40 Ala. 476 | Ala. | 1867
— Upon the principles settled in the case of Nailson v. Goolc, at the present term, the administrator had authority to receive Confederate treasury-notes. His investment in four-per-cent, bonds, for which he received the certificate entitling him to the bonds, it is contended, should have been reported according to the terms of the 4th section of the act of 9th November, 1861.— Pamphlet Acts, p. 53. If that be admitted, it can not affect the result; for, before the administrator could be charged on account of the investment of Confederate treasury-notes in that way, it should appear that the estate was injured thereby. This does not appear to our satisfaction. The administrator was not required to pay the debts of the estate until eighteen months had expired, and that period did not expire until the 15th January, 1864. The case must be reversed upon another ground; and if it should appear, upon a future trial, that the estate sustained detriment by the investment in four-per-cent, bonds, and that the investment was not reported as required by the statute, then the administrator should be charged, to the extent of the damage. We can not distinguish between an investment in four-per-cent, certificates, and an investment in bonds. The money was paid for the bonds, and the certificates were issued as evidence of the right to the bonds, which were tp be delivered at a future time.
In so far as tbe rulings of tbe court below vary from the principles above stated, they are erroneous.
Reversed and remanded.
It is a fundamental principle of tbe common law, well and firmly supported by reason and authority, that tbe legislative department of tbe government cannot divest a citizen of a lawfully acquired right or title to property ; and tbe maxim, nemo potest mutare consilium suum in alterius injuriam, is a principle of tbe common as well as tbe civil law; and is applicable, in a free government, as well to tbe government as to individuals.
This principle, and tbe application I shall make of it to tbe facts of this cause, are sustained by tbe reasoning and authority of tbe following adjudications and references:
Bracton, lib. 4, fol. 228; 2 Inst. 292; 1 Black. Com. 41, 91, 161-2; 1 Fonb. Eq. ch. 1, § 3; Story on Const. § 1399; 1 Bish. Mar. & Div. 776-84; 10 Mod. 115; Gilmore v. Shuter, 2 Lev. 227; 3 Rep. 118 a; City of London v. Wood, 12 Mod. 637; 1 Kent’s Com. 448-508; Day v. Savage, Hob. 87; Bonham’s case, 8 Rep. 115; Wilkinson v. Leland, 2 Peters, 657; 8 Wheaton, 493; Ogden v. Blackledge, 2 Cranch, 272; Dash v. Van Kleeck, 7 John. 447; Ham v. McClaws, 1 Bay, 93-8; Bowman v. Middleton, 1 Bay, 152; Commonwealth v. Worcester, 3 Pick. 462-72; Bates v. Kimball, 2 D. Chip. 77-89; Medford v. Learned, 16 Mass. Rep. 215-17; Calder v. Bull, 3 Dal. 386; Cochran v. Van Surley, 20 Wendell, 365-73; Varick v. Smith, 5 Paige, 157-9;
. These authorities are not harmonious; but giving them all a fair consideration, I adopt the principle above announced, and make the application of it to the facts of this case, as is hereinafter made.
In the case of Dash v. Van Kleeck, (supra,) Kent, C. J., says : “It is a principle in English common law, as ancient as the law itself, that a statute, even of its omnipotent parliament, is not to have a retrospective effect.” — 1 Black. Com. 161-2. In the same case, he further says : “It is not pretended that we have any express constitutional provision on the subject; nor have we any for numerous other rights dear to freedom and to justice. An ex-post-facto law, in the strict technical sense of the term, is usually understood to apply to criminal cases; and this is its meaning when used in the constitution of the United States; yet laws impairing previously acquired civil rights are equally within the reason of the prohibition, and equally to be condemned. We have seen that the cases in the English and civil law apply to such rights; and we shall find, upon further examination, that there is no distinction in principle, nor any recognized in practice, between a law punishing a person criminally for a past innocent act, or punishing him civilly by divesting him of a lawfully acquired right.”
In the case of Ogden v. Blackledge, (supra,) the court con
The constitution of the United States prohibits any State from passing a law impairing the obligation of contracts; and by the 5th article of the amendments thereto, it is expressly provided, that “privateproperty shall not be taken for public use, without just compensation.” I cannot see how, in the face of these fundamental guaranties, private property can be taken for private use, or how vested rights to property can be divested, or abrogated, by the legislative department of the government. If the obligation of contracts is so carefully and sacredly guarded by the Federal and State constitutions, certainly the vested right which the owner has to the property conveyed by a contract is equally well protected; as well after as before the property is reduced to actual posession. It would be a singular anomaly if it is to be held that the obligation of a contract cannot be impaired by the legislative department, and yet it is competent to impair or destroy the right to the chose in action, or other thing transferred by the contract, after being reduced to possession. If private property cannot be taken for public use, it cannot for private, without just compensation.
If, in the regulation of the remedy, the collection of a pre-existing debt is unnecessarily delayed, impairs the obligation of a contract, as some high authorities hold, would it not be monstrous to hold that the vested right of the contract itself, or any chose in action, could be impaired or abrogated by the legislature ? I hold that there is a broad line between its power over the regulation of the remedy and use of property, and its power to impair or defeat the right to property. The first power exists, the latter does not; and the only difficulty about that line is in ascertaining what is matter of remedy, and what of right. A State convention is not competent to violate the constitution of the United States, or deprive any one of the guaranties of that supreme law of the land.
Upon the grant of letters of administration, the legal title to the personal property of the deceased, within the
It was held in Weaver’s Ex'rs v. Weaver’s Creditors, (supra,) by this court, that an executor had no vested right, personal to himself, in the office of executor, which would prevent the legislature from enacting a law, the effect of which, in the case of the insolvency of the estate, would deprive him of such office; but, at the same time, the court held, that he could not be deprived by statute of a vested personal right. This being so, it certainly results that the creditors, distributees, or legatees, could not be deprived of their rights or interest to or in the estate, by legislative enactment. It is true that, in the one case, the law alone may confer the right, and in the other the will of the testator and the law; but this can mafie no distinction — the rights of each are equally sacred and inviolable.
In the case of Society, &c., v. New Haven, (8 Wheaton, supra,) Justice Washington, delivering the opinion of the court, says: “If, for example, a statute of descents be repealed, it has never been supposed that rights of property already vested during its existence were gone by such repeal. Such a construction would overturn the best established doctrines of law, and sap the very foundation on which property rests.”
So far as the case of Bryan et al. v. Weems, (21 Ala.) is in conflict with these views, it is not held by me as authority on the question under consideration.
The appellee relies upon the fourth section of an act approved February 23d, 1866, (Pamphlet Acts, 114,) to sustain the allowance by the court below of voucher No. 57 as a credit to him. The credit claimed was a four-per-cent. Confederate States certificate, for two thousand dollars, in which the funds of the estate had been invested. If the administrator made the investment under the authority of
' The investment not having been authorized by law at the time it Avas made, it can not, by a subsequent act of the legislature, be so legalized as to deprive the creditors and distributees of their right to the money so invested, or to hold the administrator liable for its conversion, even if it was Confederate money; for a conversion of anything belonging to an estate, by the trusiee, implies injury — the amount alone must be proved. Such a result would be in conflict with the principle, or maxim, nemo potest mutare, and the precedents furnished, in the above adjudications referred to, for its application.
Neither the act of 1861, nor any subsequent act, authorized the appellee to invest in four-per-cent certificates, or any other certificates. Nor does the act of 1866 ratify or attempt to ratify an investment in such certificates.
Whether the appellee should account for, or be charged with, the two thousand dollars so invested, I intimate no
The conformity of the acts, passed by the State legislature during the late war, authorizing the investment of trust funds in Confederate bonds, to the national constitution, does not lie across the line of my argument, and I do not deem it necessary to intimate any opinion upon that very grave and interesting question. The main question is, whether voucher 57 is a legal credit in favor of the appellee; and I hold that it is not, even if those acts were valid and constitutional. And I further hold that the act of 23d February, 1866, gives no validity to that voucher.
My brethren agree with me in the result, but upon other grounds, as stated in their opinion. The decree of the probate court is reversed, and the cause remanded.