Simmons v. Inhabitants of Hanover

40 Mass. 188

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1839
• Status: Published

Opinion

Wilde J.

delivered the opinion of the Court. At the argument of this cause on the demurrer to the bill, two questions were submitted to the consideration of the Court; one of which is a question of jurisdiction, and the other is, whether upon the facts stated in the bill the plaintiffs are entitled to the relief prayed for.

As to the first question, it has been argued by the defendants’ counsel, that at the time of the filing of the bill, this Court had no jurisdiction, unless the deposit of the town’s portion of the surplus revenue of the United States can be considered as a trust for the benefit of the plaintiffs, and that it cannot be so considered ; that no such trust is stated in the bill; and that no such trust was created by the act of the legislature, under which the deposit was made, but that it was a mere loan to the town. In one aspect of the cause, these grounds of defence would require great consideration ; but according to the view we have taken of the case, the question, whether the Court had jurisdiction at the time.of filing the bill, becomes immaterial, and we have not considered it, because, by the St. 1839, c. 60, full jurisdiction is given to the Court in this and all similar cases, and all the proceedings of the Court previous to the passage of the law, are confirmed. By that statute it is enacted, that when any city or town shall have received any portion of the surplus revenue of the United States under the St. 1837, c. 85, the Supreme Judicial Court shall have power, on the suit or petition of any inhabitant of such city or town, to hear and determine in equity all cases of alleged violations of the provisions of the 4th section of the statute of 1837 ; and that no order or decree of such Court or of any judge thereof, heretofore made in such case, shall be discharged and invalidated on account of want of jurisdiction in the Court or judge, but that all such orders and decrees are thereby confirmed.

If this is a constitutional and valid act of the legislature, it is very clear that the jurisdiction of the Court cannot be questioned. The objection to it is, that the last clause confirming the proceedings of the Court previous to the passage of the statute, is not valid and obligatory.

Upon the general question, whether any retrospective laws affecting vested rights are valid, there have been conflicting opinions. In the case of Calder v. Bull, 3 Dallas, 386, which is a leading case, Judge Iredell expresses a decided opinen, that the legislative power cannot be restrained except by some express provision in the constitution; and that retrospective laws not thus restrained, are clearly valid. Judge C/iase was of a different opinion, but he admits, that retrospective laws may, in some cases, be proper and necessary. In the case of Goshen v. Stonington, 4 Connect. R. 210, Hosmer C. J., remarking upon these and other conflicting opinions, says: “ With those judges who assert the omnipotence of the legislature in all cases where the constitution has not interposed an explicit restraint, I cannot agree. Should there exist, what I know is an incredible supposition, a case of the direct infraction of vested rights, too palpable to be questioned, and too unjust to admit of vindication, I could not avoid considering it a violation of the social compact, and within the control of the judiciary “on the other hand, I cannot harmonize with those who deny the power of the legislature to make laws, in any case, which, with entire justice, operate on antecedent legal rights. A retrospective law may be just and reasonable ; and the right of the legislature to enact one of this description, I am not speculatist enough to question.”

In support of his opinion, Chief Justice Hosmer refers to the laws of this Commonwealth and the decisions of this Court.

In Holbrook v. Phinney, 4 Mass. R. 566, it was decided, that the St. 1785, c. 6, abolishing joint tenancies, was valid and binding in that case, although enacted subsequently to the execution of the deed creating the joint tenancy there in question. This statute, says Parsons C. J., has a retrospective effect, and comprehends this conveyance ; and there seems to be no constitutional objection to the power of the legislature to alter a tenure by substituting another tenure more beneficial to all the tenants.

But the conflicting opinions in these and many other cases, as to retrospective laws, do not affect the validity of the law in question. This is a remedial law, and unquestionably the legislature have the right to pass all just and reasonable remedial laws for the general welfare, and to enforce existing obligations, although they may incidentally operate upon existing rights. Sq they may take away one remedy and substitute another, although such change of remedy may affect the interests of individuals. 1 Kent’s Comm. 456. So the legislature have the right to confirm the proceedings of towns and other corporations, which have been void for some informality, and of reviving terms of court which have failed from accident. Walter v. Bacon, 8 Mass. R. 468. So in Tate v. Stooltzfoos, 16 Serg. & Rawle, 35, it was held, that a statute confirming a sale of lands defectively acknowledged, was a valid law. And in Underwood v. Lilly, 10 Serg. & Rawle, 97, it was decided, that the mis-entry of a judgment was cured by a subsequent statute, although a writ of error had issued before the passing of the act.

The St. 1817, c. 87, giving this Court jurisdiction in equity to enforce the execution of trusts, had a retrospective operation upon existing trusts and contracts, and created new responsibilities, but being a beneficial and remedial law, its validity has never been questioned. So the statute renewing the charter of the Essex bank, though not accepted by the corporation, and though it subjected them to great responsibilities, was held a valid law, in the case, of Foster v. Essex Bank, 16 Mass. R. 245. This case was ably argued and deliberately considered by the Court; and it was held, that the statute violated no rights of the corporation, for they had no right to withhold their just debts from their creditors ; and that a remedial statute intended to enforce rights, and not to violate them, was clearly a valid law.

According to the principles laid down in these cases, it is very clear, that the statute in question is a valid and binding law. It is a remedial statute, solely intended to prevent the violation of a previous law, and to enforce the obligation arising therefrom. It cannot operate so as to violate the defendants’ rights ; for its object is to compel them to the performance of their contract with the government. It has been said, that the defendants had a vested right to recover costs in this suit, which was taken away by the statute. But it is manifest, that a party has not a vested right in costs before judgment, in any case, and, in the present case, costs depend on the discretion of the Court.

We can have no doubt, therefore, that we have jurisdiction in this case ; and the only remaining question is, whether, upon the facts alleged in the bill, the plaintiffs are entitled to the relief prayed for. The bill alleges, that, on the 3d day of April, 1837, the defendants, at a legal meeting of the inhabitants, agreed to receive the proportion of the surplus revenue which should be coming to them under the act of 1837, c. 85, and authorized their treasurer to receive the same from the treasurer of the Commonwealth ; and that afterwards they received, by their treasurer, several sums of money, being their proportion of the 1st, 2d and 3d instalments of such surplus revenue.

The bill further alleges, that afterwards, on the 2d day of April 1838, at a legal town meeting of the town of Hanover, a vote was passed, by which it was provided, that such surplus should be lent equally to each and every inhabitant of the town ; that afterwards, at another legal town meeting of the town, three agents were chosen to recall and receive the surplus money from persons to whom it had been before lent on good security, and such agents were authorized to take the notes of the individuals, who were entitled to receive the money, according to the former vote of the town ; and that, on motion made at the same meeting to require good and sufficient bondsmen on each and every note given, it was voted that the town would not require bondsmen on notes given for such money.

That this vote for the distribution of the money, if it had been carried into effect, would have been a direct violation or palpable evasion of the terms of limitation of the 4th section of the statute of 1837, cannot, we think, be doubted. That section provided, that the town should apply the money so deposited with them, or the interest upon the same, to those public objects of expenditure for which they might lawfully raise and appropriate money, and to no other purpose. It was argued, that, by the Revised Stat. c. 15, § 11, towns are authorized to make any orders for the disposal or use of their corporate property, which they may judge necessary for the interest of the inhabitants •, and that the town had the same power of disposal of the money deposited with them by the government. It is admitted, that this power of disposal is not consistent with the express words of the 4th section of the statute of 1837, but it was insisted, that the words “ raise and appropriate ” might be construed to mean “raise or appropriate.” But there is no reason why the language of the statute should be thus construed ; on the contrary, the substitution of “or” for “and,” would not accord with the evident meaning of the statute. And if such were the words of the statute, it would not vary its construction ; for the town were to apply the money deposited with them to public objects of expenditure, and to no other purpose ; and most certainly the distribution of the money among the inhabitants of the town for their own private use, would not hie applying it to a public object of expenditure.

Then it was argued, that the town had the undoubted right to lend the money, and that the distribution of it among the inhabitants, was by way of loans. It is true, that it is so denominated in the vote of the town; but, as to a portion of the money, it lacks one of the essential qualities of a loan. It was to be distributed equally to each and every inhabitant of the town, including paupers, if there were any, and all minors of whatever age, and all married women ; and the town refused to take any security except the notes of the persons respectively to whom the money should be paid. The notes of married women and minors would not be obligatory ; and therefore the money to be paid to them, would amount to a gift, although denominated a loan. The money thus withdrawn from the treasury could not, by law, be recovered, and consequently could not be appropriated according to the directions of the statute. That such a misapplication of the money would be a violation of the 4th section of the statute, by virtue of which , the money was received, seems to us exceedingly clear.

Another objection to the bill, upon which considerable stress has been laid, was founded on a supposed defect of the law previous to the statute of 1839. It was urged, that no trust was created by the deposit of the money with the town ; or, if any, that it was a public trust for the Commonwealth and not for the individual inhabitants, and, consequently, that the bill discloses no equitable interest in the plaintiffs which entitles them to maintain their suit. It has been already remarked, that we consider it immaterial, whether the defendants held the money in trust for the plaintiffs or not, or whether the Court had jurisdiction or not, previously to the statute of 1839, since, by that statute, jurisdiction is expressly given and all former proceedings are confirmed. And, as to the objection, that the bill discloses no equitable interest in the plaintiffs, the answer is, that the plaintiffs aver in their bill, that they are inhabitants of the town of Hanover, and men of property, and are liable to be taxed in the town according to law, and that such a lending or distribution of the- surplus money, as is contemplated by such votes of the town, would be a direct injury to the plaintiffs. It is immaterial whether this liability to taxation and consequent injury, be contingent or certain. In either case, the plaintiffs have an equitable interest in the deposit and its use and application. But we do not hold it necessary for the plaintiffs to show, that they have any interest in the deposit, or its application. For by the statute of 1839; any inhabitant of the town of Hanover may maintain a suit in equity, by bill or petition, in order to restrain the town from the violation of any of the provisions of the 4th section of the statute of 1837.

The object of the statute of 1839 was, to prevent the violation of the former statute, and if its language were doubtful, it should be so construed as to enlarge rather than to limit the means of enforcing it. The language of the statute, however, is not doubtful. No qualification of interest is required to authorize any inhabitant to maintain a suit; and we can perceive no good reason why any such qualification should be required. This point is not material in the present case, but may be of importance in other suits. Whether the plaintiffs are bound to show iha.: the)- have an interest in the application of the deposit or not, they are clearly entitled to maintain their suit, unless the defendants cat disprove the facts alleged in the bill.

Demurrer overruled