53 N.H. 576 | N.H. | 1873
Can the act of 1872 be constitutionally applied to penal suits existing at the time of its passage ?
In Rich v. Flanders, 39 N. H. 304, it was held by a majority of the court that the legislature could, by a general act, remove the common-law disability of parties to testify in pending as well as future suits. The objection to retrospective laws is declared, in article 23 of the bill of rights, to be, that they are highly injurious, oppressive, and unjust.” The objection is substantial, not formal, — reasonable, not technical; and the reason of the objection, like the reason of all law, is to be considered in interpretation and administration. The reason of the constitutional prohibition of retrospective legislation is, the material and substantial injury, oppression, and injustice caused by its practical operation.
Taking the prohibition in the reasonable and equitable sense, explicitly announced in the bill op rights as a prohibition of the injustice of retrospectively converting right into wrong or wrong into right, and applying it in that sense to the case of Rich v. Flanders, it might be argued that, in allowing both parties to testify, there was no such transmutation, but merely a grant of equal rights to both parties by an im
An argument of that kind might be made, in support of the doctrine of Rich v. Flanders, on very narrow ground. We are not to be understood as saying that it is only on such a ground that the doctrine of that case can be supported ; but it is suggested that, if such a ground can be maintained, it would be sufficient for that case.
In the present case, at the time of the passage of the act of 1872, there were three plaintiffs; and they, jointly constituting the party plaintiff, had no right of action against the defendant, and he was under no liability to them. This state of things the legislature undertook to change, by allowing two of the plaintiffs to withdraw, — a proceeding which, if successfully followed, would, so far as these parties are concerned, change no cause of action into a good cause of action, and operate as a substantial creation of a new suit that could be maintained, in place of an old one that could not. This is going far beyond impartially giving both parties additional means of proof. We see nothing in the doctrine of Rich v. Flanders that sustains legislation of this character.
There is much authority for holding, in general terms, that a right to have one’s controversies determined by existing rules of evidence is not a vested right; that rules of evidence pertain to the remedies which the state provides for its citizens; that, like other rules affecting the 2;emedy, they must at all times be subject to modification by the legislature ; that changes affecting the remedy may lawfully be made applicable to existing causes of action; that tlie changes are not retrospective, because they are to be applied in future trials, and are not to
A statute is not necessarily just and valid because it affects the remedy. The question is, not whether it affects the remedy, but whether it affects the remedy in a certain sense, and the remedy only. This point is forcibly illustrated in the dissentixxg opinion of Bell, C. J., in Rich v. Flanders, 39 N. H. 347, 348. If a statute, in terms made applicable to pending suits, should provide that no deed shoixld be received in evidence unless the attesting witnesses were fifty yeai's of age at the time of the trial, and if the retrospective character of such a Statute wei'e the only objection to its validity, it would not be made valid by the fact that it affected the remedy. It coixld not be applied to pending suits, or to deeds duly executed before its passage, because it would unjustly affect rights as well as rexnedies. Legal evidence of title could not be justly destroyed, however strongly the statute might profess to be exclusively aimed at the remedy. The principles of justice, declared by the prohibition of retrospective laws, are xxot evaded by words, names, and pretences. And when we have merely ascei’tained that a statute affects the remedy in some sense or other, we have made very little progress in the inquiry whether it affects a light, that is, whether it is unjust on general principles. If a certain change can be made in the rexnedy, it is because it can be justly made: if a change cannot be made in the right, it is because it cannot be justly made.
A statute abolishing the action of assumpsit, and substituting for it the action of debt, might be applied, without injustice, to existing causes of action not in suit; but it could not be constitutionally applied to oppress a plaiixtiff in a pending suit in assumpsit. Having incurred expense in bringing a proper suit, and pursuing a remedy provided by law, it would be unjust to turn him out of court, render a judgment against hixn for the defendaxxt’s costs, and leave him to another remedy, in the pursuit of which he might again be defeated in the same manner by another statute. In one sense, such legislation would affect the remedy only ; but, in the constitutional sense, it would be introspectivo, injurious, oppressive, and unjust, and, therefore, unconstitutional ; and it is not apparent lxow the constitutional sense, in such a
Without undertaking to establish a rule for the disposition of other cases of a different kind, we think the application of the act of 1872 to this case would be an inroad upon the conservative constitutional ideas that have prevailed in this state. In Woart v. Winnick, 3 N. H. 473, 481, 482, it was held that the legislature cannot prescribe new rules for the decision of existing causes, so as to change the ground of the action or the nature of the defence; that it is most manifestly injurious, oppressive, and unjust, that, after an individual has, upon the faith of existing laws, brought his action, or prepared his defence, the legislature should step in, and, without any examination of the circumstances of the cause, arbitrarily repeal the law upon which the action or the defence had been rested ; that such an exercise of power is wholly irreconcilable witty the spirit of our institutions, and with the great principles of freedom upon which they are founded ; and that a repeal of a statute of limitations could not be applied to a pending suit to take away a defence that had accrued at the time of the repeal. Suppose the general statement, that the nature of the defence cannot be changed, is to be understood with the qualification that the defence is based upon substantial equity, and not upon a mere informality : the defence here is, that the suit is brought by several persons on a joint cause of action which does not exist; that the cause of action, created by the statute, is vested by the statute in the one