5 Ga. 194 | Ga. | 1848
By the Court.
delivering the opinion.
The General Assembly of this State, on the 11th day of December, 1841, passed an Act “ to give to all persons employed in steamboats and other water-craft on the Chattahoochee, Altamaha, and Ocmulgee livers, a lien on said steamboats or watercraft, for his, her, or their wages, and for wood and provisions furnished, and to point out and facilitate the mode of the collection of the same. (Pamphlet Laws of 1841, p. 167.) Section 1 declares " that from, and immediately after the passage of said act, all persons employed either as captain, pilot, engineer, first or second mate, fireman, deck-hand, or in any oilier capacity whatever, on all steamboats and other water-craft engaged in the navigation of the Chattahoochee, Altamaha, and Ocmulgee rivers, for any debt, dues, wages, or demands, that he, she, or they may and shall have against the owner or owners of said steamboat or other water craft, for personal services, done, rendered, or performed on board the same, and for wood and provisions, an exclusive lien on said steamboat or other water-craft, against the owner or owners thereof, superior in dignity to, and of higher claim than all other incumbrances, no matter of what nature or sort the same may be, proiided he, she, or they shall demand and present the collection of the same, as hereinafter to be provided for, at any time within twelve months after the same shalt become due and payable.”
Sec. 2. “ And be it further enacted, That whenever any captain, pilot, engineer, first or second mate, fireman, deck-hand, or
Sec. 3. “ And be it further enacted, That whenever any owner or other persons, having control of any steambeat or other watercraft, against which any .proceedings may be had under the fore
Sec. 4. “ And be it further enacted, That all the provisions of this act shall apply to all stearmboat.s and water-craft navigating the Altamaha and Ocmulgee rivers, and that all jiersons who furnish wood and provision to said steamboats or other water-craft, shall have the same remedies as herein before provided.” Ib. p, 8, 167, 168,189.
In 1845, the Legislature passed the following act to extend the provisions of the Act of 1841, and to include Flint river therein : “ Be it enacted, i\-c. That all the provisions of the above recited Act be, and the same are hereby extended to all persons employed on steamboats and other water-craft on Flint river. And whereas it frequently happens that persons employed on said steamboats and other water-crafts on said Chattahoochee, Ocmulgee, Altamaha, and Flint rivers, are negroes and free- persous of color, be it therefore further enacted, that whenever any negro, being a slave or free person of colof, shall be employed as pilot, engineer, first .or second mate, fireman,' deck-hand, or in any
On tho 0th of July, 1847, Nelson P. Foster applied to Win. S. Beall, junior, a Justice of the Inferior Court in and for the county of Decatur, for an order in. terms of the Act of 1841, alleging on oath that the Flint River Steamboat Company was indebted to him $155 55, for his services as carpenter, rendered the said Company before that time, in and about the steamboat Magnolia, the property of the said Company, and at their special instance and request, as would more fully appear by the bill of particulars annexed to his petition. A judgment was'entered up in favor of Foster, execution issued, and was levied on said boat. The Company, by their agent, James R. Butts, filed a counter affidavit, stating that the whole amount claimed was not due ; and gave bond and security, as required by tho Statute.
In the Court bolow, counsel for the Company insisted, among other things, that the Acts of 1841 and 1845 were repugnant both to the Constitution of the United States, and of the State of Georgia; and by agreement between the parlies, this is the only point submitted for the consideration of this Court.
I cannot subscrsbe to this doctrine, especially in its application in this country, where the powers and province of each department of the government are so accurately defined And adopting the language of Mr. Christian, “ with deference to these high authorities, I should conceive that in no case whatever, can a Judge oppose his own opinion aud authority to the clear will and declaration of the Legislature,” so long as it acts within the pale of its constitutional competency. The province of the Court is to interpret and obey the mandates of the supreme power of the State, however absurd and unreasonable they may appeal-. And such would seem to be the opinion of Judge Blackstone himself. For, on the same page which has just been cited, he maintains that the Legislature is in truth the sovereign power; that its authority is absolute, “acknowledging no superior on earth”
This, however, is not an open question, under the agreement upon which this case is brought up. I shall proceed, therefore, to notice briefly, another point which has been mooted before us.
There are several suggestions to make, however, as it regards this principle. 1st. That it only obtains in the absence of positive laxo. The Legislature may unquestionably authorize a judgment to be rendered against a party without notice. If the expressions used in the Statute will admit of a doubt, it will not then be presumed, that a construction dispensing with notice can be agreeable to the intention of the Legislature, the consequences of which are so unreasonable. But where the signification is manifest, there is no power of dispensation in the Courts. And such seems to have been the opinion of Chief Justice Marshall, in Mode vs. The Deputy Marshal of Virginia, 1 Brock. R. 334. “ It is a principle of natural justice,” he observes, “ which Courts are never at liberty to dispense with," unless under the maxidate of positive law, that no person shall be condemned unheard, or without an opportunity of being heard.”
Barton vs. Nelson, 3 Johns. 474, was a case precisely similar to the present. Neilson was an overseer of the highways in and for District No. 6, in Stillwater in the county of Saratoga, and according to the direction of the Act “ to regulate highways,” passed 8th April, 1801, (Laws of N. Y. v. 1, p. 588,) made a complaint in writing to the Justice, that Benton had neglected to work on the highways, &;c. on the 16th October, 1806, according to the warning for that purpose, given to him by Neilson ; upon which the magistrate,without notice or trial, issued a warrant against Benton, to levy and collect of him $1, the penalty given by the Act,
By reference to the Act of 1841, it will be discovered that no discretion is given to the Judge of the Superior, or Justice of the Inferior Court, or Justice of the peace. But upon application being made in terms of the law, the order issues as matter of course, for an execution. And the excuse for this will be found in the second remark which we have to submit in regard to notice.
Notice may be actually served, or constitutionally given, by allowing the party to pursue such means as the law regards as equivalent to personal service, beforehand, for the protection or defence of his rights. Notice beforehand, is not essentially necessary, where the Statute itself provides specific means of relief. 8 Vermont, 373. Now, under the Act of 1841, there must be a demand wArefusal to pay, upon the debt becoming due; and the execution, when issued and levied, must be advertised under the same rules and regulations as governed Sheriff’s sales in other cases; and then an opportunity is given to the defendant to con
Has tidal by jury, and the right thereto, as secured to this company, and all other citizens, by the constitution of the United States, and of the State of Georgia, been violated by these Statutes 1 This question is one of the deepest interest; and if the complaint against these acts be well founded, the plaintiff in error is unquestionably entitled to the protection of this Court.
I will not stop, at this late day, to inquire whether the Courts have the power, and if so,- if it be not their duty to declare Acts of the Legislature, repugnant to the Constitution, void1? These grave questions once elicited much discussion. And Gibson, J. (since promoted to the head of the Judiciary in Pennsylvania,) so late as 1825, in Eaker and others vs. Raub and others, 12 S. & R. 345, so far from admitting that it was the right and duty of the Judiciary to pronounce Acts of the Assembly void, which were a manifest breach of the Constitution, treated it as a professional dogma, received rather as a matter of faith than of reason.
Courts are organized and established to administer the laws of tho land. In their decisions, they are bound to observe and protect those paramount laws which they are sworn to support.
And on this point there is no dearth of precedents. 2 Dall. 240. 1 Tuck. Black, app. 5. 3 Dall. 171. 12 Wheat. 270. 6 Cranch, 128. 1 Cranch, 137, 173. Walker, 146. 2 Porter, 203. 2 Litt. 90. 9 Yerg. 490. 3 Desaus. 476. 1 Hayw. 28. 6 Rand. 245. 5 Binn. 355. 19 Johns. 58. 1 Harr. & John. 236. 10 Conn. 522. 3 Ver. 507. 3 N. H. 473. 6 Green. 112, 412. 15 Mass. 447.
The right, then, being established, we ask, does the Act of 1841, as amended and enlarged by the Act of 1845, contravene the Constitution of the United States, or the Constitution of the State of Georgia 1
The 7th amendment of the Constitution of the United States, is in these words : “In suits at Common Law, where the value in controversy shall exceed 20 dollars, the right of the trial by jury, shall be preserved ; and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the Common Law.”
The 5th section of the 4th article of the Constitution of Georgia declares, that “ Freedom of the press, and trial by jury, as heretofore used, shall remain inviolate.”
And we concur cordially in the glowing eulogium pronounced upon trial by jury, in a recent number of the Law Reporter. We
And while it is undoubtedly ti'ue, that the provisions, both of the National and State Constitutions, respecting this institution, apply to civil cases, still it cannot be denied, that they were mainly and primarily intended to protect inviolate, the trial by jury, in criminal prosecutions. And Courts will watch with more jealousy, any departure from, or trespass upon trial by jury in the latter class of cases, than the,former.
In criminal proceedings, trial by jury cannot be too highly ap-' predated or guarded with too much vigilance. So long as this palladium and Habeas Corpus, remain unimpaired, life and liberty are safe from passion, prejudice, or oppression, no matter from what quarter they emanate. "What security to innocence and what a humane arrangement of the law, that punishment can only be inflicted by the unanimous decision of twelve of our honest and impartial neighbors ! What-are slight inconveniences in the mode of selecting a jury, compared with this blessed protection ! Long may trial by jury, in criminal cases, the main pillar in the temple of justice, be continued to the country, and its results be characterized by wisdom and candor, patience and purity, firmness and independence.
We may,'however, after all, dovM the essentiality of trial by jury in civil cases. In Courts of Ordinary and Admiralty, and in Chancery, except in extraordinary cases, to inform the conscience of the Court, juries do not intervene. Mortgages are foreclosed, copies of lost papers established, lands pardoned, dower assigned and judgments rendered on hail bonds, forthcoming bonds, jail bound bonds, and honest debtor’s bonds, &c. and numerous
I deem it unnecessary to pursue this strain of remark further, and will only add, that to say the least of the experiment now making, it is a vast saving of time, trouble, and expense, to suitors and the country. Whether these considerations should outweigh the advantages resulting from a personal participation, by every citizen, in the practical administration of public justice, it does not become me to say.
In the case under review, it is not pretended that trial by jury is taken away expressly, or by implication. On the contrary, two jury trials are allowed, wherever there is any controversy as to the indebtedness. The Act of 1841 directs that the issue shall be made up and formed, and the truth thereof tried by a jury at the first term of the Court, to which the case is made returnable, and from the verdict thus rendered, either party has the power, or privilege co enter an appeal.
"We cannot think the trial'by jury, substantially defeated by these conditions, though the defendant may, and at times probably will, be subjected to some inconvenience, in complying* These terms may be onerous, but this is purely a question of expediency, and one which must, from its very nature, address itself exclusively to the law maker. And it is difficult to prescribe limits to the power of the Legislature, in this respect. Cases might arise which would authorize that body to go very farin disregarding the rules and regulations which are ordinarily observed in the enactment of a law for the assertion and defence of rights. There is no invasion or infringement of the Constitution, so long as trial by jury is not directly nor indirectly, abolished. 1 repeat, it is impossible to say at what point the Legislature ought to stop; and if undertaken to be said by the Courts, it must be at some point of great excess, that such a stand can be made.
Before a party is permitted to appeal in this State, he must, if able, pay all costs which have accrnred, and give bond and security for the eventual condemnation money. It might be well enough, so to amend the Act of 1841, as to extend the benefit of
That the defendant should be compelled to pay u^p what he admits to be due, before he can proceed, is no greater hardship than is imposed by the rules of practice on defendants in execution, who are required to pay up the amount admitted to be due»' ■or the sheriff is authorized to raise that amount, and accept the oath of illegality for the residue. In analogy to this regulation, the Act of 1841 might be farther amended, by allowing the execution to proceed to collect the sum admitted to be due, without exacting its actual payment.
It must be a very clear and palpable case, which would warrant the Judiciary to exercise this delicate duty of declaring a law unconstitutional, and one, too, which has been passed with so much deliberation. The Act of 1841 came under solemn revision in 1S45, and so far from being abrogated, or in any manner modi, lied, its privileges were extended. Here, then, we have the joint act of both the other co-ordinate departments of the government, twice ratified. ¥e should pause long under such circumstances, before giving our consent to pronounce such a law invalid, for the mere reason, that in our opinion the discretion of the Executive and Legislature had been incautiously exercised.
In conclusion, I beg leave to adduce a few leading cases in support of the views by which we have been guided.
In Kentucky, a Statute authorizing judgment to be entered, on motion, for breach of an agreement thereafter to be made to pay money for the building of a penitentiary, is not unconstitutional. It is not unconstitutional to render judgment in such case, without a jury, if the defendant do not appear. Ewing vs. Directors. &c. Hardin, 5. So the Statute authorizing a judgment against the sureties of a sheriff without a jury, is constitutional. Murray vs. Askew, 6 J. J. Marsh. 27. So the Statute which gives a summary redmedy against sheriffs, who fail to pay over money. Wells vs. Caldwell, 1 Marsh. 441. Statutes which authorize a Justice of the Peace to decide questions without a jury, but gives an appeal from his judgment, to a Court which tries by jury, are not unconstitutional. 1 Hawks, 482. 8 Yerg. 444. 4 Conn. 535. 4 Bibb, 416. Head vs. Hughs, 1 Marsh. 372. 1 Bibb, 342.
In Keddie vs. Moore, 2 Murphey’s Law and Eq. 41, the Act
Loche, Judge, delivered the opinion of the Court — “ when the convention declared that the ancient mode of trial by jury should be preserved, no restriction was thereby laid on the Legislature as to erecting or organizing judicial tribunals, in such manner as might be most conducive to the public convenience and interest. It is true that the Legislature cannot impose any provisions substantially restrictive of the trial by jury ; they may give existence to new forms; they may modify the powers and jurisdiction of former Courts, still, the sacred rights of any citizen, to trial by jury, must be preserved. Here the right is given of appealing to a Court, where the defendant will have the benefit of trial by ju ry. It cannot, therefore, be said, that the right is taken away. So long as it is preserved through an appeal, the preliminary mode of obtaining it, may be varied at the will and pleasure of the Legislature. The party wishing to appeal, may be subjected to some inconvenience in getting security. But this ineonvenience does not in this, nor any other case, lohere security is required, amount to a denial (fright.”
In Vangart vs. Waddel, 2 Yerg. 260, constitutional objection was taken to the Act of 1321, for giving new and additional remedies to the creditors of the Tennessee Fayetteville Bank, and the Farmers and Mechanics5 Bank, to enforce the payment of their debts. But the Court, in delivering its opinion, says, “To admit the principle, that such a law cannot he passed by the Legislar
In Biddle vs. The Commonwealth, 13 S. & R. 410, Chief Justice Tilghman says, “But it is said that the Constitution of the State was infringed by impairing the trial by jury. The action was brought before a magistrate, who decided without a jury. But then, the defendant had- the right to appeal to the Court of Common Pleas, where he might have a trial by jury. There is no weight in the objection, that the appeal is clogged with the condition of the appellant’s making oath, that he verily believed that injustice had been done him, and that the appeal was not made for the purpose of delay. Laws, such as these, promote justice and have the substance of tire trial by jury unimpaired, and that is all that is required by these expressions in the Constitution, “ that trial by jury shall be as heretofore.”
Thompson and Biddle, for plaintiff in error, in McDonald vs. Schell, 4 S. & R. 240, contended that to deny an appeal under the arbitration Act of Pennsylvania, passed 20th March, 1810, until the payment of costs, which frequently amounted to enormous sums, and to embarrass it with conditions, with which a poor man could not comply, were effectually to deprive him of a trial
I would remark that the law always properly manifests its tenderness for the impotent. Hence the saving in the Statute of Limitations, and numerous other statutes in favor of infants, feme coverts, &c. It is not unreasonable, therefore, that the Legislature should have provided a summary remedy for the benefit of those who navigate our water-courses-,, especially upon those rivers where it is notoriously true that the owners of steamboats and other water-craft usually reside aboard, and from that and other causes are not accessible by the ordinary process of law. Their agents, however, as this record discloses, are generally present, and can defend for them.
These ^doctrines, like most others coming before that tribunal, were thoroughly discussed and ably decided by the High Court of Errors and, Appeals in the State of Mississippi, in Lewis, et al. vs. Garrett’s Adm’rs, 5 Howard, 434. Upon the re-argument, Judge Trotter, delivering the opinion, said, “the Constitution in guaranteeing to the citizens of this State the right of trial by jury, did not intend to disturb the ancient and well established jurisdiction of the several[!Courts of the country; nor to change entirely the modes of trial, as they are regulated by the Common Law- For if that interpretation were given to it, no order of the Probate Court could be sustained, and the decrees of the Court of Chancery, would be mere waste paper. It was designed simply to guard the people against the arbitrary or capricious interference ofthe government, and was conceived and adopted in the spirit of the great charier of English liberty, which provides that no man shal\ be deprived of his life, liberty, or property, except by the judgment of his peers, or the law of the land. Under this charter the people of England have long flourished in the enjoyment of a boasted freedom from any responsibility but to the declared and established laws of the land. To the rule of conduct
And this reasoning is fully sustained by the Supreme Court of-the United States in the .case of the Bank of Columbia vs. Oakley, 4 Wheaton, 235. The 14th section of the Act of Assembly of Maryland, of 1793, c. 30, incorporating the Bank of Columbia, is in these words : “ And whereas it is absolutely necessary, that debts due to the said bank should be punctually paid, to enable the directors to calculate with certainty ahd precision on meeting the demands that may be made upon them : Be it enacted, That' whenever any person or persons are indebted to the said bank, for moneys borrowed by them, or for bonds, bills, or notes given or indorsed by them, with an express consent in writing, that they may be made negotiable at the said bank, and refuse or neglect to make payment at the time the same may become due, the president shall cause a demand in writing on the person of the said delinquent or delinquents, having consented as aforesaid; or if not to be found, have the same left at his last place of abode'; and if the money so due shall not be paid within ten days after such demand made, or notice left at his last place of abode as aforesaid, it shall and may be lawful for the president, at his election, to write to the clerk of the General Court, or of the county in which the said delinquent or delinquents may reside, or did at the time he or they contracted the debt, reside, and send to the said clerk the bond, bill, or note due, with proof of the demand made as aforesaid, and order the said Clerk to issue capias ad
An execution was issued under this Act by the clerk, not upon any judgment, but upon the simple deposite of a note, which was payable and negotiable at the Bank, and which not being paid at maturity, the money due upon it was demanded of the debtor, and not being paid within the ten days afterwards as required by the Charter, was sent to the Clerk with instructions to issue the execution. This proceeding, as will be seen, was in pursuance of the Act incorporating the Bank. The defendant moved in the Court below to quash the execution, upon the ground that it was contrary to the Constitution of the United States, article 7th, of amendments, (which I have already quoted,) and to the 21st article of the bill of rights of Maryland, which declares, “ That no freeman ought to be taken, or imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or
Mr. Martin, in support of this proceeding, was stopped by Mr. Justice Johnson, who thus delivered the opinion of the Court : “ Was the act authorizing the issuing of an execution against the body or effects of the debtor, without the judgment of a Court, upon the oath and demand of the President of the Bank, a violation of the rights intended to be secured to the individual under the Constitution of the United States, and of the State of Maryland ? To constitute particular tribunals for the adjustment of controversies, to submit ourselves to the exercise of summary remedies, or to temporary privation of rights of the deepest interest, are among the common incidents of life. Such are submissions to arbitration, and such are stipulation bonds, forthcoming bonds, and contracts of service. By making the note negotiable at the Bank of Columbia, the debtor chose his own jurisdiction. In consideration of the credit given him, he voluntarily relinquished his claims to the ordinary administration of justice, and placed himself only in the situation of an hypothecator of goods, with power to sell on default, or a stipulator in the admiralty, whose voluntai y submission to the jurisdiction of that Court, subjects him to personal coercion. It is true cases may be supposed, in which the policy of a country may set bounds to the relinquishment of private” rights, and this Court would ponder long before it would sustain this action, if we could be persuaded that the act in question, produced a total prostration of the trial by jury, or even involved the defendant in circumstances which rendered that right unavailing for his protection. But a power is reserved to the Judges to make such rules and orders, “ as that justice may be done,” and as the possession of judicial power imposes the obligation to exercise it, we flatter ourselves that in practice, the evils so eloquently dilated on by counsel, do not exist. And that if the defendant does not avail himself of the rights given him of having an issue made up, and the trial by jury which is tendered to him-by the Act, it is presumable that he cannot dispute the justice of the claim.
It will be noticed that the consent of the party was not that summary process of execution before judgment should be issued against him, which is eerfainly rather an inversion of the natural order of judicial proceedings ; it was simply that his paper should be negotiated at this particular Bank. So here it may be said, that every agreement made respecting service in the navigation of the particular streams named in the acts, is a voluntary submission by the owners of the steamboats or other water craft to the law of the contract, and acquiescence in the remedy which it gives. And I must be excused for saying, that but for “ the evils so eloquently dilated on ” by the able advocates of the plaintiffs in error, and which we are fully persuaded do not in fact exist, this case would have appeared to the mind of this Court, wholly free from doubt.
This Maryland Act came under the review of the general Court and Court of Appeals of that State, in the Bank of Columbia vs. D. Ross, 4 Harr. & McHen. 455; when Chase, Chief, Justice, made the following observations upon a similar motion to quash an execution. “ It is a well established rule in expounding Acts of the Legislature, that the intention of the makers must prevail; which intention is to be collected from the words they have used. It appears by the preamble, that in the opinion of the General Assembly, the agricultural and commercial interests of the State would be promoted, by establishing a bank in the District of Columbia ; and they have declared, that to support the said bank, it was absolutely necessary that debts due to the bank, should be punctually paid ; to effect which, they have authorized a summary, facile and expeditious mode of recovery, without infringing on the right to a trial by jury, where the
Judgment affirmed.