7 Conn. 558 | Conn. | 1829
Lead Opinion
Whether the suit in question was appeala-ble, is the sole enquiry. If it was not, the superior court had no jurisdiction of the cause ; and the judgment was legally arrested.
If the determination of the court below is to be tested by the charter of the city of Norwich alone, there arises no possible question. The provision is express, that in actions brought by the city treasurer for the recovery of a penalty arising under a by-law of the city, no appeal shall be allowed. Stat. 120. The defendant, however, claims a right of appeal, by virtue of the act of the General Assembly, passed in May 1828 ; and this right must be conceded, if the law is operative in this case. For, by this act, appeals are allowed to be made to the superior ' court in actions brought to recover penalties for the breach of a city by-law, if, as in this case, the title of the defendant’s land is in question.
The act alluded to, on the fairest principles of construction, authorizes appeals in cases posterior to the time of its legal commencement, and in no other. The expression of it.is future and prospective. “ Whenever an action shall be brought to recover a penalty,” is its phraseology. Had the legislature intended it, it were easy and natural for them to have said, in all actions for penalties, appeals shall be allowed ; and the only assignable reason why they did not, is most obvious ; they had no such intention. They made, and intended to make provision for the future only, and permitted the past to remain under the dominion of the former law.
A construction of the act that should cause it to retrospect, has been contended for, notwithstanding the expression of it is merely prospective and in relation to the future. But by this Court, in The Thames Manufacturing Company v. Lathrop & al. (ante, p. 550.) it was explicitly decided, that an act of the General Assembly ought not to have a retrospective operation, unless so declared in the most unequivocal manner. Such is 'the general strain of judicial decisions on this subject. 2 Inst. 292. 6 Bac. Abr. 370. (Gwil. ed.) Helmore v. Shuter & al.
Assuming, then, the act of May session, 1828, to be a prospective regulation merely, it remains to enquire, when was the plaintiff’s action brought, and at what time did the law com-commence.
On the 28th of May 1828, the plaintiff instituted his action, by the service of his writ. Spalding v. Butts & al. 6 Conn. Rep. 28. This is the date of the officer’s return ; and the return is prima facie evidence of the facts certified. Butts &. al. v. Francis, 4 Conn. Rep. 424. Booth v. Booth, 7 Conn. Rep. 350.
The act in question of May session 1828, was signed and approved by the governor, on the 4th day of the succeeding June; and could not have had an earlier commencement than this. By the constitution of the state (art. 4. sect. 12.) every bill, which shall have passed both houses of the General Assembly, must be presented to the governor, and if he approves, he is to sign it and transmit it to the secretary. Then, and not before, it becomes a law. On the 4th®of June, 1828, the act was signed and approved.
On a principle of common law, the court judicially know the time when the legislature terminated its session. The commencement and close of the General Assembly, and other facts of the same public and general nature, are of judicial cognizance. 1 Chitt. Plead. 219. Birt. q. t. v. Rothwell, 1 Ld. Raym. 210. 343. Eliz. Shipden’s case v. Dr. Redman, 1 Lev. 296. The Bishop of Norwich’s case, Moore 551. Bac. Abr. tit. Statute. L 5. And at least, it is an indisputable fact, that the session of May 1828, did not terminate before the 4th day of June before mentioned,
From the premises it necessarily results, that the General Assembly terminated its session on the 4th of June 1828, and that the plaintiff’s action was commenced six days before ; that is, the 28th day of May. The act in question, then, is inapplicable to this case, and it is affected by the charter of the city alone, which inhibits an appeal.
It was suggested in the argument, that the want of jurisdiction cannot now be taken advantage of, on the ground that the parties, by proceeding to trial on the merits, have submitted to the jurisdiction. Undoubtedly, it is true, that where the court has a general jurisdiction over any subject, until the want of it is demonstrated by extrinsic facts, they must be duly pleaded. But where the jurisdiction of a court is limited, (a legal truth in respect of all our courts) and the want of jurisdiction appears from the face of the record, the court not only may, but ought, to dismiss the suit, at any time, and in any stage of it. The court, who are to decide according to law, are not concluded by the admission.of the parties. Bac. Abr. tit. Abatement. K. Lockwood v. Knapp, 4 Conn. Rep. 258. Martin v. Commonwealth & al. 1 Mass. Rep. 347. Lawrence v. Smith & al. 5 Mass. Rep. 362.
I am of opinion, that the superior court had not jurisdiction of the plaintiff’s action, and that the arrest of judgment was correct.
From tlio imperfection of the copy of record furnished me, I am unable to determine, whether all the facts stated in the plaintiff’s motion in arrest were found to be true; a fact, which I believe exists ; and that would have saved the trouble of the preceding discussion. [Note by the Chief Justice.] See note by reporter, ante, p. 560.
Concurrence Opinion
Several subordinate questions have been discussed in this case, which it is not necessary to decide or consider, as a decision of the principal one is final. Was this cause appealable, or within the jurisdiction of the superior court ? If it was not, our labour is in vain ; for a judgment coram non judice is a nullity.
By the charter of this city, which is a public law, in force when this action was commenced, the city court had cognizance of all causes (wherein the title of land was not concerned) cognizable by the county court, provided the cause of action arose, and one or both of the parties lived, within the city. And in actions brought to the city court for penalties under the by-laws, no appeal was allowed. Stat. 112. 120. tit. 15. c. 1. s. 8. 20. The defendant, however, claims, that
I dissented from the opinion of the Court in the case last cited ; but not on this point. I then thought and still think, that a retrospective statute (it is not a law) affecting vested rights, is utterly void ; and that the judiciary not only may, but must, declare it so. So thought Ch. J. Kent, in Dash v. Van Kleeck. The marginal summary is : “ It is a principle of universal jurisprudence, that laws, civil or criminal, must be prospective, and cannot have a retroactive effect.” So thought Mr. Justice Story, in The Society for the propagation of the Gospel &c. v. Wheeler & al. 2 Gal. 105. So thought the supreme court of the United States, in Ogden v. Blackledge, 2 Cranch 272., who considered the point too plain for argument, and said, that a statute could not retrospect so as to take away
But it is said, that there is no evidence, that the suit was commenced before the passage of the statute in question. It appears by the sheriff’s return, which is a part of the record, that the process was served May 28th, and that the statute authorizing an appeal vras approved June 4th, 1828. It is a well settled rule, that the return of an officer is prima facie evidence of the facts therein stated. This statute is a public law, whereof we are bound to take notice. Butts & al. v. Francis, 4 Conn. Rep. 424. Slayton v. Chester, 4 Mass. Rep. 478. 1 Bla. Comm. 85.
It is also said, that the appearance of the plaintiff after the appeal, and submitting to the jurisdiction of the court, by proceeding to trial on the merits, are equivalent to a waiver of all exceptions to the appeal and to the jurisdiction of the court ; and so is the lawq when the want of jurisdiction arises from the want of legal notice. But when the want of jurisdiction appears of record, the defect cannot be supplied by the submission of the party ; for the agreement of the parties cannot alter the law, nor make that good which the law makes void. Aldrich v. Kinney, 4 Conn. Rep. 380. Mitchell v. Kirtland, 7 Conn. Rep. 229. and the authorities there cited.
I am, therefore, of opinion, that there is no error in the judgment complained of.
Judgment affirmed.
