38 Md. 529 | Md. | 1873
Lead Opinion
delivered the opinion of the Court.
The only question arising in this case is, whether the Act of 1872, chap. 270, is retrospective in its operation.
It is a clear and well settled rule of law that no statute will be held to be retroactive unless such an intention is clearly expressed in the statute. Baugher vs. Nelson, 9 Gill, 303 ; Slate, use of the Mayor & C. C. of Baltimore vs. Norwood, 12 Md., 206; Clark vs., the Mayor and City Council of Baltimore, 29 Md., 283, and Davis, Adm’r, vs. Clahaugh, 30 Md., 508. In the last oí these cases, this Court laid down the rule in the following clear and forcible language: “A statute ought not to have a retroactive operation unless its words are so clear, strong and imperative, that no other meaning can he annexed to them, or unless the intention of the Legislature could not be otherwise satisfied; and especially ought this rule to be adhered to, when such a construction would alter the pre-existing situation of parties, or would affect or interfere with their antecedent right.” Has the Legislature
Before the passage of the Act of 1845, contracts of married women were void at law, but that Act made such * contracts, entered into jointly with thePhusband, valid, made married women liable to suits at law in such contracts, and subjected their property to execution and attachment.
It has been contended that the Legislature, by using the past tense, “may have executed,” clearly manifested its intention to include within the operation of the statute contracts entered into before the Act was passed, and that there is no room for construction. We do not concur in this view of the law. It does not say that a married woman maybe sued on any contract entered into jointly with her husband before the Act was passed, or which she “may have heretofore executed.” It is to be presumed that the Legislators who passed the Act in question, did so with full knowledge of the decisions of this Court, to which we have already referred, and that, if they had intended to include within the operation of the statute contracts made before its passage, they would have used apt words
There is nothing in the language of the Act inconsistent with this construction. The words “ may have executed,” as the context shows, were used with reference to the time of instituting the suit, and therefore the past tense is correctly employed. They do not speak as of the time of passing the Act, and do not necessarily embrace contracts which had been executed before the Act was passed. Giving it this construction, the statute will operate upon a class of cases, clearly within its scope and operation, without “altering the pre-existing situation of parties, or affecting, or interfering with, their antecedent rights.” The Act now under consideration is different in its language, and very different in its character and object from the Act of 1845, chap. 352, which was under review in Baugher vs. Nelson, and which was held to he retrospective in its operation. By the Act of 1704, chap. 69, usury, when pleaded and established by proof, was a bar to the action. The Act of 1845, provided that “in any suit or action hereafter to be brought in any Court of Law or Equity in this State, upon any bond, &c,, or upon any contract, &c., whether the same relate to the loan of any money, &c., in which any person shall seek to avail himself of the provisions of the Act of Assembly of 1704, it shall bo incumbent on such person to specially plead the same, and in such plea to set out the sums, both principal and interest, actually and fairly due on such bonds, &c., estimating the principal debt actually loaned or contracted for, with interest thereupon at the rate of six per cent, per annum.” The language of that Act is very clear and comprehensive, and leaves no doubt as to its meaning and intention. It says, “ that in any suit hereafter to be brought,” that is in any suit brought after the
The Act provides that, “in all cases where a divorce ‘avinculo matrimonii’ is decreed for adultery or abandonment, the Court may, in its discretion, decree that the guilty party shall not contract marriage with any other person during the lifetime of the other party,” &c. The Act looks to "the time of the decree, and says that in all cases where a decree is passed, &c., the Court may in its discretion decree, .&c. It was therefore held .by this Court that the discretion was well exercised, although the acts for which the divorce was granted, had been committed and suit had actually been commenced before the passage of the Act.
The Act of 1872, chap. 270, has been under the consideration of this Court in the case of Catherine Miller, by her next friend George Davis vs. Wilson and Suter, at the present term. (Unreported case.)
In that case a foreign' attachment issued in December, 1871, on a joint note of husband and wife, and was laid upon the real estate of the wife, and judgment of condemnation was rendered in June, 1872, and execution issued. The wife, by her next friend, filed a bill in the Circuit Court for Cecil County, for an injunction to stay the execution. The injunction was refused, and the case came to this Court upon appeal of the wife, and was submitted to the whole Bench, and all the Judges were of opinion
The judgment appealed from will therefore be affirmed.
Judgment affirmed.
Dissenting Opinion
delivered the following dissenting opinion, in which Stewart, J., concurred:
This suit was brought on the 27th of April, 1872, by the appellants against the appellee and her husband on their joint and several promissory note for $383.61, dated the 28th of March, 1869, payable to the order of the plaintiffs, at ninety days from date, at the Bank of Commerce. The husband was returned non est, but the wife being summoned appeared and pleaded her coverture in bar of the action. Upon demurrer to this plea the Court below gave judgment in favor of the defendant, and from that judgment this appeal has been taken by the plaintiffs.
The case has been argued by counsel for the appellants alone. No argument has been made on the part of the appellee. It involves the very important question, whether the Act of 1872, ch. 270, which took effect on the 1st of April, 1872, the date of its passage, authorizes a suit at law against a husband and wife, upon their joint note executed before that Act was passed. In considering
The second addition made by this substitute, and upon which the present question arises, is in these words: “ any married woman may be sued jointly with her husband in any of the Courts of this State, or before any justice of the peace, on any note, bill of exchange, single bill, bond, contract or agreement, which she may have executed jointly with her husband, and may employ counsel and defend such action or suit separately or jointly with her husband, and judgments recovered in such cases shall be liens on the property of defendants, and may be collected by execution or attachment in the same manner as if the defendants were not husband and wife ; provided, that in all cases where a married woman has made such contract or agreement as a feme sole under the seventh section of this Article, she may be proceeded against as therein provided.”
It was decided by this Court at its last term, in the case of Hall and Hume vs. Heeleston and Wife, 37 Md., 510, that one of the main purposes of the original section was to enable married women to maintain a separate credit independent of their husbands. Having thus settled their property upon them for this purpose, the Legislature thought it right and just they should be responsible for their contracts of a certain description, like other persons, and be sued upon them in a Court of law, and their separate estates subjected to the payment of debts so contracted. That was the object the Legislature had in view .by the second addition to the original section made by the Act of 1872. There is nothing in it unwise, or harsh, or inequitable. It merely declares that married women shall not unite with their husbands and put their names and signatures to these contracts and thereby induce honest and bona fide creditors to part with their money, or merchandise, and then when pay-day comes, hold on to their
Such being the purpose of this provision, the question is, has it a retroactive operation ? Does it apply to and affect contracts that antedate its passage? Of the power of the Legislature to make it retroactive, I entertain- no doubt. Have they so made it ? The rule is universal, that laws are to be so construed if possible, as to give them a prospective operation only. But in whatever strong terms this rule may be stated, it has always in every well considered case, been qualified by the controlling and paramount principle, that if the language of a statute is too express and plain to be mistaken, and that language gives to it a retroactive operation, then the Courts cannot indulge in construction. It is in my judgment a principle too plain for controversy, that Courts have no power to make retrospective language prospective only by a mere arbitrary declaration that thus it shall be, for that would be judicial legislation and overturn the maxim estjudicis dicere non dare leges. The words of the law axe first to be looked to for the purpose of ascertaining the legislative intent in this as in all other cases. Thus in the case of Clark vs. The Mayor and City Council of Baltimore, 29 Md., 283, where the rule of prospective construction is most strongly stated, this Court has said that laws must be construed according to the legislative intent, and “to ascertain this, we are first to
What then is the language of the law now to be dealt with? It is plainly this: “any married woman may he sued at law with her husband, on any note, &c., which she may have executed jointly with him.” I cannot conceive how it is possible to raise an ambiguity, on these words, or to affirm they are wanting in clearness or precision. How can they be made to declare that married women may be sued only on such notes as they 'may execute after the law takes effect, except by a mere arbitrary declaration that they shall mean this an’d nothing more. Punctuation may be disregarded or so made to accommodate the sense, but I cannot, recognize the right of Judges so to deal with the grammar of a plain English sentence, as to change the past tenses of its verbs into future tenses. I have found no case in which any Court has ever attempted this, and yet in my judgment, it must be done here before the language of this Act can be deprived of its plain retroactive effect. No one can deny that the law became operative and spoke the legislative will just as effectually and imperatively the very instant after it was approved and signed by the Governor, as it does to-day. Its language is the same now as it was then. Now, reading it as speaking at that instant of time, as Zaza then it undoubtedly was, and what did it proclaim? Did it not then instantly tell creditors of married women that they could at once go into the Courts of law and sue any -mar
It is said the words “may have executed” do not speak as of the time of passing the Act. But in my judgment the plain answer to this is, that the Legislature has said the Act shall take effect from the date of its passage. In face of this clear mandate, how can the Court say it shall not take effect then, but at some future time, and as contracts may be made to give it operation? I cannot yield my assent to any such proposition. In my judgment it amounts to a substitution of the judicial for the legislative will.