State v. Squires

Jan 27, 1868
Reporters:
Before:
Cole
Cole, J.

1. Constitutional law: special laws: curative acts. — But few cases in this court have received more careful and elaborate attention at the hands of counsel than this. “We were favored with able ora^ arguments at bar, and these have been followed, by extended printed and written arguments evidencing the most thorough research and learning upon the points discussed. The attention bestowed upon the case by counsel, is equal to the magnitude of,the questions involved, and far exceeds the importance of the interests to the parties now before the court.

It is claimed by appellant’s counsel that under our Constitution (art. 3, § 30), which provides that the general assembly shall not pass local or special laws, etc., it would not be competent for the legislature to pass a law incorporating the “independent school district of Epworth.” This proposition cannot be successfully controverted. It finds an abundant support in the previous decisions of this court. Ex parte Pritz, 9 Iowa, 30; Davis & Brothers v. Woolnough, id. 107; Baker & Griffin v. Steamboat Milwaukie, 14 Iowa, 214; McGregor v. Bayliss, 19 id. 47. In our view, however, the act set up in the defendant’s answer is not, in any just sense, a law creating a corporation, but is, both in law and fact, what its title purports, a curative act legalizing the defective organization of an independent school district.

*344It is next claimed that the curative act relied upon in the defendant’s answer, and to which the demurrer is aimed, gives to the “ independent school district of Epworth” its only legal vitality; and since the legislature could not do this by a direct creative act, it cannot do it indirectly, under the guise of a curative act.

It might well be conceded, for the purposes of this case, if not wholly, that the legislature cannot do indirectly, wdiat it has not the power to do directly. But it cannot be successfully controverted that the legislature has the power to create, or authorize the creation of independent school districts. This power, however, must be exercised by a general law of uniform operation, and it has been so exercised. See Laws of 1862, ch. 172. The power of the legislature, then, to create the independent school district of Epworth, must be conceded. Having the power to do it directly, it would follow that it might do it indirectly, unless the manner in which it was sought to be done is inhibited by the Constitution.

And here, again, it.is claimed that the specical law is inhibited by article 3, section 30 of the Constitution, which forbids the general assembly to pass any local or special laws in certain enumerated cases, “ and in all other cases where a general law can be made applicable.” That this is a local law cannot well be questioned. Is it a case where a general law can be made applicable ?

Certain irregularities in the manner of the organization of the independent school district of Epworth, are alleged to have occurred. No other such precise or analogous case is alleged or suggested as existing anywhere else in the State. No legal presumption arises that there is one. A general law, therefore, which would be suited to the necessities of the independent school district of Epworth, could have no other or greater operation than the act in question; and if it could or would *345have no other effect, then no advantage could be derived, nor any evil avoided, by making a general law instead of the law which was enacted. This law, then, is not within the evil which the Constitution sought to provide against, nor would the enactment of a general law therein afford any remedy for, or relief from, that evil. See Town of McGregor v. Bayliss, 19 Iowa, 43. A general law, therefore, would not be applicable under the meaning of that term, as used in the Constitution. The act is not in conflict with article 3, section 30, or article 1, section 6.

3.__title of acts. But a further constitutional objection to the law in question is made, for that it embraces more than one subject and the same is not expressed in its title. The act is entitled, “An act to legalize the organization of the independent school district of Epworth, county of Dubuque, Iowa.” The act contains a preamble and three sections; the first section legalizes the organization of the district, the second legalizes the acts of the de facto officers of the district, and the third provides for the taking effect of the act by publication. Our Constitution (art. 3, § 29) provides, that “ every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title.” The subject expressed in the title, is the legalizing of the organization of the district. Properly connected therewith is the legalizing of the acts of the officers of such district, since the full object, as expressed in the title, could not be accomplished without the provisions of the second section. A good illustration of this idea may be found in our “Act in relation to revenue” (Bey. of 1860, ch. 45), which not only provides for the assessment, levy and collection of taxes, but also for the sale of the land, redemption from sale, the conveyance by the treasurer in default of redemption, the recording *346of such conveyances, and a statute of limitations in relation to the title, etc. All these are properly connected with revenue, as they aid in effectuating the purpose and subject of the enactment, as expressed in the title. The State ex rel. v. The County Judge, etc., 2 Iowa, 280; Morford v. Unger, 8 id. 82; Davis & Bro. v. Woolnough, 9 id. 104.

4. — subject not embraced in the title. But the Constitution also provides, in the same section, that “ if any subject shall be embraced in an act which shall not be expressed in the title, such act „ 1 , shall be void only as to so much thereof as shall not be expressed in the title.” So much of the act as is contained in .the first section, and the subject of which is clearly expressed in the title, would, beyond a question, be valid, as against any objection founded on this provision of the Constitution; and this section being valid, would constitute a bar to plaintiff’s action.

5.____ ex post facto and retrospective laws. Another ground of demurrer is, that “ said act is ex post faeto and retrospective, and’ cannot legalize said alleged independent school district organization, or the acts of its alleged officers, the defects whereof existed Aprii 9, 1866.” It is upon this ground that the act is most vigorously assailed. We may here remark, that it is not, in any sense, and cannot be, ex post faeto. That term applies only to criminal laws; such laws as make acts, innocent when done, criminal; or, if criminal when done, aggravate the crime, or increase the punishment, or reduce the measure of proof. Every ex post faeto law is necessarily retrospective ; but the converse is not true. Ex post facto laws are prohibited by the United States Constitution (art. 1, §§ 9 and 10), but retrospective laws are not prohibited by the federal or our State Constitution. Calder v. Bull, 3 Dallas, 386; Dash v. Vankleeck, 7 Johns. 477; Cooley’s Const. Lim. 264; Sedg. on Stat. & Const. Law. 191.

*3476.- retrospective laws not unconstitutional. Retrospective laws, as distinguished from ex post facto laws, are not in conflict with the United States Constitution, nor are they in conflict with our State Constitution. The Constitutions of the States of New Hampshire, Tennessee and Texas, are understood to prohibit the legislature from passing retrospective laws. Woart v. Winnick, 3 N. H. 481; Clark v. Clark, 10 id. 386; Rich v. Flanders, 39 N. H. 304; DeCordova v. Galveston, 4 Texas, 470; Fisher’s Negroes v. Dobbs, 6 Yerg. 119. See the limitation on the power in Ohio, set forth in Gosham v. Parcell, 11 Ohio St. 64.

7.— legislative power to pass. In the absence of any constitutional inhibition, it has been uniformly held, that the legislature has the power to pass retrospective or retroactive laws. Whenever such laws interfere with vested rights, they are (generally) held void or inoperative for that reason, and not because they are retrospective. But the power to j>ass retrospective laws is liable to abuse, and such laws, more than others, are often found to operate oppressively; and for these, and perhaps other reasons, it is a well established rule of the courts to construe all statutes as having only a prospective operation, unless the legislature expressly declare, or otherwise show a clear intent, that it shall have a retroactive effect. “Without analyzing or citing the numerous decisions, both State and federal, illustrating and vindicating these principles, we content ourselves with a statement of them, and a reference to the cases based thereon decided by this court. Davis v. O’Farrell, 4 G. Greene, 168; McMillen et al. v. Boyles Co. Judge, 6 Iowa, 304, and briefs of counsel, and authorities therein cited. Phares v. Walters, id. 106; Montgomery v. Chadwick, 7 id. 114; Brinton v. Seevers, 12 id. 389; Reynolds v. Kingsbury, 15 id. 238; Jones v. Berkshire, id. 248; Bartruff v. Remey, id. 259; Newman v. Samuels, 17 id. 528, opinion of Dil*348lon, J., on pp. 552, 553; Boardman v. Beckwith, 18 id. 292; Decorah v. Bullis, 25 id. 12.

8._curative act. We have already referred to the point, that, in order to the rightful exercise of the legislative power to cure a defective proceeding, the legislature must have possessed the power to authorize the result by prior legislative enactment. But it is not necessary that it might have accomplished the result in the precise manner it has adopted to cure the defect. In the case at bar, the legislature might, by a general law providing-for the incorporation of independent school districts, have authorized their organization in districts having less than three hundred inhabitants, and upon less than ten days’ notice. Having this power, it may rightfully legalize or cure the organization which was defective only because of a failure to comply with the particular requirements which it was competent for the legislature to have waived entirely in the original law. It was a matter of discretion with the legislature to require the performance of these precedént conditions; hence, it may waive a failure to perform them. Nor is the power of the legislature to cure defective or irregular proceedings limited by the fact, that, but for such curative act, the defective proceeding would be wholly invalid or inoperative. Wilkinson v. Leland, 2 Peters. 661; Satterlee v. Matthewson, id. 412; Watson v. Mercer, 8 id.; Cowgill v. Long, 15 Ill. 203; Menges v. Wertman, 1 Penn. St. 218. Nor is it material that a cause was pending involving the question of the validity of the proceeding sought to be cured, when the act curing it was passed. Cowgill v. Long, supra; Underwood v. Lilly, 10 Serg. & Rawle, 97; Taggart v. McGinn,, 14 Penn. St. 155; Hepburn v. Curts, 8 Watts, 300; Bradder v. Brownfield, 2 Watts & Serg. 271.

It cannot be claimed that the act in controversy divests *349or interferes with vested rights, or that it contravenes sound public policy. But, on the contrary, it is reasonable, and conducive to the public good, in quieting litigation and otherwise, and as it does not conflict with the Constitution or violate any principle of justice, it should ’ be upheld.

Affirmed.