Hulburt v. Merriam

By tbe Court,

Whipple, J.

The Revision of 1838 provides that when a cause of action shall have accrued “ before the 31st day of August, 1838, it shall not be affected by this chapter ; but all such causes of action shall be determined agreeably to the law under which the right of action accrued.”

This provision received from this Court an interpretation in the case of Cramer vs. Lastley, 2 Doug. 307; and the view taken by us in that case, was confirmed by an act of the Legislature, in 1843. Under these acts and the construction given to them by this Court, the questions submitted for our advice are answered, when we determined-what law in relation to the limitation of actions was in force in 1834, when the cause of action accrued to the plaintiffs.

• The 10th section of the “ act for the limitation of suits,” &c., adopted May 15,1820, as printed, provides that “ this act shall not extend to bar any infant, feme covert, persons imprisoned, or beyond seas, or without the United States, or non compos mentis, from bringing either of the actions before mentioned, within the term before set and limited for bringing such actions, calculating from the time such impediment shall be removed.”

This section of the act of 1820, is found in the Revisions of 1827 and 1833.

By section two of the schedule to the Constitution of 1835, it is provided that “ all laws now in force in the Territory of Michigan, which are not repugnant to this Constitution, shall remain in force until they expire by their own limitations, or be altered or repealed by the Legislature.” The laws of the Territory, by this provision, became the laws of the State, when the Constitution took effect.

Under this provision of the Constitution, and the laws above referred to, the solution of the questions propounded to us by the Circuit Court would not be difficult. But it is said that some of the exceptions to be found in the 10th section of the act of 1820, as printed, never had the force of law; and in support of this view we have been referred to a certified copy of the original act, and of a record of the same, now deposited in the office of the Secretary, of State. By the act, to which the signatures, respectively, of the Governor and Judges by whom it was adopted, are affixed, it appears that the exceptions specified in the original draft of section 10, were as follows: “And be it further enacted., that this act shall not extend to bar any infant, feme covert, persons imprisoned, or beyond seas,. without the United States, or non compos mentis,” &c. The words “ beyond seas ” are erased in the act now on file; so that the difference between the act as it now appears in the archives of the State Department, and the act as printed in 1820, consists in this — that in the latter the words “beyond seasf erased in the original act, are found in the printed code; and the word <w, where it occurs in immediate connection with the words “ without the United States,” in the act as printed, was never inserted in the original.

The ordinance of 1787 made it the duty of the Governor and Judges to report to Congress the laws by them adopted. This law of 1820 was so reported, and from an examination of a certified copy procured from the State Department at Washington, it appears that as reported to Congress, the exceptions in section 10 are — “ persons imprisoned or without the United States,” «fee. No doubt, then, can exist, but that as originally adopted, section 10 contained no exceptions in favor of persons beyond seas, but not without the United States. The interpolation of the word “or,” it is very clear, creates the material discrepancy between the original and printed act; for, reading the 10th section, with the word or stricken out, the fourth exception would include persons “beyond seas, without the United States.” It i» conceded that the term “persons beyond seas,” according to its legal interpretation, includes persons out of the State, as well as those out of the United States.

If the printed act, as it is found in the Bevisions of 1820,, 1827, and 1833, is to prevail, the plaintiffs have brought themselves within one of the exceptions specified in section 10, and would be entitled to judgment on the demurrer: if on the contrary, the original act deposited in the State Department is to govern, then it is equally manifest that the-defendants have spread upon the record a perfect defence.

The act of the 15th of May, 1820, took effect under the first-grade of the Territorial government. The Governor and Judges were, by the ordinance of 1787, invested with the authority to adopt laws of the original States, but were not clothed with legislative powers.

The act of 1820 appears on its face to have been borrowed’ from Vermont, and it has been said that the exceptions contained in the Vermont law, differ from those embraced in section 10 of the act of 1820. If this be true, then the act of' the Governor and Judges, in this respect, was unauthorized and invalid. It is believed, however, that the erasure of the-words, “beyond seas” in the Vermont law would not affect its-, legal interpretation. The words of that law are, “ or beyond seas, without the United States.” It is too clear for argument that the words “beyond seas” are superfluous, and the Governor and Judges, while they were restricted as to the source-from which to adopt laws, were not only at liberty to reject-superfluous words, but to make such changes in the language as their taste might suggest. The authority to adopt a lew, does not necessarily imply that the precise words of that law are to be adopted. As this authority to adopt laws was vested in the highest executive and judicial fimetionaries of the territory, who were doubtless familiar with the import of technical terms, it is not unlikely that the words “beyond, 'seas” were intentionally erased, as they were manifestly superfluous. That this view may very well have been taken, I Prefer to the case of "Whitney et al. vs. Goddard, admr., 20 Pick. 301. The exceptions to section 4 of the Massachusetts statute, is expressed in these words: “This act shall not be understood to bar any infant, feme covert, persons imprisoned, or beyond sea, without any of the United States,” &c. It will be perceived that the saving provision in the statute is identical with that of the Vermont statute. Chief Justice Shaw in delivering the opinion of the Court says: “But in our statute, the words “beyond sea” do not stand alone; they are immediately followed by the words “without any of the United -States.” We are of the opinion, that in the use of these words ihe Legislature did not intend to point out two distinct disabilities, that of being beyond sea as one,' and that of being without any of the United States as another; using the former in a technical sense, as equivalent to “ out of the Commonwealth,” because it would render the words “without the United States,” not only superfluous but repugnant.” The learned Judge then proceeds to show why the words “beyond sea,” were used in the Massachusetts statute, although wholly superflous, and concludes his reasoning, on this point, with the remark that “ the latter words (without any of the United States’) are put by the way of explanation and qualification of the preceding; equivalent to saying, that by these words, “ beyond sea,” we mean without the United States.” If this be a sound exposition of the Massachusetts statute, it will be admitted that the erasure of the words “beyond sea,” in the act of 1820, in no respect altered the Vermont law, but •simply expunged superfluous words, rendering the law unambiguous, and thus fitting it for practical application. The erasure, then, of these words, furnishes no ground for the belief that the alteration of the original act was fraudulent, and their introduction into,the Revision of 1820, was, therefore, unauthorized. It was the act of the printer, and not of the Governor and Judges. It is unnecessary to dwell upon the other discrepancy between the original and printed act. There is no pretence that the word “ or” immediately before the words “without the United States,” was in the Yermont law, or in the law adopted by the Governor and Judges. This also was the act of the printer of the laws. It requires no ingenuity to account for this interpolation. It was supposed that the act pointed out two distinct disabilities, and that the insertion of the word or, would more clearly express that object. The Governor and Judges used the words “ beyond sea” in a technical sense, as equivalent to “ without the United States.” The printer of the laws seems to have considered that the words “ beyond sea,” expressed something different from the words “ without the United States,” and to Tender the distinction more clear, interposed the word or, thus erecting a disability not contemplated by the law-making power. It is well settled by the practice of our Courts, that where a discrepancy exists between an original law and the printed copy, the former must govern; and hence, unless the law of 1820 was amended or repealed by competent authority prior to 1834, the defence relied on is perfect. But it is said •that the limitation law of 1820 was republished by authority, in the revisions of 1827 and 1833, and having been thus recognized hy legislative enactment, and never questioned by •our Courts; that it is not to be disturbed, or its validity questioned at this late day. These revisions do embody the act ■as it is found in the printed code of 1820, and if it can be reasonably- inferred that either of the revisions of 1827 or 1833 contain a re-enactment of the printed statute of 1820, •all difficulty will be removed. But if it shall ap>pear that the limitation act as published in these revisions, was merely a reprint of the law as erroneously published in the revision of 1820, it is then equally clear that no argument can be derived from the perpetuation of the error. It continues to be, what it was when first published, the error of the printer, and not the authoritative and binding act of the legislative authority. The authority of the Governor and Judges to adopt laws, was succeeded by that of a Legislative Council, who were authorized to originate, and with the approval of the Govern- or, to pass laws. What, then, does the volume published in 1827 purport to embody? The title page indicates that it contains—

1. Acts revised by the Commissioners, and passed by the Second Council.

2. The Acts and Resolutions of the Eirst and Second Councils.

3. The Acts now m force, adopted by the Governor md Judges of the Territory.

4. The Acts of Congress, &c.

In this volume (p. 253) we find a re-print of the limitation act of 1820. It does not appear to have been revised by the Commissioners, but was published as an act then in force, adopted by the Governor and Judges. The formula Be it enacted by the Governor and Judges,” &c., is preserved, and the words Adopted May 15, 1820,” clearly indicate that it was a mere re-publication of one of the acts then in force. Had this law been re-enacted, the formula prescribed by the Council — “ Be it enacted by the Legislative Council,” &c., would have been folhrwed; and in lieu of the word “adopted,” the word “ approved” would have been substituted. If the statute in question derived its authority from the* Legislative Council of 1827, it is not lilrely that upon its face, it would appear to have been “ adopted” by the Gíovernor and Judges in 1820. But the question is conclusively settled by a resolution of the Council, passed on the day of its adjournment, and an act passed the day next-preceding the adjournment. The resolution is in these-words: “Resolved, That the President superintend the. arrangement and printing of the acts and resolves passed during the session of this Council, and the other acts authorised by law to be printed,” &c. Tbe act referred to contains this provision: “ All acts in force on the first day of November last are hereby repealed, except private acts, &c., and excepting all such acts as have been preserved and retained by the first and second sessions of the Second Council, which acts are hereafter recited by their titles, to wit:

“An Act to organize the Militia, approved April 2, 1825..

“ An Act for the limitation of writs on penal statutes, criminal prosecutions, and actions at law, adopted May 15,. 1820.” Here there is an act expressly excepted from the operation of the general repealing clause, and with other acts “ preserved and retained.” Of the laws contained in. the volume published in 1827, about forty are published as having been “ adopted” at various periods prior to the organization 6f_the Legislative Council, and having the formula— “ Be it enacted by the Governor and Judges,” &c. Of these forty laws, no mention is made in the Journal of the Council. The Commission to revise the laws in the volume of' 1827, was authorized by an act approved April 12, 1825. The duty of the Commissioners was prescribed with clearness and precision; they were “ to examine all the 'public acts of the Territory now in force, and to revise, consolidate,, and digest the same, upon the following principles:

1. All the acts upon the same subject, shall be digested into one act.

2. The principles of the existing laws may be preserved,, or such alterations or additions may be made as the said Commission may deem expedient.

3. Acts not considered necessary by the Commission may be omitted, and deficiencies may be supplied by new acts.

4. The formula “ Be it enacted by the Legislative Council of the Territory of Michigan,” shall be used in the first section only of each act.”

And it was further resolved, “ That the said Commission shall report the several acts by them revised and prepared, to the Legislative Council, at their next session, for their consideration.” These provisions show the object for which the Commission was created, and define the manner in which the trust confided to them was to be executed. No legislative authority was or could have been delegated to that body. Their report was to be made to the Council for consideration. Their final report was made on the 27th Dec., 1826, and on the 29th Dec. the Commissioners were discharged, and their report “ accepted.” • This .acceptance of the report had the effect, simply, of bringing it before the Legislature for consideration. The Journal of the Council, however, shows that the Commissioner reported bills for the action of the Council from time to time. These bills were referred to" appropriate committees, and being reported back, passed through the ordinary forms of legislation, and were either passed or rejected by the Council; and if passed, were presented to, and bear evidence of having received the approval of the Governor. Of the laws of 1827, seventy-five ar,e published as having been approved April 12,1827,” and about twenty as “ approved April 13, 1827,” and the journals show the action of the Council upon each of these acts.

The Journal further shows that the Commissioners did report for the consideration of the Council, a bill entitled “a bill for the limitation of actions,” and that on the same day it was referred to the judiciary committee. It does not appear that.it was ever reported back by the committee, or that it received further action by the Council. Page 28 of the Journal of the Council shows that a petition was presented to that body, praying that the statute of limitations, adopted by the Governor and Judges, May 15th, 1820, be repealed. This petition was also referred to the judiciary committee, who made a report deberse to the prayer of the petitioners, and on the last day of the session, leave was given to withdraw the petition, and at the same time the act was approved retaining and preserving, in express terms, the limitation act of 1820. The Journal shows also that for several weeks after the acceptance of the final report of the Commissioner, the Council was diligently employed in considering the bills reported to them. But it is useless to prosecute our inquiries any farther on this subject. The public records exhibit conclusive evidence that the limitation act of 1820'was “retained and preserved ” by the Council, and not re-enacted. A critical examination of the code of 1833, shows beyond controversy, that the limitation act on page 569 is also a re-print of the law adopted May 15,1820. This last code contains, as its title imports: 1, Laws in force condensed by the Council; 2, Laws in force in the desired order of publication; 3, Original laws passed by the Council. Without following the action of the Council in relation to the code of 1833,1 simply refer to the 'Journal, page 200, by which it appears that a resolution was adopted authorizing the President to appoint a committee to “condense and collect” the laws, and “report to the next Council, with a view of facilitating the publication thereof in a new edition. The committee contemplated by this resolution was appointed, and this concludes the action of the first session of the fifth Council. At the second session of the fifth Coimcil, the committee “ to collect and arrange ” the laws, reported bills from time to time, which were referred .to appropriate committees, and were either rejected or passed with the approval of the Governor. No mention is anywhere made in the Journal of this session of the law in question, wLich proves very conclusively that no modification of the act then in force was made. At a late day a resolution was adopted “ that all public acts, and no other, shall be printed and included ■ in the volume of laws; it shall be the duty-of the Secretary of the Council to direct the order in which said laws shall he primted in the whrnie: And further, it shall be the duty of the Secretary of the Territory to furnish the printer with copies of all laws now m force” Such is a condensed history of the legislation in respect to the code of 1833, and by referring to page 569, it will appear that the statute of limitations of May 15,1820, adopted by the Governor and Judges, was preserved with the errors that crept into the revisions of 1820 and 1827. The code of 1833 also contains a list of the acts repealed, or for which condensed acts were substituted by the Council, from which it may be inferred that the original act remained unchanged, inasmuch as it is not contained in this list. No further legislation on this subject was had until the revision, by the State Legislature of 1838, when the act “ adopted May 15, 1820,” was expressly repealed. It is not presumed that the Legislature would repeal an act not in force, nor be guilty of the folly of repealing an act adopted by the Governor and Judges in 1820, if that act had not have been considered in force at the date of the repealing act. The Legislature considered the act of 1820, adopted by the Governor and Judges, as in full force, and this understanding by the Legislature was in entire harmony with the opinion entertained by the Bench and the Bar. I never before heard it suggested that the limitation act of 1820 underwent a revision, or was ever re-enacted by the Legislative Council.

In the discussions in our Courts, it was always referred to as an act adopted by the Governor and Judges in 1820, and remaining in full force and vigor until its repeal in 1838. It is quite true, that the act as printed in the codes of 1820,1827, and 1833, was referred to indifferently, and the law was administered as it is there found. No suspicion was entertained that errors so serious had' crept into the printed act, until comparatively recent period. No sanction is given, then, from the circumstance, that the laws were printed and distributed by authority. The various resolutions on this subject refer to “ la/ws to be printed,” and can give no force or validity to the act, as it is re-prinfed in 1827 and 1833. To give to these republications the authority and binding force of laws, it must appear that they were prescribed by the legislative power of the Territory. It is unnecessary, in respect to the revision of 1827, to resort to the doctrine of presumption.

We have shown what laws that volume contains, and by what authority they were enacted. Their validity has never been drawn in question; the volume embodies laws regularly acted upon and passed by the Legislative Council, upon the report of the Commissioners, and laws adopted by the Governor and Judges, and in force at the time the revision was made. In regard to the former class, or the laws passed by the Council, they did not derive their efficacy from the acceptance of the report of the Commissioners, but from the joint action of the legislative and executive departments of the Territory. That action was regular, and in accordance with those rules by which legislative bodies are usually governed.

We regret that there should be a conflict of opinion between this Court and the Circuit Court of_the United States for this district, in respect to the questions submitted for our opinion by the Circuit Court of Wayne County. These questions have been considered with great care, and we entertain no doubt as to the correctness of the opinions we have expressed. Administering, as we are, a State law, we must necessarily be controlled by the views we have formed, however much we may desire to conform to the opinion of the learned Judge who pronounced the judgment in the Circuit Court of the United States, in the case of Peck, survivor &c., vs. Pease. We have had occasion to say, what is now re-affirmed,- that the decisions of the Supreme Court of the United States, upon all questions arising under the Constitution and laws of the United States, will be regarded as authoritative. The rule established by the Federal and State Courts in this respect, applies a remedy to the mischiefs that would grow out of a conflict of views between those tribunals.

Let it be certified to tbe said Circuit Court for tbe County of Wayne, as the opinion of this Court:

1. That the statute of limitations adopted by the Governor and Judges, May 15,1820, continued in force as adopted until repealed in 1838, and that its provisions do run against the claims of persons who were, at the time the cause of action accrued, out of this State but notwithout the United States, and who have not, from the time of the accruing of said cause of action, come within this State.

2. That the original law on file must govern in preference to the printed copies thereof, and that persons out of this State, but not without the United States, do not come within the provisions of section 10 of said act, as adopted and in force in the year 1834.

3. That upon the pleadings reported to this Court, the demurrer of defendants to the replication of the plaintiffs, should be sustained.

Case Details

Case Name: Hulburt v. Merriam

Court Name: Michigan Supreme Court

Date Published: Jan 15, 1854

Citation: 3 Mich. 144

Court Abbreviation: Mich.