Inhabitants of Goshen v. Inhabitants of Stonington, 4 Conn. 209

Inhabitants of Goshen v. Inhabitants of Stonington

4 Conn. 209 | Conn. | 1822

Lead Opinion

Hosmer, Ch. J.

In this case, several questions have been raised, on which I shall express an opinion, in the order in which they have been presented by the defendants’ counsel.

1. It has been objected, that an actual request for the supplies furnished the paupers, or an express promise of payment, was requisite, to fix a legal liability on the defendants.

If the advancements made had been voluntary, the objection would be well founded, and fatal to the plaintiffs’ hopes; but, they were compelled by law to make them; and in this event, the law gives a right of recovery. The plaintiffs’ case may be assimilated, to the payment of money by a surety for his principal, which furnishes a sufficient cause of action, without an actual request or promise. 1 Chitt. Plead. 340. Exall v. Partridge & al. 8 Term Rep. 308. 310. Child v. Morley, 8 Term Rep. 610. 614.

It has been said, that the paupers do not appear to have had their residence in Goshen, when their necessities were supplied. No such objection was made on the trial; for had it been, the plaintiffs must have been nonsuited. The fact, however, on this point, has been misconceived. The motion states, that the plaintiffs claimed to have proved, that “immediately upon the said Betsey and her children becoming chargeable to the plaintiffs, they gave notice thereof to the defendants; and that she and her children were likely so to continue; and requested the defendants to come and take them away, which they neglected to do.” It is, therefore, unquestionable, that the title of the plaintiffs to recover, was placed on the foundation of an actual residence of the paupers in Goshen, and necessary advancements made to them.

2. The evidence of acts done by Christie, admitted to prove his ordination, has given birth to the next objection.

A clergyman in the administration of marriage, is a public civil officer, and in relation to this subject, is not at all distinguished from a judge of the superior or county court, or a justice of the peace, in the performance of the same duty. In *219Berryman v. Wise, 4 Term Rep. 366. it was decided, by the court of King’s Bench, as it had been previously decided by all the judges in Westminster-Hall, in the case of Gordon, that the legal capacity of peace officers, justices of the peace, constables, &c. was sufficiently proved, by their having acted in those characters, without the production of their appointments; and in Vernon v. East-Hartford, 3 Conn. Rep. 475. the same principle was recognized, by this court. The rules of evidence are of an artificial texture, framed for convenience in courts of justice, and founded on good reason; (Omychund v. Barker, 1 Atk. 46.) and the admission of the acts of a clergyman in the celebration of marriage, as prima facie proof of his official character, is not only commodious, but may be necessary, in order to prevent the deplorable consequences which might result from the requirement of higher evidence. It would be a gross anomaly to admit the acts of one public officer as proof presumptive of his official capacity, and to deny the same evidence, when the official capacity of another public officer is in question.

3. An objection has been made to the validity of the marriage between Betsey Cooke and her husband, upon which the claim of the plaintiffs is founded. By the statute law, existing at the time, when this connexion was supposed to be formed, a minister invested with authority for this purpose, must have been ordained, and settled in the work of the ministry. Christie, the person who joined Cooke and wife in matrimony, was a Methodist clergyman, duly ordained, itinerating, as is the custom of many of that order, and not settled, within the intendment of the law. To remedy this and similar inconveniences, which had arisen from a misconstruction of the statute, and which, from their number, had become formidable, the legislature, in May, 1820, passed an act, rendering valid, to all intents and purposes, all marriages performed by an ordained minister, qualified and empowered to celebrate them, according to the forms and usages of any religious society or denomination. That Cooke and wife were married, by an authorized clergyman, conformably to the “forms and usages” of the religious denomination, of which he was a member, is not susceptible of dispute; but to the efficacy of the confirmatory act of May, 1820, several objections have been made.

First, it was said, that the retrospective operation of the law may and ought to be obviated, by construing it to intend the validation of marriages merely, without imparting to it any *220retrospection as to the rights of others. It must be admitted, that by construction, if it can be avoided, no statute should have a retrospect, anterior to the time of its commencement. Helmore v. Shuter & al. 2 Show. 17. Dash v. Van Kleeck, 7 Johns. Rep. 477. 485. This principle is founded on the supposition, that laws are intended to be prospective only. But when a statute, either by explicit provision, or necessary implication, is retroactive, there is no room for construction; and if the law ought not to be effectuated, it must be on a different principle. The act of May, 1820, is, in its expression, inconvertibly clear and definite. It does not pause, after imparting validity to marriages, but confirms them “to all intents and purposes.” By this phraseology, they are declared to be valid ab initio. By limiting the act to one intent and purpose, we should contravene a most intelligible expression, that the contemplated marriages shall be valid, “to all intents and purposes.” The sweeping universality of this phraseology, cannot be parried, by construction.

It is an admitted principle, that where it manifestly is within the intention of the legislature, that a subsequent act shall not controul the provisions of a former, it shall not he construed to have such operation, even though the words, strictly and grammatically, would have that effect: But, the intention of the legislature must first be ascertained from some legitimate source, before we contravene its letter. If the expressions of the law are clear and precise, and pointedly oppose the construction demanded; unless the object of it furnishes a reason for deviating from the plain meaning of its words, the expression must be considered as indicative of the intention. “Where the meaning of the statute is plain and evident, we must construe it according to the words; and it never can be admitted to give a construction to a statute different from the import of the words, from a conjecture that the legislature had a different meaning.” Curtis v. Hurlburt, 2 Conn. Rep. 309. 315. There is nothing apparent on the act of May, 1820, by which the purpose of its enaction is defined, otherwise than by the language in which it is expressed; and if the occasion of passing it may be resorted to, the evidence resulting from this source, demonstrates, that the words of the law, and the intent of the legislature, were precisely identical.

Secondly, it has been insisted, that the law in question is unconstitutional. There is no pretence, that it is opposed to *221the constitution of the United States; that is, that the confirmatory act is a law ex post facto, or one which impairs the obligation of contracts. By the second article of the constitution of Connecticut, it is affirmed, that “the powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy-to wit-those which are legislative to one; those which are executive, to another; and those which are judicial, to another.” The law of May, 1820, has been considered as the exercise of a judiciary power, and for this reason, in contravention of the constitution but the supposition is wholly destitute of support, as the act in question does not affect to give a construction to the former law, but most manifestly purports to impart validity to certain proceedings, which were erroneously supposed to be legal, and which the statute did not authorize. The power exercised, in its nature, is, exclusively, legislative, and not opposed to the recited article of the constitution.

Lastly, the defendants have insisted, (and on this objection the principal stress has been laid) that the law of May, 1820, being retrospective, and in violation of vested rights, it is the duty of the court to pronounce it void.

The retrospection of the act is indisputable, and equally so is its purpose to change the legal rights of the litigating parties. Whether in doing this there has been injustice, will be an enquiry in a subsequent part of my opinion.

It is universally admitted, and unsusceptible of dispute, that there may be retrospective laws impairing vested rights, which are unjust, neither according with sound legislation, nor the fundamental principles “of the social compact.” If, for example, the legislature should enact a law, without any assignable reason, taking from A. his estate, and giving it to B., the injustice would be flagrant, and the act would produce a sensation of universal insecurity.

On the other hand, laws of a retroactive nature, affecting the rights of individuals, not adverse to equitable principle, and highly promotive of the general good, have often been passed, and as often approved. In the case before us, the defendants have expressly conceded, that the law in question is valid, so far as respects the persons de facto married, and their issue. But, in that event, would it not have a retrospective operation on vested rights? The man and woman were unmarried, notwithstanding the formal ceremony which passed between them, and free, in point of law, to live in ce*222libacy, or contract matrimony with any person, at pleasure. It is a strong exercise of power, to compel two persons to marry, without their consent; and a palpable perversion of strict legal right. At the same time, the retrospective law, thus far directly operating on vested rights, is admitted to be unquestionably valid, because it is manifestly just.

I very much question, whether there is an existing government, in which laws of a retroactive nature and effect, impairing vested rights, but promotive of justice and the general good, have not been passed. In England, such laws frequently have been enacted; and the act of 26 Geo. 2. cap. 33., giving validity to former marriages, celebrated in any parish church or public chapel, is precisely of this description. Doug. 661. n. In the neighboring state of Massachusetts, there have been many such laws; (Foster & al. v. The Essex Bank, 16 Mass. Rep. from 257. to 261.) and the interposition of our own legislature, in similar cases, is familiar to gentlemen of the profession. The judgments of courts, when by accident a term has fallen through, have been established; the doings of a committee and conservator, not strictly legal, have been confirmed; and other laws have been passed, all affecting vested rights; but being incontrovertibly just, no disapprobation has ever been expressed. Who ever found fault with the law, authorizing the commissioners to require suitable railings on turnpike roads; and yet, in respect of all anterior grants, the act was retrospective, and put on the companies a new, and perhaps, an expensive burden. It, however, was just, demanded by the public good, and the subject of universal acquiescence.

The question, on which my attention is now exercised, has frequently arisen in courts, and has never been decided. It is not free from difficulty, on whichsoever side it is viewed; and although many persons have expressed an opinion on the abstract enquiry, it yet remains to be judicially determined.

Before I take a brief review of the cases on this subject, I will put out of question some arguments and decisions, which tend only to embarrass the matter in debate.

It has been said to be a principle of the English common law, that a statute is not to have a retrospective effect. Bracton, lib. 4. fol. 228. 2 Inst. 292. The cases do not warrant the point assumed; but this proposition they do establish, that a statute is not to be construed as having a retrospect. 6 Bac. Abr. 370. Gwil. ed. Such a construction ought never *223to be given, unless the expression of the law imperiously requires it. The cases of Helmore v. Shuter, 2 Show. 17. Couch v. Jeffries, 4 Burr. 2460, were determined on this principle. To the same effect only are Osborne v. Huger, 1 Bay 179. Ogden v. Blackledge, 2 Cranch. 272. Beadleston v. Sprague, 6 Johns. Rep. 101. and Wilkinson v. Meyer, 2 Ld. Raym. 1350.; although some have considered them as bearing, directly, on the question under discussion.

In the constitutions of some of the states, provision has been made, inhibiting the legislature from passing retrospective laws. This, undoubtedly, is a demonstration that, in the opinion of those states, such power ought never to be exercised, by their legislatures; but it does not authorize the inference, that they would not have been invested with it, had there been no opposing constitutional provision. The opposite may more fairly be deduced; and hence the limitation imposed on the legislature by the constitution. I, however, shall make no deduction from this source. I know not, whether the measure ought to be ascribed to a recognition of the power in question, unless restrained, or to a prudent precaution, lest it should be assumed; and it is the only fair result, in my judgment, that it has no relevancy to the question, I am endeavouring to discuss.

I shall not attempt to derive aid from the civilians, who sanction a retrospective law, if it be express; but on the opinion of Lord Bacon, I am disposed to place more dependence. Opposed, as he manifestly is, to the general allowance of retroactive laws, he admits their validity in cases, “ubi leges cum justitia retrospicere possent." De Aug. Scient. lib. 8. c. 3. Aphor. 47.-51. Sir William Blackstone (1 Comm. 91.) asserts, that, where the main object of a statute is unreasonable, the judges are not at liberty to reject it; for, says he, “that were to set the judicial power above that of the legislature, which would be subversive of all government.” If there are any absurd consequences, manifestly contradictory to common reason, arising collaterally out of acts of parliament, they, says that elegant author, with regard to those collateral consequences, are void. In a note on this passage, by the learned Mr. Christian, he remarks in the following language: “If an act of parliament is clearly, and unequivocally expressed, with all deference to the learned commentator, I conceive it is neither void in its direct nor collateral consequences, however absurd or unreasonable they may appear.”

*224This question occurred in the case of Calder & ux. v. Bull & ux. 3 Dallas 386. before the supreme court of the United States, which contains many interesting observations on the subject before us; but eventually it was determined on a different ground. Paterson, J. manifested a strong aversion to retrospective laws of every description, as being unsound legislation, and not accordant with the fundamental principles of the social compact; but expressed no opinion relative to the possible disallowance of them, by the judiciary. Chase, J. declared, that he could not recognize the omnipotence of state legislatures. He observed, “that the purposes for which men enter into society, will determine the nature and terms of the social compact; the nature and ends of legislative power, will limit the exercise of it;" and throughout his opinion, he exhibits a strong inclination of mind against laws which are retroactive. But without deciding the question, after a designation of laws which are retrospective, he concludes, by saying; “Such laws may be proper or necessary, as the case may be.” Judge Iredell delivered a clear and decided opinion, containing principles entirely adverse from those, which his associates bad expressed. “If,” says he, “a government composed of legislative, executive, and judicial departments, were established, by a constitution, which imposed no limits on the legislative power, the consequence would inevitably be, that whatever the legislative power chose to enact, would be lawfully enacted; and the judiciary power could never interpose to pronounce it void. It is true, that speculative jurists have held, that a legislative act against natural justice, must, in itself, be void; but I cannot think, that, under such a government, any court of justice would possess the power to declare it to be so.” It is incontrovertible, that the question under discussion, was not decided in Bull & ux. v. Calder & ux.; and even Chase, J. admitted, that retrospective laws might be proper and necessary, while Iredell, J. delivered an explicit opinion, that they were beyond the correction of the judiciary.

In Dash v. Van Kleeck, 7 Johns. Rep. 506. the validity of retrospective laws underwent a very able and learned discussion; but, eventually, on this point, nothing was decided. The judges universally agreed in the legal propriety of construing a statute, in prevention of its having a retrospect, it the court were not restrained, by expressions, explicit and unequivocal. Yates, J. considered the legislature, as possess*225ed of competent authority to pass the law in question; and Thompson, J., without having expressed a determinate opinion on the validity of retroactive laws, came to the result, that a law “ought not to have a retrospective operation, unless so declared, in the most unequivocal manner.” Ch. J. Kent was pointedly opposed to the retrospection of laws, impairing vested rights in any event; while Spencer, J. insisted, “that (their) state legislature, when acting within the pale of the constitution of the United States, and of (that) state, has the same omnipotence, which Judge Blackstone ascribes to the British parliament.” From this brief view of Dash v. Van Kleeck, there is no ground of pretence, that the controverted point, relative to retroactive laws, underwent a decision.

In the sister state of Massachusetts, it repeatedly has been determined, that anterior vested rights ought not to be impaired, by construction; (Wales v. Stetson, 2 Mass. Rep. 143. 146. Call v. Hagger & al. 8 Mass. Rep. 423 427. King v. Dedham Bank, 15 Mass. Rep. 447.) and an obiter opinion was expressed in Foster v. The Essex Bank, 16 Mass. Rep. 245. that an act of the legislature, which injures private property, or disturbs vested rights, should he declared void.

In result, I feel myself authorized to assert, that the question, where no constitutional objection exists, whether the judiciary may declare a retrospective law operating on vested rights, to be void, is undetermined; that men of profound learning and exalted talents, have greatly differed on the subject; and that it is an enquiry beset with difficulty.

With those judges, who assert the omnipotence of the legislature, in all cases, where the constitution has not interposed an explicit restraint, I cannot agree. Should there exist, what I know is not only an incredible supposition, but a most remote improbability, a case of the direct infraction of vested rights, too palpable to be questioned, and, too unjust to admit of vindication, I could not avoid considering it as a violation of the social compact, and within the controul of the judiciary. If, for example, a law were made, without any cause, to deprive a person of his property, or to subject him to imprisonment; who would not question its legality, and who would aid in carrying it into effect?

On the other hand, I cannot harmonize with those, who deny the power of the legislature to make laws, in any case, which, with entire justice, operate on antecedent legal rights. A retrospective law may be just and reasonable; and the right *226of the legislature to enact one of this description, I am not speculatist enough to question. I believe no person will deny, that the exercise of legislative authority, merely, and without further consequences, to confirm marriages, not duly celebrated, is valid, although clearly retrospective, and manifestly operating on the rights of individuals. And as every law intrinsically implies an opinion of the legislature, that they had authority to pass it, and that it is just and reasonable, on all occasions that may arise, it is proper to demand, that the supposed unjust violation of legal right, by statute, should be established, with great clearness and certainty. If a judge of the supreme court of the United States was authorized in the assertion (Calder & ux. v. Bull & ux. 3 Dallas, 386. 395.) that he would not decide any law to be void, except in a very clear case; with equal propriety may other judges adopt the same resolution, in respect of laws, which cannot be brought to the definite test of a written constitution, but which, as violations of the social compact, are claimed to be unwarrantable.

The act of May, 1820, was intended to quiet controversy, and promote the public tranquility. Many marriages had been celebrated, as was believed, according to the prescriptions of the statute. On a close investigation of the subject, under the prompting scrutiny of interest, it was made to appear, that there had been an honest misconstructiou of the law; that many unions, which were considered as matrimonial, were really meretricious; and that the settlement of children, in great numbers, was not in the towns, of which their fathers were inhabitants, but in different places. To furnish a remedy coextensive with the mischief, the legislature have passed an act, confirming the matrimonial engagements supposed to have been formed, and giving to them validity, as if the existing law had precisely been observed. The act intrinsically imports, that the legislature considered the law of May, 1820, to be conformable to justice, and within the sphere of their authority. It was no violation of the constitution; it was not a novelty; such exercises of power having been frequent, and the subject of universal acquiescence; and no injustice can arise from having given legal efficacy to voluntary engagements, and from accompanying them with the consequences, which they always impart. The judiciary, to declare the law in question void, must first recognize the principle, that every retrospective act, however just and wise, is of no validity; and that for the correction of every deviation *227of the legislature from absolute right, theirs is the supremacy. Impressed with the opinion, that this is beyond the confines of judiciary authority, I am satisfied with the decision at the circuit, and would not advise a new trial.

Chapman, Brainard and Bristol, Js. were of the same opinion.

Concurrence Opinion

Peters, J.

concurred in the result, on the ground that the marriage was originally valid; but he thought that the confirming act was void.

New trial not to be granted.