19 W. Va. 564 | W. Va. | 1882
announced the opinion of the Court:
Three other cases partaking of the character of this are before this Court for its decision. They have all, been fully ' and elaborately argued ; and we have examined with care the arguments in all of the oases. It is strenuously insisted by counsel for the plaintiff in error, that there was no authority' inherent in the court, nor was it within the constitutional power of the Legislature to give the right to the court to grant a new trial in this case, after the term, at which the judgment was rendered, had passed. It is undoubtedly true, that under such circumstances the court has no inherent pow«sr to grant a new trial; and that the proposition, sustained by an almost unbroken chain of authorities, is also true, that under a Constitution, which divides the government into three separate and distinct departments, viz : the legislative, the executive and the judicial, without especial authority in the Constitu
It is also contended, that the people in the adoption of a Constitution for their own government have no more power over this subject than a Legislature, and a number of authorities are cited to sustain this position. But I think a careful review of these authorities will disclose the fact, that while the people in the adoption of a Constitution restricted by the provisions of the Constitution of the United States cannot any more than a Legislature “pass an ex post facto law, or law impairing the obligation of a contract,” yet that these authorities or the great weight of them with few if any exceptions limit the power of the people only to this extent.
The people of the State of West Virginia, when they adopted the present Constitution on the 22d day of August, 1872, said in section 35 of article VIII of that instrument: “No citizen of this State, who aided or participated in the late war between the government of the United States and a part of the people thereof on either side, shall be liable in any proceeding, civil or criminal; nor shall his property be seized or sold under final process issued upon judgments or decrees heretofore rendered or otherwise because of any act done according to the usages of civilized warfare in the prosecution of said war by either of the parties thereto. The Legislature shall provide, by general law, for giving full force and effect to this section by due process of law.”
We well remember the occasion for inserting this unusual provision in the organic law. The people seven years before had emerged from a civil war; and when the war was over, and the angel of peace had spread his white pinions over a stricken country, it was sincerely hoped by those, whose Jove of country outweighed their malice, that forgetting the past with its bitter surroundings we would at once be brothers again, and all recollection of the cruel war with its horrors would be drowned, in the deep of oblivion, never to be revived. But the promise of this happy state, which had been
The people of a State in their sovereign capacity, in adopting a Constitution for their government, have the right to do anything, which they are not prohibited from doing by the Federal Constitution, which was made and ratified by the States themselves. All power before the adoption of the Constitutions State and Federal resided in the people of the States, and it is and can be restrained only so far, as the people have restrained themselves in the Constitutou, which they ,have adopted. When the people of the Colonies separated from Great Britain, they retained all the powers of the British ■Parliament, which Mr. Justice Blackstone says are omnipotent; and in the State Constitutions, which they adopted, . they gave up such powers only, as they deemed for the public good, and for the security of life, liberty, and property; and when the Federal Constitution was framed, some of their • powers were granted to the government of the United States; but by that grant, no powers passed except such, as were delegated to the United States in the Constitution ; all other powers not prohibited to the States are therein expressly reserved to the States respectively, or to the people thereof, of ■ course the people of the States respectively, who had then entered or should thereafter enter into the compact. In recognition of this principle the Supreme Court of the United States has many times held, that the Legislatures of the States were not inhibited by the Constitution of the United States from
Mr. Justice Story in delivering the opinion of the Court in Watson v. Mercer, supra said : “It is clear, that this Court has no right to pronounce an act of the State Legislature void as contrary to the Constitution of the United States from the mere fact, that it devests antecedent vested rights of property.” To the same effect are all the cases cited upon this subject. It is not pretended, that this constitutional provision is a bill of attainder or ex post facto law, but that it violates the obligation of a contract, and further, that it is inhibited by the Fourteenth Amendment to the Constitution, which declares: “Nor shall any State deprive any person of life, liberty or property without due process of law.” The Fifth Amendment to the Constitution of the United States, which was in force, when all the above decisions were made, declared, that “no person shall be deprived of life, liberty or property without due process of law.” But the Supreme Court has held, that this amendment does not apply to the States, but only to the general government. Barron v. Mayor of Baltimore, 7 Pet. 247; Lessee of Livingston v. Moore, 7 Pet. 551.
So the only enquiry we have to make as to the validity of the constitutional provision we are considering is : Does it violate the obligation of a contract, and if not, does it deprive any person of property without due process of law? Is a judgment founded upon a tort a contract?
In Fletcher v. Peck, 6 Cranch 137, supra, Marshall, Chief Justice, defines a contract to be a “compact between two or more parties.” In Charles River Bridge v. Warren Bridge, 11 Pet. 420, Mr. Justice McLean in his opinion 572 said: “What was the evil, against which the Constitution intended to provide by declar
In Baltimore & Susquehanna R. R. Co. v. Nesbitt et al., 10 How. at page 398 Mr. Justice Daniel in delivering the opinion of the Court said : “It must be certainly shown, that there was a perfect investment of property in the plaintiff in error by contract with the Legislature and a subsequent arbitrary devestiture of that property by the latter body, in order to constitute their proceeding an act impairing the obligation of a contract.”
In Sturges v. Crowningshield, 4 Wheat. Chief Justice Marshall at page 197 in speaking of the meaning of the Constitution of the United States said : “It would seem difficult to substitute words, which are more intelligible or less liable to misconstruction than those, which are to be explained. A contract is an agreement, in which a party undertakes to do or not to do a particular thing. The law binds him to perform his undertaking; and this is of course the obligation of his contract.”
In Todd v. Crumb, 5 McLean 172 it was held, that a judgment is not an agreement, contract or promise in writing, nor is it in a legal sense a specialty.
In Garrison v. City of New York, 21 Wall. at page 203 Mr. Justice Field in delivering the opinion of the Court said :“It may be doubted, whether a judgment not founded upon an agreement express or implied is a contract within the meaning of the constitutional prohibition. It is sometimes called by text-writers a contract of record, because it establishes a legal obligation to pay the amount recovered, and by fiction of law where
In delivering the opinion of the court in Blount v. Windley, 5 Otto, at page 176, Mr. Justice Miller said : “ The proposition of plaintiff in error is, that when he recovered the judgment against the defendant, he had a right to exact and receive in payment of that judgment gold or silver coin or the legal-tender treasury-notes of the United States, and that defendant had no right to pay him anything else; that the judgment was a contract, and the obligation of it is impaired by the statute, which authorizes payment in something else. It is undoubtedly true in some sense and for some purposes, that a judgment has been treated and considered as a contract; and we are not disposed to deny, that the judgment in this case is evidence of a contract, but the judgment is only a' contract, because it is evidence of a debt or obligation on the part of defendant due to plaintiff. The judgment itself presupposes and is founded on some antecedent obligation or contract and is only a higher evidence of that contract, because it now has the sanction of the judicial
Mr. Justice Swayne in delivering the opinion of the court.’ in Edwards v. Kearzey, 6 Otto 599, said : “A contract is the agreement of minds upon a sufficient consideration that something shall be done, or shall not be done.”
It is clear, that a.judgment founded upon a tort can in no case be regarded as a contract. There is no agreement of the parties; and there is no consideration. It is founded upon . no agreement of the parties, and there could have been no con-, sideration moving the parties in such a case. Instead of harmony there was discord; instead of agreement there was disagreement; and it would be absurd to say, that under such circumstances there could be a contract between the parties. But it is insisted by counsel for plaintiff in error that “in Gunn v. Barry, 15 Wall. 610, the Supreme Court of the United States expressly affirmed, that a convention of the citizens of a State could no more set aside a judgment or destroy a vested right than a Legislature.” Let us see what was decided in Gunn v. Barry. An exemption-law of Georgia exempted from execution in favor of each head of a family “fifty acres of land and five additional ones for each of his children under the age of-sixteen years, the land to include the dwelling-house and improvements, if the same do not exceed $200.00,” and exempted many other things, chiefly household-furniture, wearing apparel, books, family-portraits, &c. When that law was in force, a judgment for $531.00 was recovered against the defendant in the action, who had two hundred and seventy-two and one half acres of land worth $1,300.00, and had no other property but land worth $100.00, from which the judgment could be satisfied. After this the new Constitution was adopted, which provided, that “Each head of a family should be entitled to a homestead of realty to the value of $2,000.00 in specie and personal property to the value of $1,000.00 in specie, to-be valued at the time they are set apart;” and ordained further that “ISTo court or ministerial officer in this State shall ever have jurisdiction or authority to enforce any judgment, decree or execution against said property so set apart, including such
It was taken for granted in that case and not controverted by any one, that the judgment was founded upon a contract, the obligation of which had been impaired. Mr. Justice Swayne at page 623 says: “The legal remedies for the enforcement of a contract, which belong to it at the time and place, where it is made, are a part of its obligation.” This case decides, what has been conceded in this opinion, that the people of a State in adopting their Constitution cannot impair the obligation of a contract any more than a Legislature can. If the judgment had been founded upon a tort, it would have been shown in the case; but it seems to have been conceded, that it was founded on contract. It was not intended by the Court to give any different definition to “contract,” than had been so often by the same Court applied to the term. That case was not intended to and does not decide, that a judgment founded on tort is in any sense whatever a contract. We conclude, that the constitutional provision, which we are considering, does not impair the obligation of a contract.
But does it deprive any person of property without due process of law? The question whether a judgment is “property” within the meaning of the constitutional prohibition has been discussed, and authorities pro and con. have been cited. Among the authorities so cited are the following: Calder v. Bull, 3 Dall. 386; Knote v. United States, 5 Otto 154 ; Murray v. Charleston, 6 Otto 432; Lovejoy v. Murray, 3 Wall. 1; H. & N. R.
Judge Cooley Constitutional Limitation 352 says: “Perhaps no definition of ‘due process of law’ is more often quoted than that given by Mr. Webster in the Dartmouth College Case: ‘By the law of the land is most clearly intended the general law; a law, which hears, before it condemns; which proceeds upon enquiry and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property and immunities under the protection of thegenernl rules, which govern society. Everything, which may pass under the form of an enactment, is not therefore to be considered the law of the land.’ ”
In Westervelt v. Gregg, 12 N. Y. 209, Mr. Justice Edwards said: “Due process of law undoubtedly means in the due course of legal proceedings according to those rules and forms, which have been established for the protection of private rights.”
In Bank of Columbia v. Okely, 4 Wheat. 235, Mr. Justice Johnson said : “As to the words from Magna Charta, interpreted in the Constitution of Maryland, after volumes spoken and written with a view to their exposition, the good sense of mankind has at length settled down to this : that they were intended to secure the individual from the arbitrary exercise of the powers of government unrestricted by the established principles of private rights and distributive justice.”
In the case of Wynehamer v. The People, 13 N. Y. 432, Selden, Judge, in speaking of the New York Constitution after quoting the clauses said : “The first of these clauses had its origin in Magna Charta; brief as it is, it embodies the
Strong, Judge, in Huber v. Reily, 53 Pa. St. 117 says of “due process of law: “It ordinarily implies and includes a complainant, a defendant and a judge, regular allegations, opportunity to answer, and a trial according to some settled course of judicial proceeding. It must be admitted, there are a few exceptional cases. Prominent among these are summary proceedings to recover debts due to the government, especially taxes, and sums due by defaulting public officers.”
Judgments in our State are liens on all the defendant’s real estate owned at the date of the judgment, and such as he may afterwards acquire. They are encumbrances on his real es
• Although it was in express terms made the duty of the Legislature to provide by general law for giving full force and effect to the section by “due process of law,” yet I have no doubt, that the section operates exproprio vigore, and that there is in the court ample power to give full force and effect to the provision without any legislation whatever. Johnson v. Parkersburg, 16 W. Va., 402; Mason v. Harper’s Ferry Bridge Compang, 17 W. Va., 396. The Legislature, if it had thought proper, might have conferred upon a court of chancery in all cases brought under the section invoking its aid power to submit to ajury, when an issue would not otherwise be proper, or to the court, when an issue would be proper, the question to be determined, whether the judgment or decree was recovered or rendered “ because of an act done according to the usages'of civilized warfare in the prosecution of the war,” and that upon the verdict, if it found, that thejudgment was so rendered, or upon the finding of the court upon the question, to perpetually enjoin it or pronounce it void; and if found otherwise, to dissolve the injunction, if one had been granted, and dismiss the bill. We are speaking altogether in this opinion as to judgments, which had not been enforced at the time the constitution was ratified ; whether the provision reaches any other judgment of the same character theretofore rendered and satisfied, or would give any remedy to those, who had paid them, we do not decide, as the question is not before us. But as the provision of the Constitution without legislation, the mandate of the provision being explicit, of its own vigor is in full forcé, a court of equity under its ordinary powers has full control over the subject, on the ground that such a judgment or decree, if rendered for. the act specified in the provision, is void, just as judgments rendered
But section 3 of chapter 58 of the Acts of 1872-3 provides as follows: “That if it shall be alleged by petition under oath of the defendant, or his personal representative, to the court, in which any judgment or decree shall have been rendered, or to any court, to which such judgment or decree shall be transferred, that such judgment or decree was secured or rendered by reason of an act done by the defendant according to the usages of civilized warfare in the prosecution of said war, a copy of which having been served on the plaintiff, his agent or attorney at law, or if he be dead, upon his personal representative ten days prior to filing the same, the court shall suspend proceedings upon such judgment or decree; and being satisfied of the truth of said allegation, or if it appears by the record, that a plea setting forth, that the matters complained of were done in accordance to the usages of civilized warfare in the prosecution of said war, was filed, or offered to be filed by the defendant and rejected or overruled by the court, shall set aside the judgment or decree and award a new trial therein, which shall be governed by the provisions of this act, and in case the judgment or decree upon the new trial be in favor of the defendant, and he shall have paid the said judgment or decree, or any part thereof, the court shall render a judgment or decree, that the same shall be restored, to the defendant with interest, and shall enforce such restitution by execution
The judgment of the circuit court of Mineral county rendered on the second day of February, 1878, setting aside the judgment in the petition described rendered in the case of Ebenezer Kitzmiller v. John T. Peerce, on the 23d day of March, 1869, for $410.00 with interest and costs and granting a new trial therein is reversed with costs; and this Court proceeding to render such judgment as the circuit court should have rendered, the demurrer to the petition is sustained and the said petition is dismissed at the costs of the petitioner, but without prejudice to auy rights either in law or equity, which the petitioner had or may have with reference to said judgment under section 35 of Art. VIII of the Constitution of West Virginia.
Judgment Reversed. Petition Dismissed.