12 Md. 195 | Md. | 1858
delivered the opinion of this court.
This suit was instituted in the name of the State for the use of the Mayor and City Council of Baltimore, against Lambert S. Norwood, Elizabeth Smith, Joshua M. Turner, and John W. Watkins, upon the official bond of Norwood, as clerk of the Court of Common Pleas for the city of Baltimore, dated the 29th of June 1853; the penalty of which is fifty thousand dollars. The nclr and the plea are similar to those in the preceding case, between the State for the use of the Mayor and City Council of Baltimore, as plaintiffs below, against L. S. Norwood, E. Smith, and J. M. Turner.
In the case now before us, the record contains an agreement in the following language:
“It is agreed that in this Case errors in pleading on both sides be waived, and that either party may give in evidence any testimony which might have been offered in any state of the pleadings. The copy of the bond may be given in evidence without producing the original.”
It appears from the record a jury was sworn, and their verdict, as stated, is, “that the defendants do not Owe to the said plaintiff the said sum of money, or any part thereof, in manner and form as the said plaintiff hath above alleged.” And thereupon the court., on the l2(h of December 1894, gave judgment in favor of the defendants; from which this appeal is taken by the plaintiff.
The bill of exceptions shows that, upon the boiid being offered in evidence at the trial, the defendants’ counsel asked the counsel for the plaintiffs “for what purpose (he same was offered, and what breach of said bond it was intended to rely upon in this case, and, on the plaintiffs’ counsel refusing to answer that question, or declare on what breach he intended to proceed under said bond, the Court sustained the objection of the defendants’ counsel as to its being offered in evidence, and the same was ruled out, because the bond, oil its face, covering all the duties and liabilities of (he defendant, Nor-wood, as clerk of the Court of Common Pleas, unless it is offered with the intent to prove, under the breaches of it, some default in which the State is directly concerned and interested,
In Laurenson vs. The State, &c., 7 H. & J., 339, in a suit upon a bond with a collateral condition, no breaches were assigned, but there was an agreement similar, in most respects, to the one in the present case. The court considered that a waiver of errors in pleading, and as dispensing with an assignment of breaches in the regular mode. In delivering the opinion of the court, and whilst speaking of such a practice, the late Judge Mai'tin called it “a very loose course of proceeding,” and we think he gave it an appropriate name. The authority Of that, case, however, requires us to hold in this, that under the agreement thefe Was no need of suggesting breaches in the pleadings, or upon the roll. And we must also say, that the refusal of the counsel for the equitable plaintiffs to state what breach of the bond he intended to rely upon, when he was asked to do so, could not justify the court in refusing to admit that instrument to be read in evidence. If it had been admitted, it would still have been necessary for the equitable plaintiffs to show, by proof, that they had some valid claim for which the bond was responsible.
A further objection to the admissibility of the bond, mentioned by the court and insisted upon by the defendants’ counsel, is, that it was not stamped, as required by the laws existing at its date. The acts alluded to, were passed foi' the purpose of raising revenue for the State. They did not design or profess to confer upon the citizens of the State, or others, any private benefits or rights, but operated to impose burdens upon them for State purposes* The Legislature, therefore, had full authority to remove such burdens at any time, by repealing those laws, and this was done by the act of 1856, ch. 352, secs. 4 and 5. The latter of these sections provides, “That all bills, notes or bonds that have been drawn previous to the
But for the decision below, it cannot be doubted that this repealing law would remove all objection to the bond for want of a stamp. Although the law, in this view of it, would be retroactive in its operation, still that could not prevent its having such an effect. It is true, as a general rule, that when the interpretation of a statute is doubtful, in respect to preexisting contracts, it will be construed as operating prospectively. But when the language of the statute clearly indicates an intention that it shall have a retroactive effect, it must be so applied. Baugher, et al., vs. Nelson, 9 Gill, 303. See, also, Reynolds vs. Furlong, 10 Md. Rep., 321.
After the decision in Atwell vs. Grant, 11 Md. Rep., 104, with reference to the act of 1856, we must reverse the decision in this case, so far as regards the refusal of the court to admit the bond in evidence because it was not stamped. And such a reversal we consider proper, although the stamp laws were not repealed until subsequently to the decision below.
In the case of United States vs. Schooner Peggy, 1 Cranch, 110, Ch. J. Marshall says: “It is, in the general, true that the province of an appellate court is only to enquire whether a judgment, when rendered, was erroneous or not. But if, subsequent to the judgment, and before the decision of the appellate court, a law intervenes, and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional, and of that no doubt in the present case has been expressed, I know of no court which can contest its obligation. It is true that in mere private cases between individuals, a court will, and ought to, struggle hard against a construction which will, by a retrospective operation, affect the rights of parties, but in great national concerns, where individual rights, acquired by war, are sacrificed for national purposes, the contract making the sacrifice ought always to receive a construction conforming to its manifest im
The principle thus announced requires a reversal of the, decision upon the question now under consideration. The act of 1856, in this connection, is merely an abandonment or surrender of the rights of the State. It does not impose upon the parties any obligations which the terms of the contract were not, in good faith, designed io create, and to insure the performance of. The law only permits the contract executed by the defendants to be used in evidence, which use had been prohibited for the purpose of securing the payment of a tax to the State, the failure to pay which has been released by the State, and the law releasing the tax declares that the contract shall be as valid in law as if the act creating the tax had never been passed.
In the previous case of the present term, to which reference has been made, it has been said there was no necessity to obtain authority from the State to institute that suit, and, of course, the same law will apply to this.
Judgment reversed and procedendo ordered.
