10 Tenn. 599 | Tenn. | 1831
By the act of 1829, ch. 95, a court is directed to be holden at Nashville, to consist of a judge of the supreme court, a chancellor, and a judge of the circuit court, with power and authority, upon complaint being made by the bank, to hear and determine all cases against the officers of the bank and their sureties, and against persons who may have overchecked, and thereby become defaulters to said bank. The court is empowered, by the act, to call the defendants before it, and examine them on interrogatories, to hear evidence, and to determine the causes according to the principles of a
The defendants plead, that Jacob Peck, Nathan Green, and William E. Kennedy, have no power or authority to hear, try, and determine said complaint, nor have they jurisdiction thereof, by the constitution of the United States and the constitution of Tennessee, and the law of the land, with an averment that jurisdiction is in the county or circuit courts of Davidson.
In support of this plea, several constitutional grounds have been taken.
1. It is contended, that this is a special court,having no relation to the other courts in this state; and is not therefore, “superior or inferior,” within the meaning of the first section of the fifth article of the constitution.
2. That judges can only be created by an election by joint ballot of both houses of the general assembly; and not being thus appointed, therefore the persons named in the act of assembly as judges of this court, are not constitutionally such.
3. That the- law is retrospective.
4. That it violates the right of trial by jury.
1. Upon the first proposition, it will only be necessary to recur to the language of the constitution, (Art. v. sec. 1,) in which the judicial power of the state is vested in such superior and inferior courts of law and equity as the legislature shall, from time to time, direct and establish. Had the framers of the constitution intended to restrict the legislation upon this subject to the courts then in operation, and only meant to authorize an increase of them, or the number of places of holding them, they would have used very different language. To create a new district, and appoint additional judges to hold the court there, or to direct the sittings of the court of pleas and quarter sessions in a new county, would not be the establishment of courts, in the sense here indicated. There is but one supreme court in the state, although it holds sessions at several places. So the creation of new districts would only have been providing for the sitting of the district court at additional places. Nor can it be seen, that it was intended to restrict legislation to the creation of such courts as should be appealed from, and therefore, “inferior;” and an appellate court, which would be therefore, “superior.” The right oí appeal is only conferred by statute. No constitutional provision requires that it should exist. This cannot therefore, be the sense of these-words. It would be perfectly competent for the legislature to abolish the supreme court, and take away the right of appeal from the county to the circuit court. Each-would then exercise its own peculiar jurisdiction, and'be supreme within its sphere of fiction. I conclude, as a necessary consequence from what has been said, that the legislature has power to create as many different courts as the wants of the country may require, and each to be as distinct and independent of the other, as the court now under consideration is distinct.and independent of all others in this state.
2. The next .consideration is, as to the appointment of the judges. It is most clear, that judges cannot rightfully
I now come to the three remaining objections; that the law is retrospective; that it takes away the right of trial by jury; and that, as it regards the defendants, it is partial in its operation.
has said (Tipton vs. Harris, Peck’s Reports, 418,) that “the sovereign legislative power of Tennessee, like the sovereign power of all other states, of whatever character they may be, may do all things, not
In the case before the court, the suit is upon a bond with condition faithfully to perform the duties of .clerk. Of this case, it is clear, a court of equity would have no jurisdiction ; but, according to the general laws of the land, it would be triable in the common law courts by a jury. The sixth article in the bill of rights declares, that “the trial by jury shall remain inviolate.” By the act constituting this court, the causes are to be tried according to the principles of a court of equity. In courts of equity there is no jury, except at the discretion of the chancellor; and-after the jury find the facts upon an issue sent to them,
In Holden vs. James, (11 Mass. 396) the court decide, that it is not competent to suspend the operation of the statute of limitations in a particular case, and that such law is unconstitutional. Such an act would be void because of its partial operation. It is provided’in our bill of rights, (article viii,) “that no freeman shall be taken or imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or the law of the land.”
By Haw of the land” is meant a general and public law, operating equally on every individual in theucommunity. Such is the opinion of Judge Catron, in the case before referred to, and such was the opinion of Lord Coke upon' the construction of magna charta. In his commentary on this instrument, (2 Institute, 51) he says, that the térms
If the construction here contended for, be not the true one, it seems to me, that an edict in the form of a legislative enactment, taking the property of A, and giving it to B, might be.regarded as the Haw of the land,” and not forbidden by the constitution; but such a proposition is too absurd to find a single advocate. This provision was, introduced to secure the citizens against the abuse of power by the government. Of what benefit is it, if it impose no restraint upon legislation? Was there notas just ground to apprehend danger from the legislature as from any other quarter? Legislation is always exercised by the majority. Majorities have nothing to fear; for the power is in their hands. They need no written constitution, defining and circumscribing the powers of the government. Constitutions are only intended to secure the rights of the minority. They are in danger. The power is against them; and the selfish passions often lead us to forget the right. Does it not seem conclusive then, that this provision was intended to restrain the legislature from enacting any law affecting injuriously the rights of any citizen, unless at the same time, the rights of all others in similar circumstances were equally affected by it. If the law be general in its operation, affecting all alike, the minority are safe, because the majority, who make the law, are operated on by it equally with the others. Here
Apply these principles to the case before the court. A particular description of the debtors of the bank of the state are assumed to be in default, and to have incurred liabilities to the bank. The right of action has already-accrued, and the courts of common law have clearly exclusive jurisdiction. Here the defendants would have been entitled to a trial by j ury, and to an appeal to the supreme court. In this state of the case, the legislature passed the act under consideration, giving to this court the jurisdiction of those particular causes only; direct the mode of trial to be according to the principles of a court of equity, (which is without jury,) and declare that there should he no appeal, at the same time the law, as it regards all others, remaining unchanged.
This law only acts upon individual cases, and is the same in principle, as if a law had been passed in favor of some one merchant, enabling him, by the method therein prescribed, to take judgment against his debtors without the right of appeal. The interest which the people have in the bank, is a sufficient reason why the legislature should feel a deep solicitude to secure its funds, but is no reason why they should overstep the limits of legislative authority to effect this end. Nor is it any reason why the court should enforce an act passed without sufficient deliberation, which infringes, as we believe, the constitution. Two important privileges, the trial by jury, and the right of appeal, are by this act taken away in these special cases, while every other member of the community, having incurred similar liabilities, enjoys them. The fact, that the persons embraced in this act form a class of the debtors to the bank, tends no more to give it the character of a general law, than if the act had operated on one individual debtor only, whose case might have some peculiarity distinguishing it from that of all other debtors. Other banks,' and many merchants, and many other members of the community, have contracts similar to the one set out in this bill. In order to have avoided the force of
j have the highest respect for the legislature as a co-ordinate department of the government; and whenever they pass an act, the presumption is in favor of the power: nor are we to disregard it upon a mere' doubt, nor unless constrained by the high obligations imposed by our oaths to support the constitution. But when we cannot enforce the act and support the constitution, the act is not law, and imposes no obligation.
An act was passed on the 13th January, 1830, by the Legislature of Tennessee, providing that a special court should be organized, to consist of Jacob Peck, one of the judges of the-supreme court; Nathan Green, one of the Chancellors of this State; and William E. Kennedy, one of the Judges of the circuit courts, any two of whom might form a quorum to do business; with power to appoint a clerk and a sergeant at arms; to sit in Nashville; to meet on their own adjournments; and “with power to do all other things properly appertaining to their appointments, necessary to be done for the purposes of effecting the objects hereinafter mentioned.” The act then prescribes the duty to be performed, and confines it to hearing and deciding upon complaints of the Bank, “that any person or persons are in default, or indebted to said Bank for any breaches of trust, or money they may have received and failed to account for, or for any other cause;” giving power to direct process and bring such persons, &c. But it provides, that the jurisdiction should be confined to such cases only as are made on behalf of the 'Bank, and that the court should not be authorized to pronounce a judgment or decree against any person or persons except such as by over-checking or otherwise, have improperly received the money, billsj notes, or other valuable papers belonging to, or on deposit in said Bank, or such person or persons, officers of said institution, as may have been guilty
The jurisdiction to be exercised is to be supreme in its sphere, and no right of appeal is allowed. It is specially provided, that “the principles governing the courts of chancery, shall be those by which said court shall be governed.” The court may compel the parties to appear and answer interrogatories; and if, on a full and fair investigation, it should appear thj^fi any person or persons complained of, were in default or indebted, the court should forthwith pronounce such judgment or decree as may seem right according to the facts of the case, (without regard to the form or substance of the complaint,) against the person or persons so in default or indebted, and their securities, if any there be.
There are other provisions in the act, such especially as give rules for process, execution, &c. and there is a final clause, authorizing the court to form its own rules of proceeding, so far as they have not been expressly provided.
The persons specified as members of the court, have considered it their duty to convene according to the provisions of the act, and they have appointed the officers required and authorized thereby.
Complaint has been made by bill, against Charles Cooper and his securities, charging the former, in substance, with having withdrawn money from the Bank at sundry times, to a specified amount; and with having been guilty of gross neglect, in not keeping the accounts and books of the Bank, in such manner as to show the state and condition of the institution. The bonds given by Cooper and his securities for a faithful execution of the trust reposed in him, are exhibited. Subpoenas having been served, the defendants have appeared and pleaded, that this court has no jurisdiction or right, to hear and determine the question under the act constituting the court, but that the county or circuit court of Davidson county, have
Not pretending to follow the order pursued in the discussion of the question, I shall consider:
1st. Does the act in question, in effect, deprive the parties of the benefit of a trial by jury, and therefore conflict with the sixth section of the Declaration of Rights?
The right of trial by jury, is not in express terms'taken away by the act. It may be implied, that the common law right oLtrial by jury in this, being a civil case, is taken away byThat part of the act which directs the court to proceed according to the principles of equity. Still, from the last clause of' the act, as one of the judges sitting under it, I would deny no man the trial of the facts of his case, an issue being tendered, by an impartial jury. The constitution and the law both being before me, I would as far as possible, construe the latter in such way as to make it consistent with the former, and give to the parties in this particular, what is common to all other suitors. The rules that I would adopt should not be arbitrary; at least, I would endeavor to guard against appearances that might justify the imputation. But while I say this, I am free to own, that an act which gives such extraordinary powers, powers so nearly bordering on discretion, so speedy, so summary, and so regardless of forms, ought certainly to be regarded by the judge with circumspection; under it he should move with caution and hesitation, especially if it have the appearance of pointing singly to its object,
It might indeed be said, and with much propriety, that the right of trial by jury is taken away, when it is not contemplated that an issue should be made, and the means of procuring a jury is not provided. Honest judges might differ as to the propriety, or even possibility of calling a jury under the act; and a doubt upon a point so important, ought to induce the judges here to turn the cause over to that tribunal where the jury cannot be denied.
2ndly. Is the act creating this tribunal, consistent with
The power given in the constitution to establish courts is not disputed; but the question raised is, whether the character of this court is such, that there is a discordance between its powers, and the powers assigned to the courts by the constitution. The framers of the constitution never dreamed of admitting the exercise of arbitrary powerin any department of the government. The legislative, the executive, and the judicial departments, are three lines of equal length, balanced against each other, and the frame work forming an equilateral triangle, becomes stronger, the more its parts are pressed. Like the foundation of our religion, the trinity, it is the key on which the whole arch rests. The people have erected it; they have seen its suitability for duration, and compared its proportions with the external view of the pyramid, whose age is untold, and which alone, of all the works of man, has withstood the ravages of time.
Seeing these powers balanced, it is our province to look into the constitution. It is there, a judge must measure length with a legislator, or with an executive officer.
The first question is, how shall we know him to be a judge? And the next, how shall we know the extent of his powers? For answers to these questions, we must resort first to the constitution.
A judge then, is one elected to the office by the legislature. When commissioned, what may he do ? By the constitution, he shall take an oath. If of the superior court, he shall be a justice of oyer and terminer, and general jail delivery throughout the State. For the furtherance of justice, he may use the extraordinary writ of certiora-ri in civil causes. He shall appoint his own clerk, to hold the office during good behaviour, and such clerks may issue his writs. (See Const. Art. v.) He shaZl keep his court open, that every man, for an injury done him, may have remedy by due course of law.
What may he not do? He shall not charge jurors with regard to matters of fact, though he may declare the law.
In short, the vi, vn, vm, ix, x, xr, xrr, xm, xiv, xv, xvi, xvii, xxiii, xix, xx and xxv articles of the Bill of Rights, are expressly addressed to the judges. The judges are not only forbidden to violate these sections themselves, but they are clothed with ample power, and required by the most solemn obligations, to see, that as to any and every citizen, they are not violated in one jot or tittle. To carry into effect these objects, the statutes and common law have laid open a warehouse of ways, means and processes, that the power of the judges may not for want of plans, he defeated in upholding constitutional rights.
But, it may be asked,- what are we to infer from all this? I answer, that in looking into the constitution to find the dimensions of justice, she is seen laying her hand as well upon the eastern extremity of the State as upon the western. The higher order of courts have a superintending control every where. The inferior are supposed to be kept in constant check, and their measure of justice to each,meted out in uniformity; and while we see this system pervading one whole, we are called upon to notice, as well for our own safety, as for the safety of the citizen, within a limited “sphere of action” a tribunal from which no appeal Iks; unusual duties assigned to some of its members, though consistent enough with others; in short, our circle,bounded to a span, is found to be within another circle; two powers, the one moving forward with means broad and ample, the other instructed to look to the object, not to the means.
But the amalgamation, if S may use that term, of the judges, to make a court, would not appear so exceptionable, if we did. not consider, that at this moment each judge is demanded in his proper sphere; a sphere assigned to him when he took upon himself the duty; and that in fact he is here acting in the place of, and for another judge, to whom, by the law of the land, this case more properly belongs. I ought not to sit here, and anticipate his writ of prohibition.
Srdly. Is the act upon its face, partial in its provisions, and personal in its application, affording advantages to one side, and withholding them from the other, by such provisions as are found not to apply to other portions of the community,liesides those specified in the act?
This is a delicate question. I am confident that the framers of the law did not intend that the act should be subject even to such a suspicion; but times do arise when men are hurried into measures, which on cool deliberation, they might themselves condemn. Putting intentions aside, what are the provisions of this act? It provides,
It will be remarked here, that the judges are selected. It is very possible that the framers of the law did not anticipate that they would be time-serving. It is however a high trust. The task would seem to be easy, for they were to inquire andgive judgment or decree; and there is additional compensation given for the service, which may at least be taken as some proof that the legislature thought the duty not properly belonging to the office of judge, before held by the members of this court, respectively.
The duty assigned to this court is aside from the duty-belonging to its members as judges; the act relates to the few specially named in it; the rules by which we are to be governed, are not those common to the rest of the community; the right of trial by jury, is made discretionary, if not absolutely taken away by the act, and the right of appeal is taken away in express terms: under these circumstances, is the law of the land likely to be afforded to the defendants?
When I am acting under the constitution of my country, and the equal distribution of rights becomes a question, I am not to forget that our ancestors knew, before the making of our constitution, that when a Sidney was to be tried, a Jeffries had to be selected.
Week and feeble as my walk may be in the station I occupy, it shall be my endeavor to move with evenhanded justice. The franchises of the State might become
Upon this last point, I am clear that the act is unconstitutional and void.
The statement of the material parts in this case, it is believed, is correctly made by Judges Peck and Green. It is not necessary to repeat them here. The only question for our consideration is the sufficiency of the defendant’s plea; an examination of which, necessarily and unavoidably involves the consideration of the constitutionality of the statute organizing this court, and defining its powers and jurisdiction. It will be seen by reference to that statute, that the legislature has by name designated three individuals, filling three different and distinct judicial offices, to hold this court, and has required of them the performance of certain duties, in the discharge of which, important judicial functions, and a jurisdiction of an extensive character, materially concerning the rights of private individuals, have tobe exercised.
. That the legislature has the power to establish such superior and inferior courts of law and equity as may be deemed necessary for the public interest, is beyond all controversy. The first section of the fifth article of the constitution is conclusive on this point, which says, “the judicial power of the state shall be vested in such superior and inferior courts of law and equity as the legislature shall from time to time direct and establish.” This section does not require, as defendants’ counsel have insisted, that these superior and inferior courts shall be such alone as existed at the time the constitution was adopted; nor does it limit the number. The legislature may establish as many courts of both law and equity, as they may think proper; nor are they bound to make any one subordinate to another, as was also insisted. The territorial limits of the jurisdiction, and the extent and description of jurisdiction that the several courts shall have and exercise, are referred exclusively to the wisdom and discretion of the legislature; and when such courts are established, it is
To ^is conclusion I bring my mind from the consider-atiorij ¿hat j find fn th.e constitution, no clause either expressly or impliedly denying to the legislature the exercise of such a power; on the contrary, I conceive the power is clearly granted in the clause quoted. But when these several courts have been established, the constitution prescribes the manner of appointing the judges. It cannot be by legislative enactment. It must be by joint ballot of both houses. Article 5th, section 2, of the constitution, is in these words: “the General Assembly shall by joint ballot of both houses appoint judges of the several courts of law and equity.” In doing this, the members exercise an electoral, and not a legislative function. After the election, it is the duty of the Governor to commission them, which he issues under the seal of the state. (See article 2, section 16; acts 1809, ch. 49, sec. 7.) The election by joint ballot, and the commission by the Governor, designate the office and the person of the judge. When the office is ascertained, and the judge appointed, he must look to the general laws of the land for his duties, and the jurisdiction of his court. It is not competent for the legislature by name to appoint a judge to a particular court for which he has' not been specially elec-tee; that would be assigning him to an office contrary to the express language of the constitution, which cannot be. But, it is insisted, this is not creating a new office, but only an assignment of new duties. Whether it be the creation of a new office or not, perhaps it is not material now to decide. It may not be, and most probably is not, a new office. It is certainly a new courts totally distinct from, and unconnected with the courts of the several judges respectively, now presiding. It is not a branch or part of the circuit courts; nor of the chancery courts; nor of the supreme court. It does not proceed according to the rules prevailing in either of these courts. But it is emphatically a court sui generis; the statute calls it a “special court.'' If then, it is not of the class of courts for
It appears to be the policy of the law, that all the judges and other public officers, shall act upon oath. In the act of 1809, ch. 49, sec. 7, the form of the oath is prescribed for the circuit judges, a part of which is in these words: “that I will faithfully and impartially discharge and perform all the duties incumbent on me as a circuit judge” By section 24, the judges of the supreme court must take an oath, “to discharge faithfully and impartially all the duties of their office.” In the acts organizing the chancery courts, the judges are also required to take an oath to dis. charge the duties of chancellor. If this court form not a part of the system of the circuit courts, chancery courts, or supreme court, as I have already shown it does not,the judges holding this court would be performing high judicial functions, without having taken any oath of office. This statute prescribes no oath. The duties to be performed by the judges severally in their respective offices, do not include the class of duties assigned them in holding this particular court. Nor are such duties as these embraced by the oaths of the judges respectively. The conclusion is irresistible, that the high and important duties of the
The premises assumed, and the conclusions drawn in this argument, do not deny to the legislature the power to abolish the supreme court, or any other court, and to organize a new court in its stead, or to distribute amongst the other remaining courts, the jurisdiction of the one so abolished; as by appointing a court of conference tobe holden by all the circuit judges, which they could evidently do. In that case, the action of the legislature would be upon the "office, affecting equally all in the same office, whereas by the statute under consideration, particular judges are designated by name, and ordered to perform certain duties not necessarily connected with their respective offices, and which are not enjoined upon the other judges filling the same offices. In the first case, the action of the, legislature would be constitutional, by affecting all the citizens equally in the uniform operation of the law upon all the judicial officers of the same class; whereas, in the case before us, the statute operates upon the judges individually, in the nature of an order or command, which is neither “uniform” nor “universal,” but partial and void.
But there is another point of view in which the statute is equally or more objectionable, than that in which we have already considered it. It establishes a special and
The statute contemplates the arraignment of certain particular debtors to this bank, before a tribunal where no other person can sue or be sued, and to have their rights ascertained and settled by rules that apply to no
At the time when our constitution was formed, these words had assigned them by the law, a specific and definite signification. This was known to the members of the convention at the time they employed the expression. If so, we are obliged to give them the same meaning which was known to have been assigned to them by the law at that time. For the purpose of ascertaing the import of these words, it is unnecessary to refer to their origin. The history of Magna Charta is identified with the law. The adjudications upon that instrument before
The right of trial by jury, has at all periods in the history of this country and of England, been held in high estimation, and the framers of our constitution, not content to secure it by the use of the words employed in Magna
Bill dismissed.
Ante, page 260.