20 Vt. 653 | United States District Court | 1844
In the matter of David Howes, 6 Law Reporter 297, it was determined by this court, that a petition for the benefit of the bankrupt law, presented and filed on the 3d of March, the day the law was repealed, was too late, and that no order could be
The question presented in this case first came before me at the last May term of this court, in the matter of Ward and Thrall v. Slason, a case of compulsory bankruptcy. I then considered the question, and came to the conclusion, that the petition could not be sustained ; but as the case involved property to a large amount, and the question raised was one of some novelty and.much importance, I thought it would be advisable, especially as there were several other cases depending upon the decision, to adjourn the question into the circuit court for final determination. I accordingly did so; but no hearing being had upon the question in the circuit court, the ¡counsel for the petitioning creditors at the October Term declining to proceed farther upon if, and the case of David Howes coming up soon after, I delivered the opinion I have already mentioned. As to the correctness and soundness of that opinion, considering the question as a question of law depending upon rules and principles of law, I certainly entertained no doubt before the publication of the decision in the matter of Joseph Richardson, 6 Law Rep. 392. I have carefully read that case, and well weighed the authorities, principles and reasoning urged in it. The decision, considering the high source from which it proceeds, is entitled to high respect and deference; but, like all other decisions under the bankrupt law in other circuits, it is of no binding authority here. Notwithstand
It appears to me, that the rule, that there are in law no divisions or fractions of a day, if applicable to any question whatever, is emphatically applicable to this. The rule, in my apprehension, is not to be treated as a mere unmeaning legal fiction, existing in speculation and theory only, and of no practical use or value. That there is no apportionment of a single day, or any account made of hours and minutes, besides being true by general habit and custom in the ' transaction of much of the business of life, is a rule or axiom of law, founded in convenience and utility, and is of real practical efficacy, as far as it prevails, in avoiding the uncertainty and difficulties attending questions concerning minute and unimportant divisions of time. Still, the rule, though a general rule of law, does not apply in all cases, but, like most other general rules, is subject, in its application, to just and reasonable exceptions. It does not prevail in questions concerning merely the acts of parties, where it becomes necessary to distinguish and ascertain which of several persons has a priority of right; as where a bond and release are executed on the same day; where a bond is executed by a woman the same day she-marries; where thé disseisin is done the same day the writ is tested where goods are seized under an execution on the same day the defendant commits an act of bankruptcy; where two writs of execution are delivered to the sheriff on the sarhe day ; or where the question is as to the time of suing out a writ, or delivering a declaration ; in short, in most, if not all, questions respecting private* transactions, where priorities in a single day may exist, and it is. practicable, as well as essentia] to the purposes of justice, to inquire into them.
But though divisions of a day are allowed to make priorities in questions concerning private acts and transactions, they are never allowed to make priorities in questions concerning public acts, such as legislative acts, or public laws, or such judicial proceedings as are matters of record. When it was the law in England, that every act of Parliament took effect the first day of the session, unless the act appointed another time for its commencement, it was held, that, in case of two acts made at the same session, one could not have
Lord Mansfield, in Combe v. Pitt, 3 Burr. 1423, recognizes and admits the general rule. After observing that the law does not, in general, allow of the fraction of a day, he says, it admits it in cases, where it is necessary to distinguish, and he does not see why the very hour may not be shown, where it is necessary and can be done. To this I agree. But is it necessary, and can it be done in this case 1 That is the question. If it cannot be done, or is not proper to be done, then the case falls within the general rule, and the general rule must govern it. It seems plain to me, that the time when an act, which is approved and signed by the President, takes effect, must appear, and can properly appear, only from the act itself. By a standing general enactment, the act, when approved and signed, is to be forthwith lodged in the department of state and published ; and the act so lodged in the department of state, or a certified transcript or authorized printed copy of it, is of course the only proper evidence, not only of its existence as a law, but of the time of its commencement; though it may be necessary and admissible in some instances, particularly when an act becomes a law by not being either signed, or returned with objections, or by being returned and repassed by congress, to carry back the inquiry to the legislative journals. But it would be as unsafe, as it would be unfit, to allow the commencement of a public law, whenever the question may arise, whether at a near or distant time, to depend upon the uncertainty of parol proof, or upon any thing extrinsic to the law and the authenticated recorded proceedings in passing it. In the
As already suggested, now, in England as well as here, the operation of every act commences from the time of its approval by the executive, unless it is otherwise provided in the act. By the statute 33 Geo. 3, c. 13, it is enacted, that upon every act of parliament, the day, month and year of its receiving the royal assent shall be indorsed, and such indorsement shall be taken to be a part of the act, and to be the date of its commencement, when no other commencement is therein provided. The matter here, under the provisions of the constitution, or the practice of the government, as to the time when a law takes effect on being approved and signed by the president, is, in my judgment, placed upon no different footing. Neither in such case, any more than in the case where a law takes effect on being returned by the president with objections and re-passed by congress, or on not being signed or returned within ten days after being presented to him, are any divisions of a day either implied or contemplated. The president has a right to retain a bill ten days for consideration, and if he approves it on any day within that time, he indorses the day of its approval upon the bill. The hour of the day, according to uniform and uninterrupted usage, never appears, — for the reason, undoubtedly, that it is considered the same in legal effect, and consequently immaterial, whether the approval is upon one moment of the day, or another. All we know, or can judicially know, is what appears from the date of the approval, which is a part and an essential part of the act; and any thing beyond that we have no legal means of knowing. It is legally impossible, therefore, to distinguish between different parts of the day,
So far as it concerns the commencement or termination of public laws, a day is an indivisible portion of time ; and, I repeat, it would be unfit, inconvenient, and serve no valuable purpose, in my opinion, to have it otherwise. Of what practical importance can it be, whether a law takes effect on one or another part of a particular day ? If it be meant, that no law should go into operation, before the people have had the means of knowing its provisions, the proposition is a plain one, and easily understood; but it is not so easy to see or understand how it can be very material, so far as it respects the people’s knowing or having the means of knowing the law, whether it takes effect the first or last part -of the day, on which it is approved. Whether a law ought to be made to take effect immediately on its passage is a matter very proper for the consideration of the legislature. All laws, before they become such, pass through several stages, and are usually very slow in their progress. • While they remain in transitu in congress, which is commonly a considerable time, the various proceedings «upon them- are spread abroad over the country through the medium of the public journals; and as it is known and understood that laws, after passing through the different legislative stages, take effect, in general, and unless it is otherwise specially provided, the day they are approved and signed by the president, there is very little reason for saying there is any surprise upon the public.
It would seem, however, to be more proper, as being more agreeable to the spirit of our institutions, that criminal laws, especially such as create new offences, or augment the punishment of old ones, should be made to take effect on a fixed future day, in order that they may be published and promulgated before they go into operation ; but if made to take effect immediately on their passage, as it is generally supposed they may be constitutionally, it would be of very little consequence, as to any purpose of notice or publicity, at what part or hour of the day their operation commences. The sup
As I have already said, the question arising in this case was first presented to me in a case of compulsory bankruptcy, which, whatever it may be in form, partakes in some measure of the nature of a criminal proceeding. I was called upon to say, whether you could coerce a man into bankruptcy against his will, divest him of all his property and rights of property, put a stop to his occupation, and break up his business, under a proceeding instituted and commenced on the day the bankrupt law was repealed. The question comprehended not only this, but also whether you could prosecute, and punish criminally, false swearing, or any other forbidden act done under such proceeding. I thought the question a very grave one, and felt its weight and importance. I thought what I have stated could not be done consistently with established legal principles ; and I did not feel authorized to introduce new rules, or new principles of law, or at liberty to indulge in any subtlety or refinement on old ones, to enable me to sustain a proceeding involving such consequences.
It was insisted by counsel, that the court ought to give such a construction to the act, as that no citizen could, by possibility, be subjected to its operation before it had actually passed; and that, to prevent this, the court must either exclude the 1st day of July altogether, or must admit fractions of a day and suffer an inquiry into the very moment of time, when the act received the signature of the president; for, if a vessel had arrived in the morning of the 1st day of July, and the act was not in fact approved by the president until the afternoon of that day, it could not be pretended, that the goods brought in such vessel were imported after the passing of the act; and it was argued, that the difficulties attending ah inquiry into the time when a law was approved, as well.as the impropriety of calling on the president for information as to the moment when it received his sanction, might induce the court to say, that, when the-act was to take effect from and after the passing of the same, they would, as a general rule, exclude the day on which it passed.
Such were the considerations urged by the learned counsel in the case; and it will be perceived, that they are substantially the same, as those which have been presented on this occasion, But the court repudiated the argument of the learned counsel altogether, and held
The case to which I have just referred is certainly a very strong case, and appears to me to be exactly in point. It decides, that an act, which is to take effect from and after its passage, goes into operation the day on which it is approved, and includes the day. The determination is one of high and paramount authority, and, in my judgment, covers the whole question presented in the present case. Looking, then, both to principle and authority, I am not able to see, that there is any substantial ground for doubt upon the matter. Still, as different views have been expressed elsewhere, and as I never wish the rights of any party to be conclusively bound by my opinion, when there is any way open for an appeal to a higher tribunal, I shall very readily allow the question, if the petitioner desire it, to be certified into the circuit court, to be there ultimately settled and finally disposed of.