Mayor of Hagerstown v. Sehner

37 Md. 180, 1872 Md. LEXIS 118

Opinion

Miller, J.,

delivered the opinion of the Court:

This action was instituted by the appellee against the Mayor and Council of Hagerstown, a municipal corporation, on the 4th of May, 1867; to recover damages for injury to his hardware store situated within the corporate limits of said town, and for the destruction, injury and taking away of his goods and other personal property therein deposited, done by riotous and tumultuous assemblages of people on the nights of the 24th and 25th days of May, 1862. The suit, in "form an action on the case, was brought under the provisions of Article 82 of the Code, which is a codification of the Act of 1835, ch. 137. The constitutional validity of this law has been recognized by several decisions of this Court, and was in no wise assailed in this case. Its provisions are familiar and need not be here stated at length. It is only necessary to say’that it fixes no limit of time within which suits under it may he brought and prescribes no form of action for the injured party, but simply declares that “the full amount of the damage so done shall he recoverable by the sufferer or sufferers by suit at law against the county, town or city within whose jurisdiction such riot or tumult occurred,” “and that in any suit under this Article, the plaintiff may declare generally and give the special matter in evidence.”

The defendants besides non cid. pleaded that the cause of action did not accrue within three years before suit instituted. The plaintiff demurred to the plea of limitations and that demurrer was sustained. The verdict and judgment were in favor of the plaintiff' upon issue joined on the plea of “not guilty,” and this appeal by the defendants presents the single question, was the demurrer to the plea of limitations rightfully sustained by the Court below ?

Before this suit was instituted, the Legislature had passed the Act of 1867, eh. 282, amending the second section of Article 82 of the Code, so as to provide “that any cause of action that may have heretofore arisen under the first section of this Article shall be prosecuted within the period of five years from the time of such cause accruing, and not after; and all causes under the first section hereafter accruing, shall be prosecuted within the period of three years from the time of the accrual of the same.”

The suit having been brought more than three and less than five years after the cause of action accrued, the power of the Legislature to extend the time of limitations in such cases is the question to which most of the very able and elaborate arguments of counsel both oral and written have been addressed. The Court has encountered great difficulty in arriving at a satisfactory determination of this question, and it was in consequence of this difficulty that a re-argument was ordered at the last term. It has now become our duty notwithstanding the embarrassments which still surround it, to dispose of the case.

To determine the statute to be invalid, it must of course be assumed that the existing law of limitations in Article 57 of the Code, was applicable to actions like the present. It cannot be. said however, in view of the decisions in French vs. O’Neale, 2 H. & McH., 401, and Keedy vs. Newcomer, 2 Md., 19, that, that question is entirely free from douht.

The annulling of this Act must also assume that it is not within the scope of legislative power to pass a law which will have the effect to revive, as between private individuals, a cause of action which was completely barred by limitations before its passage. It must be conceded that the weight of authority elsewhere sustains this proposition. Cooley’s Cons. Lim., 369. But it is not clear that the Maryland decisions would allow of its adoption here. They have not yet gone to that extent, and what has been said by this Court in Baugher vs. Nelson, 9 Gill, 299, would present a .serious obstacle to that result, at least so far as actions arising ex contractu are concerned. But upon this point we express no opinion for assuming this position to be sound, and that laws thus operating upon causes of action between private individuals are inoperative and void, still we are of opinion after the best consideration we have been able to give the subject, that this Act is of such a character that its validity must he sustained.

Before considering what its true character is it may be well to recur briefly, to some of the well settled principles which govern Courts when dealing with grave questions of this kind. They are always regarded as the most important that can be submitted for adjudication. It is certainly an attribute of judicial tribunals in this Country, to annul an Act of the Legislature when it is manifest that in passing it, the Legislature have violated or abused the powers granted to them by the people. But this high power is to he exercised with the most guarded circumspection and care. An Act emanating from a co-ordinate branch of the. Government is pre sumed to be valid, and all agree that it is incumbent upon those who assail a Statute on the ground of its invalidity, to make out a clear case of legislative usurpation. 9 Gill, 304. The usual grounds of attack are alleged infringements of some of the express or necessarily implied inhibitions of the Constitution of the State or of the United States; but even with respect to such objections the Courts have uniformly declared they would not, in any doubtful case, pronounce an Act of the Legislature void. 15 Md., 389; 12 G. & J., 438. No objection of this kind is made to the present law.' But it is said that independent of such constitutional restrictions “ there is a fundamental principle of right and justice inherent in the nature and spirit of the social compact, the character and genius of our government, the causes from which they sprang and the purposes for which they were established, that rises above, and restrains, and sets bounds to the power of legislation, which the Legislature cannot pass without exceeding its rightful authority. It is that principle which protects the life, liberty and property of the citizen from violation in the unjust exercise of legislative power.” 9 G. & J., 408. Extreme cases of such legislative usurpations may, and sometimes do, occur where there would be no redress for the citizen, unless there resided in the judicial Department of the Government, the power to declare them void, and where no protection could be found, save in an honest and fearless exercise of that power by the Courts. Retrospective laws which have the effect to divest parties of vested and valuable rights, are generally stated as instances of such usurpation. But it is not an easy matter to determine what the vested rights thus protected are. No clear, definite or comprehensive rule on that subject is to be found. By the current of decisions in other States the right to plead the Statute of Limitations when it has once run and become a bar to a demand arising either ex contractu or ex delicto, is treated as a vested right, beyond the reach of retrospective-legislation. In Baugher vs. Nelson, it is said “when vested rights are spoken of by the Courts, as being guarded against legislative interference, they mean those rights to which a party may adhere, and upon which he may insist without violating any principle of sound morality. There can be no vested right to do wrong. In the nature of things there can be no vested-right to violate a moral duty, or to resist the performance of a moral obligation.” In that case a retrospective law which deprived a party of the right to avoid a contract of loan by pleading in bar of the action thereon, the Statute of usury, in force at the time the loan was made and the contract created, was sustained as valid and as interfering with no vested right. Whether there exists any well founded distinction between the right to a defence of this character, and the right to plead limitations is a question that need not now be discussed. Nor is it necessary for the purposes of this case to enter upon an enquiry into the nature and effect of limitation laws in their operation upon cases of contract and tort, whether in both they merely operate upon and affect the remedy, or in the latter, strike down and extinguish the right. Our judgment proceeds upon a different and distinct ground.

All the cases to which we have been referred, or our own researches have disclosed, are suits or actions between individuals, and all the legislation declared null and void on this ground, has been such as operated directly upon and divested rights vested in private persons or private corporations. Such is not the character or effect of the law . here assailed. It is not directed against individuals or private corporations. It applies to the counties, incorporated towns and cities of the State, and to all of"them. Between these public bodies and private citizens, there is a wide and substantial distinction, with respect to vested rights protected from legislative power. They are public corporations created by the Legislature for political purposes, with political powers, to be exercised for purposes connected with the public good, in the administration of civil government.

They are instruments of government subject at all times to the control of the Legislature with respect to their duration, powers, rights and property. It is of the essence of such a corporation, that the government has the sole right as trustee of the public interest, at its own good will and pleasure, to inspect, regulate, control and direct the corporation, its funds and franchises. These are the unquestioned general doctrines on this subject, sustained by all the authorities. 9 G. & J., 397, 401; 12 G. & J., 399; 15 Md., 462, 490 to 492. In the case of East Hartford vs. Hartford Bridge Co., 10 How., 534, the Supreme Court in speaking of Towns, declares them to be “mere organizations for public purposes, liable to have their public powers, rights and duties modified or abolished at any moment by the Legislature. They are incorporated for public, and not private objects. They are allowed to hold privileges or property only for public puposes. The members are not shareholders, nor joint partners in any corporate estate, which they can sell or devise to others, or which can be attached and levied on for their debts ; hence, generally, the doings between them and the Legislature are in the nature of legis - lation rather than compact, and therefore to he considered as not violated by subsequent legislative changes.”

indeed, in view of the doctrines thus broadly and distinctly announced, it would be difficult to conceive how such corporations could have conferred upon them or could acquire any vested rights not subject to legislative control. The case of State, use of Washington County vs. The Baltimore & Ohio Rail Road Company, 12 G. & J., 399, is a very instructive one, as to the power the' Legislature may exercise over the supposed rights of such corporations. The Legislature in an Act to promote internal improvements, had inserted a proviso, that if the railroad company did not locate their road so as to pass through Hagerstown, they should forfeit one million of dollars to the State, for the use of Washington County. The company failed to make the designated location, and suit ivas then brought against them in ■the name of the State, for the use of the county, to recover this sum. The Legislature then passed an Act releasing this forfeiture, and directing all suits against the company for its recovery, to be discontinued. The validity of- this latter Act was assailed, but was sustained by the Court. After announcing some of .the general doctrines above stated, in that part of their opinion where they treat the case as one of contract, and not of penalty, they say in this view of the case, “ it is material to’consider who are the contracting parties, and in what relation does the cestui que use stand to the legal plaintiff on the record? The contracting parties are the State on the one part, and the railroad company on the other. The consideration of the contract were the franchises and privileges derived by the company from the State, and the cestui que use is one of the countries of the State, claiming an interest incidentally in her political character and capacity, in virtue of one of the provisions contained in that contract. The State for reasons which she deemed sufficient, has thought proper, by an Act of her Legislature, to annul the contract and release the claim of the cestui que use, which this action has been instituted to enforce. In doing so, the Legislature have not transcended their constitutional limits. Washington County by which the claim is attempted to he enforced, is one of the public territorial divisions of the State, established for public purposes, connected with the administration of the government.- In that character she would receive the money as public property, to be used for public purposes only, and not for the use of her citizens in their private individual characters and capacities. In that relation they would have no immediate interest, and could assert no title. She is one of the instruments of the government, invested with a local jurisdiction, to aid in the administration of public affairs, and may be emphatically termed a part of the State itself. If then it be public, and not private property, it would seem to be completely at the disposal of the government, and the Act of 1840, was nothing more than a rightful exercise of legislative power.” This judgment was affirmed by the Supremo Court, in 3 How., 534, where it was held that by the repealing Act, the Legislature had dealt altogether with matters of public concern, and had interfered with no private right, because neither the County Commissioners nor the county, nor any one of its citizens, had acquired any separate or private interest in this money, which could be maintained in a Court of justice. These citations are made more especially for the purpose of clearly showing that no rights of individual citizens which the Courts can notice or protect, are invaded by such legislation, though their interests may be indirectly affected by it.

How then stands the case before us? The Legislature, by the Act of 1835, embodied in the Code, had made these public corporations liable to be sued by the injured party; for neglect on the part of the corporate or municipal authorities to use due and reasonable diligence in exerting the powers with which the law had clothed them for the prevention or suppression of riots or mobs, by which individual citizens might suffer loss or injury. The power of the Legislature to impose this liability has not been questioned. Hor does it appear to be an arbitrary, unreasonable or unqualified requirement, for it carefully provides that “no such liability shall be incurred, by any county, incorporated town or city, unless the authorities thereof shall have had good reason to believe that such riot or tumultuous assemblage was about to take place, or having taken place, shall have had notice of the same in time to prevent the injury or destruction either by its own police or with the aid of the citizens of such county, town or city, it being the intention' of this Article that no such liability shall devolve on such county, town or city, unless the authorities having notice have also the ability of themselves, or with their own citizens, to prevent the injury ; and in no case shall indemnity be received when it shall be satisfactorily proved that the civil authorities and citizens of such county, town or city, when called on by the civil authorities, have used alb reasonable diligence, and all the powers entrusted 'tp them, for the prevention or suppression of such riotous or tumultuous assemblages.” That law was in force when the Act of 1867 was passed, which provides that suits may be brought for causes of action that may heretofore have arisen under this existing law within five years from the time of their accrual and not after. The objection.is that this takes away a vested right to plead the pre-existing limitation of three years in bar of the suit. But by whom is this objection made? Not by any one to be personally bound by the judgment, or whose property can be levied on and seized in execution for its satisfaction or on which it can operate as a lien, but by a public municipal corporation created by the Legislature for public purposes, charged with the duty and invested with the power to protect the property of the citizen, and deriving its existence and discharging its functions at the will and by the direction of the supreme legislative power of the State. That is the party which asserts as residing in itself, in its public corporate capacity, this vested right beyond the control of its creating and governing power. In our judgment no such vested right exists in the appellants, and were it not for the rights and interests of the tax-paying inhabitants of the municipality lying behind, and which may be indirectly but ultimately affected by this law, there would be no difficulty in the case. But after the most careful consideration of that question, we are of opinion the law is not invalid because its ultimate effect may be to subject them to increased taxation. That might bo a strong argument when addressed to the Legislature against the wisdom and policy of such legislation, but with that the Courts have no concern. They can pass no effective judgment upon that question. Their province is to determine the naked question of legislative power, and upon this alone must the law stand or fall. The tax-payers are not parties to this suit; their property is not bound by the judgment and cannot be taken in execution for its satisfaction. They can be reached and their interests affected only by and through an exercise of the taxing power conferred upon the corporation, which could have been exerted to the same extent for the prevention as for the satisfaction of the injury complained of. This indirect and'' contingent interest or responsibility does not amount to a vested right which the Courts can recognize and protect agaipst a positive enactment of the Legislature, lawfully imposed upon the corporate body whose constituents they are. In our judgment the power of the Legislature to impose the liability in the first instance carries with it the power to direct and determine the time and manner in which it shall be enforced. A different state of case would be presented if the Legislature had in the first instance imposed a direct tax, or commanded these corporations to impose one, upon the people of any particular town, county or city of the State, in order to make compensation for past injuries of this character. The Legislative records of this and other States contain statutes which were intended to, and in effect did, impose or enforce taxation of this description; but it does not appear that any question as to their validity has ever been raised and determined by the. Courts, and it is not our duty now to express any opinion upon that question. Our duty in this case is simply to pass upon the validity of the law before us, and for the reasons already stated, we determine it to be valid; we cannot pronounce it an instance of legislative usurpation of power. It is to be observed the clause of the statute we have considered, is so clearly retrospective in its terms as not to admit of any construction to the contrary. But that fact alone is no objection to’ its validity. There is no provision in the Declaration of Rights or Constitution of this State, or of the United States, prohibiting the passage of retrospective laws affecting civil causes. The decision by Judge Story in 2 Gallison, 139, is based expressly upon a provision of the Bill of Rights of New Hampshire, denouncing retrospective laws “either for the decision of civil causes or the punishment of offences.” The corresponding provision in our Declaration of Rights is by its terms confined to retrospective criminal or ex post facto laws, and this has been regarded as a. recognition of the right of the Legislature to pass retrospective laws so far as they relate to civil cases and contracts. 9 Gill, 306.

(Decided 20th December, 1872.)

Judgment affirmed.