5 Or. 17 | Or. | 1873
Tbe action in tbis case is for criminal conversation, and the defendañt demurred to tbe complaint on tbe ground that tbe action is barred by tbe Statute of Limitations. The action was commenced in February, 1873, charging tbe acts complained of to have been committed in March,. 1870, and tbe appeal presents tbe question whether the time for commencing tbe action is barred by tbe amendatory act, passed October 22, 1870.
Tbe appellant submits tbe proposition that tbe amendment controls tbe period of limitation in all actions of tbis class by limiting it to two years from the time tbe cause of action accrued, whether tbe two years bad or bad not elapsed when tbe act was passed, and claims that if that mode of computation is not applicable in all cases, tbe time cannot in any case extend beyond two years from tbe passage of tbe amendatory act.
Tbe respondent takes the position that tbe language of tbe amendment, properly construed, does not include tbe case at bar; be also claims that tbe act is in violation of Art. 4, § 22 of the Constitution, which provides that “No act shall be amended or revised by mere reference to its title, but tbe act revised or section amended shall be set forth and published at full length;” and that it is in violation of § 20 of tbe same Article, which requires that tbe “subjects shall be expressed in tbe title.” Tbe Court does not deem it necessary to express an opinion on the constitutionality of tbe amendment, as we think tbe case at bar may be disposed of without reference to that question.
Tbis cause of action accrued some months before tbe passage of tbe amendatory act, and is not within its provisions unless the statute is retroactive.
Section 3 of tbe Code provides that “Actions at law shall only be commenced within tbe period prescribed in tbis title, after tbe cause of action shall have accrued;” and §§ 4, 5, 6, 7, 8 and 9 prescribe tbe periods and specify tbe causes of action embraced in each period, some of which specifications tbe amendment purports to change. Looking at tbe
The expression, a period of two years after the time the cause of action shall have accrued, if literally construed, 'or if taken in its ordinary acceptation, refers to a period commencing at a time subsequent to the enactment, and unless we depart from the more obvious construction of the language employed, tlie period of two years, as designated in the amended act, will apply only to causes that accrue at a time subsequent to the amendment. A literal construction will not necessarily include a cause of action that accrued before that time, and, the inquiry is whether this is a case where a departure from the ordinary import of the words of the statute is justified by the circumstances and will promote the ends of justice. Conceding that it is within the province of the Legislature to make statutes retroactive when they affect the remedy only, it does not comport with justice that such a statute should take effect immediately on causes where the two years had already expired; in fact that would be more than changing the remedy. (Scarborough v. Dugan, 10 Cal. 305.)
There is no substantial difference between a retrospective law declaring a particular class of contracts void, and one which takes away all remedy to enforce them. (Bronson v. Kinzie, 1 How. 311.)
Many of the cases cited are based upon statutory provisions differing materially from ours. In California, and in other States, where some of these eases have arisen, it is expressly enacted that the party shall have, after the
The language of the act will not extend, even by the most liberal construction, to any cause of action that had already accrued, without including those that had accrued more than two years before the amendment was enacted. The amendment makes but one rule for ascertaining when the period is to commence, and it makes no provision for a period to commence at the passage of the act; the time when the-“cause of action shall have accrued” is the only point at which the period can commence, and it would be disregarding the statute, rather than construing it, to make the period of two years commence at the passage of the amendment without regard to the time when the cause of action accrued.
If any reasonable construction would exclude from the effect of the amendment all cases in which fully two years had then run, and yet include some other eases in which the cause of action had already arisen, we find no rule for determining which of the latter cases should be included, or for discriminating between causes of action that accrued nearly two years before the passage of the act, and those that accrued a month or even a day previous. The computation commencing in all cases at the time the cause of action accrued, it might include cases that would become barred in a Aveek or a day after the passage of the act. As a general rule such construction is not favored, and courts have refused to ’ give a retroactive effect to statutes of this kind unless that intention is so clear and positive as by no possibility to admit of any other construction. (Wood v. Oakly, 11 Paige, 400; Dash v. Van Kleeck, 7 John. 477; Johnson v. Burrill, 2 Hill, 258; Van Allen v. Feltz, 1 Keys, 332.)
The Court is of opinion that in this class of actions the limitation of tAvo years applies only to those cases where the cause of action accrued after the passage of -the amendatory act.
The judgment of the Circuit Court should be affirmed.
