. S. 403.

It is not an exercise of the right of eminent domain, nor is it an exercise of the power of taxation. Cases supra and Innes Co. v. Evert, 86 Fed. Rep. 597; Weismer v. Douglas, 64 N. Y. 91.

It is not a valid exercise of the police power. Hannibal & St. Jo. Ry. Co. v. Husen, 95 U. S. 465; Minnesota v. Barber, 136 U. S. 313; Lawton v. Steele, 152 U. S. 133; Reagan v. Farmers' L. & T. Co., 154 U. S. 362; Gulf, C. & S. F. Ry. Co. v. Ellis, 165 U. S. 150; Lake Shore & M. S. Ry. Co. v. Smith, 173 U. S. 684; Connolly v. Union Sewer Pipe Co., 184 U. S. 540; Chicago, B. & Q. Ry. Co. v. Illinois, 200 U. S. 561; Adair v. United States, 208 U. S. 161; Atchison, T. & S. F. Ry. Co. v. Campbell, 61 Kansas, 439; Colon v. Lisk, 47 N. E. Rep. 302.

It is, therefore, a taking of property without due process of law and violative of the Constitution of the United States. Holden v. Hardy, 169 U. S. 366; Cotting v. Goddard, 183 U. S. 79; Harding v. Butts, 18 Illinois, 503; Embury v. Connor, 3 N. Y. 512; Attorney General v. Boston & Albany R. R. Co., 35 N. E. Rep. 252; Mays v. Seaboard Air Line Ry. Co. (S. Car.), 56 S. E. Rep. 30.

In taking the plaintiff's property, it impairs the obligation of contracts and, being a taking without due process of law, cannot be upheld as an amendment of the plaintiff's charter. Cases supra and Fletcher v. Peck, 6 Cranch, 135; Sinking Fund Cases, 99 U. S. 720, 748; Lake Shore & M. S. Ry. Co. v. Smith, 173 U. S. 684; People v. O'Brien (N. Y.), 18 N. E. Rep. 692; Opinion of the Justices, 33 Atl. Rep. 1079, 1083; Hill v. Glasgow Ry. Co., 41 Fed. Rep. 615,

1

219 U.S.

Argument for Defendants in Error.

617; Grand Rapids Sav. Bank v. Warren, 52 Michigan, 557; 18 N. W. Rep. 356; Hathorn v. Calef, 2 Wall. 10; McDonnell v. Ala. G. L. Ins. Co. (Ala.), 5 So. Rep. 120; Ireland v. Turnpike Co., 19 Ohio St. 369; Vicksburg v. Waterworks Co., 202 U. S. 453.

Property cannot be taken for private use in the exercise of the police power. Classifying a statute as an exercise of the police power does not save it if it is in conflict with the Constitution.

Regulating railroads is clearly an exercise of the police power, but in so doing the State cannot do anything which takes for private use the smallest part of the railroad's property. Attorney General v. B. & A. Ry. Co. (Mass.), 35 N. E. Rep. 252; Atchison, T. & S. F. Ry. Co. v. Campbell, 61 Kansas, 439; Mays v. Seaboard Air Line Ry. Co. (S. Car.), 56 S. E. Rep. 30; Missouri Pacific Ry. Co. v. Nebraska, 164 U. S. 403; S. C., 217 U. S. 196.

The Gibbs Case, 142 U. S. 386, does not support a different doctrine.

Private property cannot be taken for private use by the amendment of corporate charters. Woodward v. Central Vt. Ry. Co., 180 Massachusetts, 599; Lake Shore & M. S. Ry. Co. v. Smith, 173 U. S. 684.

Mr. Charles West, Attorney General of the State of Oklahoma, with whom Mr. E. G. Spilman and Mr. W. C. Reeves were on the brief, for defendants in error:

The security of the public in its dealings with banks is a governmental function, and the creation of a mutual reserve fund is a safety to the public and a compulsory benefit to the banks. For definition of banking see Kiggins v. Munday, 19 Washington, 233; Niagara County Bank v. Baker, 15 Ohio St. 68, 87; American Nat. Bank v. Morey, 69 S. W. Rep. 759; Patterson v. Marine Nat. Bank, 130. Pa. St. 419; Houston v. Brader, 37 S. W. Rep. 467; People's Bank v. Le Grand, 103 Pa. St. 309, 314.

Argument for Defendants in Error.

219 U. S.

As to issue of circulation and of franchise see Bank of Augusta v. Earle, 13 Pet. 519, 596; Meyers v. Manhattan Bank, 20 Ohio, 295.

As to proper exercise of police power see Freund, §§ 400, 401 and 40.

Banking is a public business. Munn v. Illinois, 94 U. S. 113; State v. Rich Creek, 5 L. R. A. (N. S.) 875.

The Constitution is to be liberally construed, Gibbons v. Ogden, 9 Wheat. 187, and the law must be held to be valid unless plainly invalid. Hylton v. United States, 3 Dall. 171, 175.

A state statute modifying a common-law rule is not necessarily deprivation of property. Munn v. Illinois, 94 U. S. 113; Goodsil v. Woodmanse, 11 L. R. A. 421; Charlotte &c. R. R. Co. v. Gibbes, 142 U. S. 386; Cooley v. Wardens, 12 How. 298; Tenny v. Lentz, 16 Wisconsin, 566; Vanhorn v. People, 46 Michigan, 183; Holst v. Row, 29 Ohio St. 340; Town of Wilton v. Town of Weston, 48 Connecticut, 325; Morgan Co. v. Louisiana Board, 118 U.S. 455; N., C. & St. L. R. R. Co. v. Alabama, 128 U. S. 98; Mobile v. Kimball, 102 U. S. 691; New York v. Squire, 145 U. S. 175; Head v. Amoskeag Manufactory Co., 113 U. S. 9; Wurtson v. Hoagland, 114 U. S. 606; State v. Board, 87 Minnesota, 325; 92 N. W. Rep. 216; Swift v. Calnan, 102 Iowa, 136; 37 L. R. A. 462; Firemen v. Louisburg, 21 Illinois, 511; Milwaukee v. Helfenstein, 16 Wisconsin, 142; Firemen v. Roome, 93 N. Y. 313; Phoenix Co. v. Montgomery, 42 L. R. A. 468.

All banking can be made a franchise. Zane on Banking, §§ 7, 15; Morse on Banks, § 13; State v. Woodmanse, 11 L. R. A. 420; Myers v. Manhattan Bank, 20 Ohio, 295; State v. Stebbins, 1 Stewart, 299; Allnutt v. Inglis, 12 East. Rep. 527; Munn v. Illinois, 94 U. S. 113; Hale de Portibus Maris, 1 Harg. Law Tracts, 78.

The exercise of police power over the subject of banking violates no vested rights. Sioux City Co. v. Sioux City,