author: Mr. Justice Faieciiild

text:
    Union County vs. Cowser.
    A collector is entitled to commissions only when lie collects the taxes; and i'f- he fails to take the tax book, and it is delivered to his successor, he has no claim for commission on the taxes collected ‘by his successor.

      Appeal from Union Ci/rcuit Court.

    Hon. Len B. Green, Circuit Judge.
    Caeleton, for the appellant.
   Mr. Justice Faieciiild

delivered the opihion of the court.

At the August election of 1858, Robert Sewell was elected sheriff of Union county, as successor to Cowser, the former sheriff. In October, 1858, the latter gave his receipt for the tax book of that year, but did not remove it from the clerk’s office, and did not collect any of the taxes. In January, 1859, Sewell having in the meantime qualified as sheriff, was also required to give bond as collector of the taxes for 1858, and the tax book was given to him by the clerk under the direction of the county court. Sowell collected the taxes and made his settlement with the county court, whereupon Cowser filed an account against Union county, claiming that ho was entitled to commissions on the amount collected by Sewell as if he had collected it himself, he being the lawful collector of the taxes for 1858. The claim of Cowser was disallowed by the county court: he appealed to the circuit court, which reversed the judgment of the county court, tried the case knew, and rendered a judgment for Cowser. The county appealed to this court.

The law gives commissions only for the collection of taxes. Cowser did not collect the taxes of 1858, and he had no demand against the county as pay for services he did not perform. Whether Cowser or Sewell was entitled to the tax book of 1858, and, consequent upon the actual collection of the taxes, which of them should have received the pay allowed by the law for such collection, are not questions before this court.

The county court properly rejected the claim of Cowser: the circuit court improperly set aside its rejection, and the judgment of the circuit court is reversed, and the cause is remanded, with directions to affirm the judgment of the county court.


source: Caselaw Access Project

author: Mr. Justioe FaiRoiiild

license: Public Domain

text:
    Stroud vs. Garrison.
    Tho defendant, assisted by the plaintiff and others, apprehended runaway slaves, and the defendant afterwards received the reward for their capture: the plaintiff sued for a proportionate part of the reward. Held, that tho plaintiff was not entitled to recover, as there was no fact in tho casó from which it might be Í inferred that the defendant ever promised to share the reward with the plaintiff.

      Error to Drew Circuit Court.

    Hon. Join* C. Murray Circuit Judge.
    IIaeeisoN, for the plaintiff.
   Mr. Justioe FaiRoiiild

delivered the opinion of the court.

Smith, a wagoner, told Lephew that some runaway negroes passed his camp the evening before. Lephew told the defendant, a negro catcher; and he, with another person, started in pursuit of the negroes. Lephew and the plaintiff also started about the same time, on tho same business, and the two parties, of two persons each, met near the place where Smith saw the negroes. The pursuing party, then consisting of four persons, was soon upon track of the negroes, and their whole number, five, were soon caught by the joint efforts of .all the negroes engaged in the pursuit, were taken to Monticollo and were delivered by the defendant to the jailer of Drew county. The negroes were after-wards taken from jail by their owner, and the reward for their apprehension was paid to the defendant. This suit was brought to recover one-fourth of the reward, to which the plaintiff claims to be entitled from his participation in the capture.

Although the plaintiff assisted in taking the negroes, they were found by instrumentalities belonging to the defendant, and although the evidence induces the conclusion that the defendant alone would have had difficulty in securing all the negroes when overtaken, yet the defendant had with him another person, and whether with this help the defendant could have apprehended all of the negroes, without the assistance of the plaintiff and of Lephew, we are not informed by the evidence.

Upon trial of the case in the circuit court of Drew county, the court was asked to instruct the jury that the legal result from the foregoing facts was to make the defendant liable to the plaintiff for one-fourth of the reward received for the apprehension and delivery of the negroes. This the court refused, and instructed the jury that if the parties to the suit were not in partnership in catching the negroes, and had not made any agreement about sharing the reward therefor, that they must find for the defendant. The jury found for the defendant, and the plaintiff prosecuted his writ of error.

There is no fact in the case from which to draw an inference that the defendant ever promised to share, or thought of sharing, with the plaintiff, the reward that should bo received for the apprehension of the negroes. lie delivered them to the jailer, made the affidavit concerning their capture, claimed and received the reward himself. He never bound himself to pay any part of the reward to the plaintiff, nor would the law raise an implied obligation to do so from the facts.

Although the charge of the judge of the circuit court is not correct in its reference to a partnership between the parties, either in its applicability to the case, or in law if applicable, the plaintiff was not thereby injured, and the instruction desired by the plaintiff was properly refused.

The judgment is affirmed.


author: Mr. Justice Fairohild

text:
    Patterson vs. Thompson.
    The right of a parent to maintain an action for the seduction of his daughter, being founded upon loss of service and consequent expense, the action can be maintained only where the daughter, at the time of seduction, is under ago and bears to the parent the relation of servant, or, if of age, resides in the parent’s family, doing acts of service: and also, where loss of service is sustained or expense incurred by the parent.
    In this case, the daughter being over twenty-ono years of age, and not a member of her father’s family at the time of seduction, and neither loss of service nor espouse proven: Held, that ho could not maintain the action.
    The period of limitation in actions for seduction, is one year from the time the cause of action accrued.

      Quere. Will a verdict, in a seduction case, be set aside for exqessivo damages? or should punishment of the defendant enter into the finding?

      Appeal from Ghieot Oireuit Court.

    Hon. Josiah Gould, Special Judge.
    Garland & Randolph- for appellant.
    Yell and Bell & Carlton, for appellee.
   Mr. Justice Fairohild

delivered the opinion of the court.

The record of this suit, which is an action on the case by the appellee for the debauch and getting with child of his daughter, presents for consideration these propositions: Whether the action was barred by limitation; whether the plaintiff had any right of action on account of the intercourse between the defendant and the daughter of the plaintiff; • and whether the verdict should not have been set aside for its allowance of excessive damages. All of these propositions, except a branch of the- first, which is presented by the plea of limitations of one year, are to be determined upon the evidence, and the legal principles which the evidence makes applicable to the propositions,

It does not seem to be contested, and if it were, the evidence makes it undeniable, that sexual intercourse was had between the defendant and a daughter of the plaintiff; and the latter deposes that it resulted in her pregnancy, and in the birth of a child. This, with the concurrence of other facts, would require a verdict for the plaintiff for some amount. And unless the assessment of damages be so great as to be disproportioned to the injury, the finding of the jury must stand as a proper assessment of damages, at least as one made by the proper tribunal, and that cannot be reviewed by this court. And perhaps a notice of some cases in which courts have declined to set aside verdicts for giving excessive damages may lead to the conclusion that the immunity of a verdict from interference by a court, upon this ground, ought to be expressed in stronger terms.

In the only case in which this court is remembered to have expressed its opinion on this subject, the jury had rendered a verdict of one hundred dollars in damages, for taking hogs that were not proved to be worth over twenty-five dollars. In reply to the point made for the plaintiffs in error, that the damages were excessive, the court said: Nor are we disposed to set aside the verdict on the ground of excessive damages * * * * The trespass in this case was rather a flagrant one. The plaintiff’s premises were invaded, his close broken, entered, his hogs driven off, killed and converted; and on the trial, the defendants proved . no color of title to the property. True, the value of the hogs was proven not to exceed twenty-five dollars, but the jury were not' confined, exclusively, to the Avalué of the hogs, in determining the amount of damages to be awarded to the plaintiff — they had the right to take into consideration the invasion of the plaintiff’s premises, the vexation to his feelings, the inconvenience to him arising from the deprivation of his property, as well as its value, and then to add something by way of smart money, or exemplary damages. Under all the circumstances of this case, we cannot conclude that the verdict for one hundred dollars was so exorbitant, as to indicate corruption or bad. faith on the part of the jury, and shall not therefore disturb it.”' Clark vs. Bales., 15 Ark., 458.

In an action for a libel, wherein fifteen huudred dollars damages had been found, when it was contended the plaintiff was entitled to nominal damages only, the supreme court of New York remarked: “The question of damages was within the proper and peculiar province of the jury. It rested in their sound discretion, under all the circumstances of the case, and unless the damages are so outrageous as to strike every one with the enormity and injustice of them, and so as to induce the court to believe that the jury must have acted from prejudice, partiality, or corruption, we cannot, consistently with the precedents, interfere with the verdict.” After citing several old English cases, the court proceeds: “ The law has not laid down what shall be the measure of damages in actions of tort. The measure is vague and uncertain, depending upon a vast variety of causes, facts arid circumstances, as the state, degree, quality, trade, or profession of the party injured, as well as of the party who did the injury. * * * The damages, therefore, must be so excessive as to strike mankind, at first blush, as being, beyond all measure, unreasonable and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, prejudice, or corruption. In short, the damages must be flagrantly outrageous and extravagant, or the court cannot undertake to draw the line : for they have no standard by which to ascertain the excess.” Coleman vs. Southwick, 9 John. Rep., 51-52.

Nine hundred and twenty dollars had been rendered as damages in a seduction case, which was claimed to be so unreasonable as to require the interference of the court, but SutheelaND, J., responded in this way: “ Nor do I think we are authorized to interfere on the ground of the excessiveness of the damages, although they appear to us much larger than they should have been. There were no aggravating circumstances in the case; no acts of seduction were used, for none were necessary. The character of the daughter had long been considered loose and abandoned. There were no wounded feelings, or blasted reputation to aggravate the moral impropriety of the defendant’s conduct, or to call for exemplary damages. We should have been better satisfied with a verdict barely sufficient to remunerate the plaintiff for her actual loss-. But the damages are not so flagrantly outrageous and extravagant as necessarily to evince intemperance, passion, partiality, or corruption on the part of the jury; and where that is not the case, the court will not undertake to set their judgment on a question of damages, in an action of this nature, in opposition to the judgment of the jury. It is the judgment of the jury, and not of the court, which is to determine the damages in actions for personal injuries. Sargent vs. Denniston, 5 Cow., 118.

It should be remarked of this case, that the court did set aside the verdict, for the reasons that' the jury did not intend to give any thing for the alleged seduction, and that the verdict was made up of an allowance of twenty dollars for the plaintiff ’s loss of service of the daughter, during confinement, and of nine hundred dollars, as the sum estimated by the jury necessary to support the child till it should become of an age to support itself.

In another action for seduction, in which the verdict was for six hundred and fifty dollars, the same court answered, to the same suggestion, that, The damages appear to be high, but not so excessive as to indicate passion, partiality, prejudice, or corruption, on the part of the jury.” Knight vs. Wilcox, 18 Barb., 221.

And so the court of appeals of Kentucky, in a case in which eighteen hundred dollars were awarded against the defendant for the seduction of the plaintiff’s daughter, held that, when the defendant had admitted the cause of action by default, and was shown upon the inquisition of damages, to be worth eighteen thousand dollars, the verdict was not so flagrantly excessive as to authorize a new trial. Applegate vs. Ruble, 2 A. K. M., 130.

Duberly vs. Gunning, 4 T. R., 651, is often referred to as the strongest case on record in which the damages were exemplary, but were allowed to stand, although for the sum of five thousand pounds, when the plaintiff in the action for criminal conversation, had so acted as to induce the court to believe that he had consented to the prostitution of his wife. Bulles, J., thought that the verdict should have been for the defendant, and wished to have it set aside, and a new trial granted; bnt Lord EjeNYON^ although he admitted that nominal damages would have satisfied him, and that those given were much larger than they should have been, said that he had never known an instance in which a new trial had been granted in such a case on account of excessive damages, and that he had not courage enough to make a precé-dent.

In Lee vs. Hodges, 13 Grattan, 726, the jury awarded damages in the sum of four thousand, five hundred dollars, against the defendant, in an action for seduction,'which the defendant moved to set aside. The court, where the case was tried, refused to grant the motion upon a release by the plaintiff in open court of fifteen hundred dollars of the damages. No question was made on this point in the court of appeals, but the opinion of the court refers to the amount of the verdict to infer that the jury considered the case to be ol an aggravated character.

Upon a question of this sort in the supreme court of Georgia, LumpKIN, J., used this emphatic language : “ Never, so help me God, while I have the honor to occupy a seat on this bench, will I consent to control the jury, in the amount of compensation which they may see fit to render a father for the dishonor and disgrace thus cast upon his family; for this atrocious invasion of his household peace.”

These are but a few, are merely specimens, of the many cases, in which courts have refused to disturb verdicts that have been complained of for being unreasonable, unjust, or outrageous, in their assessments of damages. It is apparent, from a review of the cases under the head of seduction, that the determination of the plea of not guilty, affords but little clue from .which to conjecture the amount of damages to which he is to be subjected. The action is sustainable by a father solely because he is supposed to be injured by tbe loss of the labor which his debauched daughter becomes unable to perform, and by the expenses which her consequent sickness entails upon him; but damages are given to him regardless of the fact that the services of the daughter are of unfrequent occurrence and of trifling value, and upon the express grounds that his feelings as a father have been outraged, that his family has been disgraced, that his child, from being the ornament of her circle, and the pride of his life, has become, by the defendant’s wrong, the shame of his old age, and an outcast from decent associations. In the language of one of the instructions to the jury in this case, submitted on the part of the plaintiff, he goes into court as a master, but goes before the jury as a parent. He must then go out of court with the. price which a jury puts upon the chastity of his daughter, with their estimate of what the destruction of the honor of his family, and of his own peace of mind, shall be accounted at in good and lawful money.' And if the heart of a parent is made to revolt at the paltry sum by which innocence and happiness are balanced, or to lament that a heavy verdict cannot compensate the loss of character, of respectability, and of fatherly delight, the result is the inevitable consequence of the legal fiction that transforms his case from a statement of slight pecuniary loss to an appeal for satisfaction for the violation of female virtue, and from its submission to a tribunal that has ño rules, or limits, or measures, by which to make the required response.

Notwithstanding the evident want of logical principle that marks the practical operation of this action, it has long been well settled that a father may recover damages beyond a compensation for the facts alleged in his declaration, the loss of the services of his daughter, and the' lying-in expenses; and that courts disclaim the desire, and sometimes almost the power to interfere with verdicts, however unreasonably large these may seem to be.

Speaking of any action upon the case for debauching and getting with child an adopted daughter, Lokd Ellekbokougii, in 1809, said “This has always been considered as an action sui generis, where a person standing in the relation of a parent, or •m loco pa/i'entis, is permitted to recover damages for an injury of this nature, vibra the mere loss of service * * * and, however difficult it may be to reconcile to principle the giving of greater damages on the other ground, the practice lias become inveterate, and cannot now be shaken.” Irwin vs. Dearman, 11 East 23. So, Sutherland, J. justified the departure from strict legal rules in the admission of evidence, because the action itself was not in accordance with legal principle. He says : “ The testimony objected to was merely in aggravation of damages, and we all know, that although loss of service must be shown, yet that any considerable damages are given not to cover the actual loss sustained, but for injury to the parental feelings. 4 Cow., 412; 5 id. 106; 1 Wend., 447; 3 Camp., 519; 4 Cow., 355; 2 Phil. Ev., 157, and cases there died. The action is altogether anomalous in its character, and the ordinary rules of evidence cannot, in all their strictness, be applied to it, without defeating its essential object.” Stiles vs. Tilford, 10 Wend., 341.

The law as administered is well stated by Starkie, in his excellent practical work upon evidence. “ The jury, in a case of this nature, are not confined in their estimate of damages to the mere amount of the damage from loss of service, and the expenses consequent upon the seduction, but may award a compensation for the loss which the father has sustained in being deprived of the comfort and society of his child, the injury he sustains as the parent of other children, whose morals may be corrupted by her bad example, and for the dishonor and disgrace cast upon the plaintiff and his family byfsuch an injury.” 2 Stark. Ev., 7 Am. Ed., Part 11., 990. See, also, Knight vs. Wilcox, 15 Barb., 280.

But, whatever may be said about damages being given and allowed to stand as a compensation for mental suffering, for social degradation, and for moral injury, in actions for personal injuries, the wrong cannot be measured by money.' With a man of delicacy, or of honor, no verdict can be an equivalent for an unprovoked assault, committed under aggravating circumstances of time, place, and association, for a malicious prosecution upon a disgraceful criminal charge; and for the offender to speak of atoning to a husband or father, by submitting to the most extreme verdict in actions for criminal conversation and for seduction, would be adding the greatest insult to the greatest injury.

Another reason is also given in the books for the habit, and perhaps for the encouragement of exemplary damages, namely, to punish defendants for wrongs that the law does not enumerate as crimes. Bartley vs. Richtmeyer, 2 Barb. S. C. R., 189; George vs. Van Horn, 9 Barb., 527; Campbell's Lives of Lord Chancellors, Vol. 5, 207; Wilson vs. Spreul, 2 Penn. R., 527. If it be a reproach upon the common law that it has no criminal jurisdiction over seducers and begetters of bastard children, that cannot justify courts and juries, because “ ready and eager to punish the violator of female chastity and the peace of families,” to “ usurp the law making power in order to remedy a real or fancied hardship,” or to give, or uphold outrageous damages in cases properly within the rules of civil jurisdiction.

It is with regret that the legal biographer of Lord Camden, whose work has just been cited, notices that so sound a lawyer, and temperate a man as he was, should say that damages were designed, among other purposes, to serve as a punishment to the guilty, and as proof of the detestation in which the wrongful act is held by the jury.” This and similar decisions are attributed to the immense popularity which Loed Chief Justice Peatt had acquired by his noble and decided efforts to break up the illegal issue of general warrants from the office of the secretary of state, thereby inclining him, in political trials, to the popular side. If punishment is to be inflicted on culpable defendants for seductions, or for the commission of any public wrongs, it should be held due to the government to whom belongs the redress of such wrongs; should be inflicted under a code that defines the crime without fiction, and confers the benefits of a criminal trial; and by a responsible tribunal that must affix penalties by known mies, and can be restrained within some limits of punishment moderated by more disinterested authority than the general claim of a plaintiff to damages.

Our own state is free from the reproach of not defining seduction as a crime, and of not providing for its punishment, as appears by the following enactment:

“Any person who shall be convicted of obtaining carnal knowledge of any female, by virtue of any feigned or pretended marriage, or of any false, or feigned express promise of marriage, shall be imprisoned not exceeding two years, in the jail and penitentiary house of this state, and fined in any sum not exceeding five thousand dollars at the discretion of the court or jury before whom such person may be convicted.” Yet, there is added this salutary provision: “ but no person shall be convicted of said crime upon the testimony of the female, unless the same be corroborated "by other evidence.” Ch. 51, Art. II, Sec.3,p. 369, Gould’s Dig.

And if no provision has been made for the punishment of any seduction that has been encompassed by other means than a false marriage, or false promise of marriage, it must have been because .the law-making power has not thought it necessary to make such provision; and it is beyond the scope of the civil administration of our law to make up the deficiencies of the criminal law by punishing a defendant with damages, because he is not visited with fines, forfeitures, imprisonment, stripes or death. Nor is sec. 274, ch. 52, Gould’s Dig., opposed to this, as that preserves a right of action to the party injured, which, in this case, would be the party seduced, when a felony has been committed attended with personal injury.

Though remarks may sometimes have been made by judges in charges to juries, or in the delivery of hastily prepared opinions, favoring the idea that heavy damages may be given to punish, or to reform a defendant, or to express the indignation of courts, or juries, or society, against a particular act, or to deter others from the perpetration of wrong, no well considered decision has been found that inculcates' such doctrines, nor could such decision, if found, be supported by any legal principle. A private action is not the medium for satisfying the demands of public j ustice, nor an instrument recognized by law to effect individual reformation ; and the strongest advocates of vindictive damages generally contend that their office is to make satisfaction by a pecuniary equivalent, as far as that can be done, for actual, though undefinable injuries.

All the cases quoted from above, and all that have come under our notice, in refusing to disturb verdicts, because not flagrantly excessive, nor so outrageous, extravagant, or unreasonable, as to indicate passion, prejudice, partiality or corruption, admit that an opposite kind of verdict should be set aside. As long as courts can see, we suppose, that the judgment of a jury has been honestly and dispassionately exercised, they will not interfere with verdicts lor personal injuries, however mistaken or unreasonable they may believe the conclusions of a jury to have been : and that is all that is meant by saying that the judgment of courts ought not to be put in opposition to the judgment of juries in actions of this sort.

"Without saying whether the doctrine is not too strongly expressed, and has not been too pertinaciously adhered to by courts in refusing to grant new trials against the large verdicts that have become frequent in actions for seduction, we will test the present case by the doctrine as so declared and applied. But in doing so we shall give only the result of a thorough examination of the testimony, gladly passing by all particulars of alleged misconduct, or of alleged bad reputation of Sallie Thompson. And this result is a difference of opinion among the members of the court, whether the verdict should have been set aside by the circuit court for. an excessive finding of damages. And as there are other points in the case which insure its determination, the court makes no decision upon the point under consideration.

Another of the propositions stated in the beginning of this opinion strikes deeper, questioning the verdict, not because it is an excessive one, but because no verdict should have been given for the plaintiff, on account of the facts in evidence establishing that he has no right of action against the defendant.

For a trespass or injury to a child, an action may be brought against the wrong-doer, but it must be in the name of the child except for the loss of service which the father or person standing in Ms place may have sustained, or for expenses entailed upon him. Hartfield vs. Roper, 21 Wend., 617; 2 Rob. Pr., 555.

This action is not intended to satisfy the seduced daughter for her lost virtue; as for that she had her own right of action, if she did not consent to the seduction, or had not condonated it by voluntary subsequent illicit intercourse with the defendant; but the damages recovered are for the father, for the loss, the injury, the suffering and the disgrace that the seduction and pregnancy of the daughter have produced to himself and his family.

■ To entitle the plaintiff to ' any verdict against the defendant, there must be shown a criminal intercourse between the latter and the plaintiff’s daughter, that the daughter was the servant of her father when the child was begotten, or when the criminal intercourse was had, and that the intercourse has produced loss of service, or expenses to the father. Lee vs. Hodges, 13 Gratt., 737.

The criminal intercourse in this case being without question, the first 'enquiry is, was Sallie Thompson the servant of her father at the time of such intercourse ?

If she had been under twenty-one years of age, unless apprenticed to another, or emancipated from her natural servitude, she would have been his servant whether she was living in his family or not. He would have had a right to command her services, if hu. had before failed or declined to exercise-the right, and could havemaaintained an action for her seduction, although she may not have been in. his actual service. 3 Ph. Ev., 531, 4th Am. Ed.

In the English courts, it is held, that the daughter, though an infant, must reside with her father, or be absent temporarily with, his consent, and with an intention of returning to her fathoi-’s house, or the plaintiff cannot maintain the action. Dean vs. Peel, 5 East., 45; Griffiths vs. Tutgen, 28 Eng. L. & E. R., 371. But in the American courts, the doctrino is not thus qualified, and even if the daughter be absent without the intention of returning to her father’s house, he may sue. Martin vs. Payne, 9 John., 389; Nickleson vs. Stryker, 10 John., 107; Bartley vs. Richtmeyer, 4 Const., 44; Mulvehall vs. Millward, 1 Kern., 343.

But if the father have bound out the daughter to another, not having the right to her services, he can sustain no injury, and not losing anything, is not entitled to damages. Dain vs. Wycoff, 3 Seld., 194; Keller vs. Donnelly, 5 Md. Rep., 218.

For the same reason, the relation of master and servant not existing, a stepfather , cannnt recover, nor a mother, for the seduction of a daughter, in the lifetime of the father, though she incur the expenses of her daughter’s confinement. Bartley vs. Richtmeyer, 4 Const., 38; Vassal vs. Cole, 10 Misso. Pep., 634; George vs. Van Horn, 9 Barb., 523.

But if the daughter bo of full age, the father has not a right to her services, and he is not legally injured by her seduction, unless she is in his actual service; that is, unless she resides in the family, and does, at least, such slight acts of service as a daughter and member of her father’s family is expected to do. The service must be actual, though merely formal. A daughter of full.age will not be presumed to be in the father’s service, elsewhere than in his family. Nickleson vs. Stryker, 10 John., 117; Miller vs. Thompson, 1 Wend., 447; Briggs vs. Evans, 5 Ire., 21; McDaniel vs. Edward, 7 Ire., 408. And though, after the seduction, she return to her father’s house, and there be delivered at the expense of the father, he cannot obtain damages if she were absent when the injury was committed. Bartley vs. Richtmeyer, 4 Comst., 45, Postlethwaite vs. Parkes, 3 Burr., 1878.

All of the above authorities admit, or imply, that when the adult daughter lives in the family, and performs the slightest acts of service, the father, or person standing in the place of a father, has the same right of action, and may recover the same damages as if the daughter were an infant. Also, Moran vs. Dawes, 4 Cow., 412.

Seduction is not necessary to the action, for the consent of the daughter, without the connivance of the father, will not deprive him of his action, though only nominal damages, or actual pecuniary loss could be recovered. Kelley vs. Haines, 2 Caines, 292. Nor will seduction, or sexual intercourse, unaccompanied by loss of service or expense incurred, give a right of action. After the relation of master and servant is established, and loss of service is shown to have been the result of the intercourse, the plaintiff may recover damages as a'father, but he has no place in court till he has shown that he has sustained loss as a master.

“ In an action of trespass on the case, for an injury like this, the real cause of action is the expenditure of money, and the loss of service consequent upon the seduction. Hence the action cannot be sustained for seduction, unless it is followed by pregnancy, or loss of health, and consequently of service. The per quod is the gist of the action.” Sargent vs. Dennison, 5 Cow. 116. “ But even in the case of an actual parent, the loss of service is the legal foundation of the action.” Irwin vs. Dearman, 11 East., 23. “ It was, undoubtedly, necessary to a maintenance of this action, for the plaintiff to prove a loss of the services of his daughter in consequence of the seduction. The only legal foundation of the action is an injury to him in the relation of master and servant, by a loss of his servant’s services. For the injury to the daughter, for the disgrace brought upon her, for the dishonor and mental suffering occasioned to himself and his family, and the deprivation of the comfort of the society of his child, uncorrupted and undéfiled, no action is allowed by law. The right of the plaintiff to sue is the same as that of any master, in a case where his female servant, whether connected with him by ties of blood or not, has been debauched, or any wrong has been done to his servant, and no greater.” Knight vs. Wilcox, 15 Barb., 280. See, also, Wilson vs. Sproul, 3 Penn. R., 51. As seduction of a daughter, without loss oí service, will not uphold an action for a father, neither will the loss of service and payment of lying-in expenses be sufficient unless the relation of master and servant existed at the time of seduction. Bartley vs. Richtmeyer, 4 Comst., 45. On this principle, mothers, or persons standing, in the place of a .father, are denied the action, after incurring the expenses and sustaining the loss occasioned by pregnancy, when the intercourse which led to the birth of the child took place before the relation of master and servant existed between a plaintiif and the alleged servant.'

The relation of master and servant must exist at the time of the seduction, or illicit intercourse, to enable the father to bring suit; and added to this, loss of service, or payment of money, as the direct consequence of the intercourse, must ensue before plaintiff can call for a verdict. Having obtained this position in court, he may then recover damages as a father, and without regard to the value of the services lost, or money expended, from the pregnancy, confinement or sickness of the daughter.

It is not necessary that a child should be born to the daughter, or that she should be got with child, to sustain the action on the part of the father, provided there be other sickness and expenses that are the direct consequence of the illicit intercourse. Hence, where the daughter became pregnant in October, and the action was brought in December, it was sustained, because, before suit, the daughter had been unable to work on account of her pregnancy, and the subsequent birth of the child and necessary expenses, before the trial, were received in evidence in aggrvation of damages. Stiles vs. Tilford, 10 Wend., 339. Hewitt vs. Prome, 21 Wend., 79, is another case of the same kind, which has not been overruled on this point.

In Knight vs. Wilcox, the sexual connection did not result in pregnancy, nor was the daughter’s health affected by it so as to cause any loss of service to her father, but the fact of the intercourse becoming known, the parents and family of the daughter talked much to her, and threatened to prosecute the defendant. The fear of public exposure, shame at detection, or remorse for her conduct, overcame the daughter’s bodily strength: she became too unwell to perform her usual household duties, and the father sued, striving to support the suit by this loss of service. He was nonsuited on trial for not showing any loss of service accruing from the seduction. The supreme court reversed the judgment, and remanded the case. 15 Barb., 279. At the next trial the plaintiff obtained a verdict and judgment, which was affirmed in the supreme court. 18 Barb., 212. But, on final hearing in the court of appeals, it was held that such loss of service would not uphold the action, that it was not caused by the intercourse, but by its detection some months afterward. 14 N. Y. R., 413.

It then appears that seduction is not enough without loss of service, nor will loss of service without seduction at the time the plaintiff stands in the relation of master to the debauched female. Both must conjoin to make a right oí action. And in this way is the law laid down as the correct principle deduced from the decision. George vs. Van Horn, 9 Barb., 527.

An application of these principles to this case will determine the right of the plaintiff to maintain it.

And as to the loss of service — there is no proof, and can be no pretense, that the plaintiff incurred any expense, or suffered any loss, from Sallio Thompson’s seduction and pregnancy, or from Sallie Baker’s confinement, or child. She conceived in August, 1852; she says she went to live with her sister in the summer of 1852; another witness puts the time in July, where she remained till Christmas, when the defendant took her to Alabama. There she married before the child was born. Her expenses in Alaba, ma, before her marriage, if any, were not chargeable, by the proof, to the plaintiff; after her marriage, the husband with the wife took her liabilities, and in course of time her child. Before going to Alabama, and after conception, she was no charge to her father, or if she had been, or was in his actual service, no loss of service accrued.

Sallie being over twenty-one when she was seduced, in the spring of 1851, by the defendant, must have been in the actual service of her father; that is, a member of his family, when the injury was committed. "Whether the injury refer to the first connection, or to that from which pregnancy ensued, according to Sallie Baber’s deposition, she was not, at either period, a part of her father’s household. We have not overlooked the statement in Winnie Brown’s second deposition, that Sallie made her father’s house her permanent home from the time she left teaching at the .defendant’s till Christmas, 1852; but in this she is contradicted •by Sallie herself, and by other witnesses so far as their knowledge extended.' Although we wore satisfied that the plaintiff was in law the master of Sallie Thompson when she was seduced or impregnated, or if the jury so found, that would not supply the necessity of proof of loss of Sallie’s service to the plaintiff, or of his being burdened with expenses for her, growing out of her connection with the defendant.

The instruction to the jury, as well for the plaintiff as for the defendant, conceded that, to find for the plaintiff, the jury must have had it proved to them that Sallie Thompson was a servant of the plaintiff at the time of the seduction, and that loss of service was its result. The evidence not establishing these conditions, the verdict was against law, and against evidence, and upon the motion of the defendant, it should have been set aside, and a new trial granted because the plaintiff had not shown any right of action.

Two pleas of limitations were interposed by the defendant; but that of five years, which depends upon the evidence, and is good or bad as the injury relates to the first debauch of the plaintiff’s daughter, or to her conception, need not be considered until it has been found that the circuit court properly sustained a demurrer to the plea that relied upon the lapse of one year as a bar to the suit.

This latter plea was founded n^on this law: “ The following actions shall be commenced withih one year after the cause of action shall accrue, and not after: First, all special actions on the case, for criminal conversation, assault and battery, and false imprisonment; Second, all actions for words spoken, slandering the character of another; Third, all words spoken whereby special damages are sustained.” Rev. Stat., ch. 91, sec. 7; Eng. Dig., ch. 99, sec. 8; Gould’s Dig., ch. 106, sec. 11.

It is insisted here for the appellant, the defendant below, that the first specification of the section should be construed as if it read, “ all actions on the case, all actions for criminal conversation, all actions for assault aud battery, and all actions for false imprisonmentand the inference is then made that this, being a special action on the case, is included within the statute; while the argument for the plaintiff maintains that, as no mention is .made of an action for seduction, this suit falls within the provision for unenumerated actions, of which the period is five years. Gould’s Dig., ch. 106, sec. 19.

If the statute were written as the defendant would have it construed, it would provide with consistency for similar classes of cases, in forcing an early legal inquiry into initiating causes of action, or in wisely committing to legal oblivion such as should not be made the subjects of prompt complaint, while the literal and technical construction of the plaintiff would keep the door open for vexatious controversies longer than is allowed for actions of trespass up'on lands, for taking or injuring goods, for libels, and for actions upon the case founded on a contract or liability, thus reversing the whole policy of our limitation law. And if the construction should be, that the clause under consideration only embraced special actions on the case for the wrongs specified in it, there would be the incongruity of different periods of limitation for the same causes of action when prosecuted in the different forms allowed by the common law; as one year for actions on the case for batteries and false imprisonments, and five years when the same acts were complained of in actions of trespass.

Doubtless, the obvious and natural, and therefore the first construction of any writing, is that of its literal expression; but in construing a statute, unless its terms are entirely free from ambiguity, regard must be had to its known object, to the mischief intended to be provided against, to its general spirit and intent. The limitation law of the Bevised Statutes, in all its sections, is to be construed as one law. Walker vs. Peay, 22 Ark., 111. All its parts should be harmonized into one consistent whole. Its object was to provide a limit for the beginning of all common or important actions, although there is a provision for unspecified ones; and its undoubted policy is to close the courts early, against actions that embrace or engender personal strifes and embittered feelings, destroy the peace of families, and disturb the repose of society: and it should have such sensible construction as will accord with its spirit and promote these objects. We therefore hold that an action seeking to recover damages for the seduction or pregnancy of a daughter, must be begun within a year from the time the cause of action accrued.

In sustaining the demurrer of the plaintiff to the defendant’s plea of limitation of one year, the circuit court erred; and as this error was assigned as a cause of error for a new trial, the court should have sustained the motion to correct its pwn error, and, in not doing so, again erred.

There are other errors apparent upon the record, and especially to bo observed' in the admission of illegal testimony against the objection of the defendant, which are not necessary to be noticed..But because the circuit court refused to grant a new trial for its error in quashing the plea of limitation of one year; and because the plaintiff did not show any right of action, the judgment is reversed, with instructions to grant the defendant a new trial, and, on another trial, to apply the law as herein declared.


author: Mr.. Justice ComptoN

text:
    Bailey vs. Wright, adm’r.
    The rule established in England is, that if the complainant means to roly on the admissions, conversations, or confessions, of the defendant, whether oral or written, as evidence of facts charged in the bill, the bill must also specifically charge what those admissions, etc. are and to whom made; but, under the practice in this state, it is not necessary that the bill should contain any specific charge as to such admissions or in any way indicate that they will be relied on as evidence.
    The notice to take depositions, to a party non-resident of the state, may, under the statute, be served on his attorney of record, and the fact, that it is inconvenient to the attorney to attend, cannot affect the sufficiency of the notice, or furnish any ground for suppressing the depositions.

      Appeal from Union Circuit Cowrt in Chcmcery.

    IíoN. LeN. B. GkeeN, Circuit Judge.
    CakletoN, for appellant.
   Mr.. Justice ComptoN

delivered the opinion of the Court.

The bill in this case was brought by Wright against Bailey for an account of their dealings as co-partners in the purchase and' services of a stallion. The questions mainly relied on for a reversal of the decree, relate to the admissibility oí certain evidence syhich Bailey, the defendant below and appellant here, moved to suppress, but which was read on final trial. •

Bailey, it appears, had the conclusive management of the co-partnership affaire, and his oral admissions as to the amount of business done, were proven by the deposition of the witness McDonald. The bill, however, contained no specific charge as to such admissions, nor in any way indicated that they would be relied on as evidence in the case; and for this reason, so much of the deposition of McDonald as proved Bailey’s admissions was objected to as incompetent.

The rule established in England is, that if the plaintiff means to rely on the admissions, conversations, or confessions of the defendant, whether written or oral, as evidence of facts charged in the bill, the bill must also specifically charge what those admissions, conversations or confessions are, and to whom made, otherwise, no proof of them will be admitted at the hearing. The reason of the rule seems to be, that otherwise the defendant may be surprised, because he cannot know that such evidence is intended to be proved, as, under the English practice in chancery, the witnesses are examined in secret upon interrogatories not previously made known to the other party, and their testimony studiously concealed until after publication is authorized by the court. But, in Arkansas, the practice is different. Here, the interrogatories propounded to the witnesses are known to the adverse party either before or at the time of examination; consequently, neither party can be taken by surprise. Why, then, adopt the rule when the reason upon which it is founded in England, does not exist here? We are aware of no general principle upon which it can be maintained. On the contrary, all know that, in general, it is not necessary to state in the bill the materials of proof by means of which the facts charged in the bill are to be supported. This is the general rule, and why admissions or conversations to be used as evidence, should constitute an exception to it, we cannot understand. The English doctrine was ably discussed in Smith vs. Burnham, 2 Bummer Rep. 612, by Mr. Justice Story, who questioned its soundness upon principle, and refused to apply it, remarking that so far as his own recollection of the practice in the courts of the United States had gone, he had not the slightest knowledge that any such exception had ever been urged in the circuit courts, or in the supreme court, although numerous cases had existed, in which, if it was a valid objection, it must have been highly important, if not absolutely decisive, and that his impression was, that, in America, the generally received, if not the universal practice was against the validity of the exception. The same learned Judge, in his Commentaries on Equity Pleading (4th Edition sec. 265 a.) after stating the rule as established in England, says: “ Whether the like rule will be allowed to prevail in America, may be deemed a matter open to much doubt; for the like reason does not here prevail, either to justify or require it, as all the interrogatories and cross-interrogatories, put or intended to be put to the witnesses, are required to be made known to the other party before any of them are examined, or at the time of examination; and thus, neither party can be under any surprise, if the interrogatories point to any confessions, or conversations, or admissions, made to any witness.” And by way of annotation, he adds: “ The doctrine does not seem to be founded upon any very clear and intelligible principle. A confession, a conversation, or an admission, is manifestly competent evidence of any fact, which is in issue between the parties, to establish that fact. In a trial at law, it is not necessary to give the other party any previous notice that the intention is to rely on evidence of such confession, admission, or conversation. Why the rule should be otherwise in equity, it is not easy to say.” We have been referred to no case in this country, nor has one fallen under our observation, in which the rule established in England has been adopted. In the absence, then, of American authority to the contrary, and aware of no principle upon which the doctrine can rest, under our practice, we hold there was no error in the decision of the chancellor overruling the defendant’s exception to the evidence.

Nor was there error in refusing to suppress the deposition of the witness, Bustin. The defendant being non-resident, previous notice of the taking of the deposition was served, in apt time, on his attorney of record. This was in strict compliance with the provisions of our statute. The fact, that, at the time of the service, the attorney was about starting to a distant court, from whence he could not return until too late to be present at the examination, and had not time, before starting, to employ a person to represent him, manifestly cannot affect the sufficiency of the notice, or furnish any reasonable ground for the suppression of the depositions.

In the court below, the sum of $375.50 was decreed against the defendant, which, it is insisted, was erroneous. The answer of the defendant, as copied into the transcript, falls far short of giving a clear and satisfactory account of the co-partnership affairs, and is successfully contradicted as to the amount of the business transacted. Assuming it to be true, however, in all other respects, we have not been able to perceive, upon a careful examination of the evidence in the record, how a less sum could have been decreed.

Let the decree be affirmed.


author: Mr. Justice Fairchild

text:
    Thornberry, et al. vs. Baxter, et al.
    Where a debtor had conveyed his property to a trustee for the benefit of his creditors, giving a preference to certain of them, and a portion of the creditors file a bill in chancery to have the deed of trust declared fraudulent and void, all the creditors whose interests are sought to be affected by the decree are necessary parties. So, also, all purchasers, from the trustee, of trust property, unless, perhaps, it is clearly shown that the sales of the trustee would not be disturbed, and that the plaintiffs elect that the proceeds of the sales should go into the fund instead of the property sold.

      Appeal from Washington Ci/reuit Oourt m Ghcmeery.

    lion. JohN M. WilsoN, Circuit Judge.
    WatkiNS, for the appellants.
   Mr. Justice Fairchild

delivered the opinion of the court.

On the 21st of April, 1856, Martin W. Thornberry conveyed unto Walter T. Thornberry a large amount of lands, a number of negroes, a stock of merchandize, accounts and evidences of debt, and other personal property, in trust for the payment of all debts which he owed. The debts were divided into two classes, and those of the first class were to be fully paid, and in the' order in which they were specified in the deed, while those of the second class, comprising the residue of his indebtedness, were to be paid ratably as money could be procured for their payment from the property conveyed. The creditors included in the second class were named, but provision was made for any that might be omitted from specification, the expressed intent of the deed being, that all of the creditors of Martin W. Thornberry, except the preferred ones of the first class, should stand upon an equal footing. There were many provisions in the deed which need not be noticed, as the only question now to be considered is, whether the demurrer that was interposed to the bill filed in this case should have been sustained for want of proper parties.

The bill was brought by a large number of creditors of the second class, who had not accepted the provisions of the deed, against Martin W. Thornberry and his wife, the grantors, and against Walter T. Thornberry, the grantee in the deed, and did not attempt to bring before the court other creditors of the second class, or any of the numerous class of preferred creditors. The bill alleged that several of the pieces of land contained in the deed had been conveyed by the trustee to persons named, and that other property, as negroes, had also been sold to persons' known to the plaintiffs. Without any recognition of the interests of other creditors, beneficiaries of the deed of trust, or of the claims that could be set up by the vendees and buyers of the trust property, the bill sought to have the deed set aside for being fraudulent and void. If the bill had clearly shown that the sales made by the trustee would not be disturbed, and that the plaintiffs elected that the proceeds of the sales should go into the fund instead of the property sold and conveyed, the plaintiffs might, perhaps, have been excused from making the purchasers of the pz-operty parties; but in no event could the preferred and omitted creditors have been passed by without having been brought into court for an opportunity to protect their interests.

The defendant, Walter T. Thornberry, raised these points in a demurrer as objections to the bill, but it was overruled, and in default of answers, the circuit court of Washington county, sitting in chancery, declared the deed to be fraudulent and void, and required Walter T. Thornberry to account for his dealings with the trust property, and turn over that remaining to a receiver appointed by the court.

The demurrer should have been sustained: the decree is reversed: the case is to be sent back with instructions to sustain the demurrer, with leave to the plaintiffs to amend their bill.


author: TVTt. Chief Justice ENGlish

text:
    State vs. Clendenin, Judge, etc.
    It was within the power of the convention of 1S61, to continue in office any or all of the officers deriving their authority from the old constitution until their terms expired, or for any shorter period;-or to permit their tenures to expire with the existence of the instrument under which they held them, and to have appointed persons to fill the offices provisionally, until elections could be had and appointments made under the provisions of the new constitution.
    Under the present constitution, the state senators in office at the time of its adoption, were to continue to hold their offices until their successors should be elected.
    The constitution of 1861 provides for the election of successors of the senators of the first class, on the first Monday of October, 1862, and for the election of the successors of senators of the second class, on the first Monday in October, 1864.
    It was an error to elect all the senators at the general election in 1862, when only the successors of the first class should have been elected and vacancies in the second class, if any existed, filled.
    Oates belonged to the second class of senators, and his term expired by law in 1864: after the adoption of the present constitution he was not ineligible to the office of secretary of state, by reason of being a state senator.

      Application for Mcmdamus.

    Jokdan, Attorney General, for the State.
   TVTt. Chief Justice ENGlish

delivered the opinion of the court.

In November 1882, the attorney general presented to the Hon. John J. Clendenin, judge of the 5th judicial circuit, a petition, statiDg that Oliver H. Oates was, .at the general election in August, 1860, elected a senator from the senatorial district com.posed of the counties of Phillips and Monroe, and qualified and acted as such — that at -the session of the general assembly, com. mencing on the first Monday of November, 1862, he was, whilst legally a senator, his term of office not having expired, elected secretary of state, and entered upon the discharge of the duties of that office — which said last election, the relator alleges, was void, the said Oates being by the constitution ineligible to any office within the gift of the general assembly, during the period for which he was elected a senator. And the relator prayed the judge to grant the writ of quo warramto, requiring said Oates to appear and show by what warrant he exercised the office of secretary of state.

The judge refused to grant the writ, and the attorney general applied to this court for a mandamus to compel him.

On the 30th of January, 1836, the people of Arkansas, preparatory to their admission into the Union, acting by their delegates in convention assembled, created for themselves a state government, by adopting a constitution. This constitution was the frame work of the government; it carved out the offices, and defined and limited the powers and duties of the agents who were to fill them, and to be entrusted with the administration of the government.

In Kamper vs. Hawkins, 1 Va. Ca., 24, Judge NelsoN said : “ A constitution is that by which the powers of government are limited. It is to the governors, or rather to the departments of government, what law is to individuals — nay, it is not only a rule of action to the branches of the government, but it is that from which their existence flows, and by which the powers (or portions of the right to govern) which may have been committed to them, are prescribed. It is their commission — nay, it is their crmiorT''

On tbe 6th of May, 1861, the people of Arkansas, being again assembled in convention, by their delegates, abrogated the ordinance, etc., by which they had agreed that the state should become a member of the United States; and resumed to the state such portion of her sovereignty as had been conceded to the federal government on her admission into the union. (Jour., Con., 121.)

Had the convention then abrogated the state constitution, and done nothing more, all of the powers of government exercised by the persons who then filled the offices under the constitution, would have gone back to the people, the source from whence they were derived; ,the offices would have ceased to exist, and the people of Arkansas would have been left in a state of nature, without a social compact or government. (See opinion of Judge Tucker, in Kamper vs. Hawkins, 1 Va. Ca., p. 72.)

The convention did abrogate the state constitution, but at the same moment of time they adopted a new constitution — for in legal effect it is a new constitution, though most of the provisions of the old constitution were embodied in it.

Had the new constitution made no provision for the officers elected or appointed under the old constitution to continue in office, they would have been stripped of all official power at the very instant of time that the old constitution was repealed by the adoption of the new — the instrument which created their offices, and from which they derived all their right to ex.ercise the powers appertaining to them, being abrogated — in other words, their commission, as it is called by the Yirginia judge, being revoked by the fiat of the people who granted it — they could not have held their offices for another moment, or legally discharged a single duty attached to them.

Such seems to have been the understanding of all the conventions which have made new constitutions for the states; for they have invariably deemed it necessary to make provision for the officers deriving their powers from the abrogated constitutions, to continue in the discharge of their duties until the offices'could be filled under the provisions of the new constitutions. See American Constitutions; Opinion of Scott, J., in State vs. Scott, 4 Eng. 283; Watkins vs. Watkins, 2 Maryland R., 341; Benton vs. County of Kennebec, 44 Maine R., 406; Cigur vs. Crinshaw, La., An. Rep., vol. 8, 422.

It was within the power and discretion of the convention that framed our present constitution, to have continued in office any or all of the officers deriving their authority from the old constitution until their terms expired, or for any shorter period deemed expedient; or to have permitted their tenures to expire, with the existence of the instrument under which they held them; and to have appointed persons themselves to fill the offices provisionally until elections could be held, and appointments made, under the provisions of the new constitution — -just as they appointed delegates to represent the state in the confederate congress, until provision could be made for elections by the people — and just as the convention that framed the first constitution of Virginia appointed a governor and privy council, etc. Tucker’s Blackstone, Appendix, p. 90.

In Danley, et al. vs. Clendenin, ante, we decided that the new constitution made provision for the election of a governor of the state at the general election in October, 1862, and that no provision was made for the person, who held the office of governor at the time the new constitution was adopted, to continue in office for the full term of four years for which he had been elected under the abrogated constitution ; but that provision was made for him to hold and exercise the duties of the office-until his successor was elected at the time prescribed by the new constitution, and qualified. And by way of illustration of the matter decided, it was shown that the convention, had made provision for some of the officers holding under the repealed constitution, to continue in office for the remainder of’ their terms, whilst the terms of others were. abridged. But we did not decide, nor intimate, that the convention had provided for the election of the successors of all of the senators in office at the general election in October, 1862, or failed to make provision for them to continue in office- for the ■■remainder of their terms, but this question was intentionally left open, as one that might probably be brought directly before the court for its opinion, before the general election in October,1862, took place. But the question was not brought before us until after the election, when the present case was presented.

The constitution of 1836, provided that the senate should consist of members to be chosen every four years, by the electors of the several districts. (Art. IV, sec. 5.)

That the state should, from time to time, be divided into convenient districts, in such manner that the senate should be based upon the free white male inhabitants of the state, each senator representing an equal number as nearly as practicable; and until the first enumeration of the inhabitants should be taken, the state was divided into sixteen districts, each of which was to elect one senator, except the first, which was to elect two ; seventeen in all.

And it was provided that the senate should never consist of' less than, seventeen nor more than thirty-three members ; and that as soon as the senate met, after the first election to be held under the constitution, the senators should be divided by lot into two classes — nine of the first class and eight of the second — and that the seats of the first class should be vacated at the end of ¿wo years from the time of their* election, and the seats of the second class at the end of four years from the time of their election ; in order that one class of senators might be elected every two years. Art. IV, sec. 31.

It was further provided, that an enumeration of the inhabitants of the state should be taken'under the direction of the general assembly, on the 1st of January, 1838, and at the end of every four years thereafter; and that the general assembly should, at its first session after the return of every enumeration, so alter and arrange the senatorial districts, that each district should contain, as nearly as practicable, an equal number of free white male inhabitants, etc., etc. (Sec. 32.)

That the ratio of representation in the senate should be 1,500 free white male inhabitants to each senator, until the senators amounted to twenty-five in number; and then they should be equally apportioned, upon, the same basis, throughout the state, in such ratio as the increased numbers of free white male inhabitants might require, without increasing the senators to a greater number than twenty-five until the population of the state should amount to 500,000 souls; and that when an increase of senators toot place, they should, from time to time, be divided, by lot, and classed as prescribed above. (Sec.. 33.)

Senators were first elected under the constitution at a general election held on the first Monday in August, 1836, (see schedule, sec. 7.;) and when the senate met, on the second Monday of September following (schedule sec. 8,) the senators proceeded to class themselves, as directed by the constitution — nine in the first class, to hold their office for two years, and eight in the second class, to hold their office for four years, from the time of their election. See Senate Journal 1836, p. 7-9.

The first enumeration of the inhabitants of the state was made 1st of January to 1st of April, 1838, (see Acts of 1836 p. 83;) and by the apportionment act of 10th Dec., 1838, the senators were increased to twenty-one, and the number of districts to twenty. (See Acts 1838, p. 1.)

At the succeeding meeting-of the senate, November, 1840, the four increased senators were classed, by lot, as directed by sec. 33 art. IV, of the constitution, two of them falling to the first class, and two to the second class — to hold for two and four years. See Senate Journal, 1840, 122, 152.

By the apportionment act of Dec. 29th, 1842, after the second enumeration of inhabitants, the senators were increased to twenty-five, and the districts to twenty-four, (Acts of 1842, p. 39;) and at the following session of the senate, November, 1844, the four additional senators were classed, by lot, as directed by the constitution, two falling to the first, and two to the second class, etc. See Senate Journal, p. 39-40.

There was no further increase of senators, but by act of Jan. nary, 1851, after the fourth enumeration of inhabitants, the senatorial districts were increased to twenty-five. (See Acts of 1850,p. 91.

So when the new constitution was adopted (1st June, 1861,) there were twenty-five senators, thirteen of whom belonged to the first, and twelve to the second class.

The senators of tho first class were elected on tho first Monday of August, 1858, and their terms expired with the Sabbath before the first Monday of August, 1862; and the senators of the second class were elected on tho first Monday of August, 1860, and their terms expire with the Sabbath proceeding the first Monday in August, 1864, unless the new constitution has otherwise provided.

The new constitution provides that: The senate shall consist of members, to bo chosen every four years by tho qualified electors of the several districts, as they are now, or may be hereafter arranged by tho general assembly. The election for senators shall tales place at the time now appointed, or which may hereafter he appointed by law. (Art. IV, sec. 5.)

The state shall, from time to time, bo divided into convenient senatorial districts formed of contiguous territory, etc., etc., so that each senator may represent an equal number, as nearly as may be, of the free white male inhabitants, etc., etc., and until the next enumeration of the inhabitants of the state, the senatorial districts as now laid out by law shall continue. (Ib. sec. 30.)

The senate shall never consist of less than twenty-five, nor of more than thirtyffive members. The allotment of senators into two classes, as it now exists, shall continue until otherwise directed, and the successors of those in office shall be elected in the manner, and at the time now required by law, and for the term of four years. (Ib. sec. 31.)

Tho 4th section of the schedule declares that all officers, civil and military, now holding commissions under the authority of this state, shall continue to hold and exercise their respective offices until they shall be suspended etc., etc., in pursuance of the provisions of this constitution,” etc.

The senators in office at the time the constitution was adopted, were, therefore, to continue to hold and exercise their offices until they were suspended, etc., in pursuance of the provisions of the constitution.

At what time does the constitution provide for their suspension ?

At the time fixed for the election of their successors.

At what time does the constitution provide for their election ?

Section 5, of article IV, providing for the election of senators generally, declares that “ the election of senators shall take place at the time now appointed, or which may hereafter be appointed by law.”

And section 31, of the same article, providing for the election of the successors of the senators in office, declares that they “ shall be elected, etc., at the time noio required by law.”

At the time now required by law? When was that ?

As the law stood when the constitution was adopted (1st Juno 1861) the successors of the senators of first class were to be elected on the first Monday of August, 1862, and the successors of the senators of the second class, on the first Monday of Aug. 1864-, (see Gould’s Dig., ch. 62, sec. 1) — -the law requiring the general elections to be held on the first Monday of August biennially.

But so much of section 31, of article IV, of the constitution as declares that the successors of the senators in office shall bo elected at the time now required by laxo’’ is not in harmony with sec. 8, of the same article, which declares that all general elections shall be held every two years, on the first Monday of October, until altered by law — the first general election to be held on the first Monday in October, 1862.

As this section was drafted by the committee on the judiciary, and reported to the convention, it provided that the general elections should continue to be holdon on the first Monday of August, every two years, until altered by law, the first general election to be held on the first Monday in August, 1862, (see Journal of the Convention p. 381-6): and it was in harmony with the provision of section 31 in relation to the election of the successors of the senators in office, but the convention amended it, as above indicated; and in tbe 5th section of the schedule repealed the provision for the first general election to be held on the first Monday of October, 1862, and these provisions must be construed with, and control so much of •section 31, as provides for the election of the successors of senators in office at the time then required by law.

The result is, we think, that the constitution provided for the election of the successors of the senators of the first class on the first Monday of October, 1862, and for the election of the successors of the senators of the second class on the first Monday in October, 1864.

Let it be assumed that the framers of the constitution intended to vacate the seats of all of the senators in office, and to elect their successors, on the first Monday of October, 1862 ; and then let us see how this hypothesis will harmonize with the provisions of the constitution, above copied, in relation to the election and classification of senators.

Sec. 31, of art. IV, provides that the successors of the senators in office shall be elected for the “ term of three years.”

It also provides that the “ allotment of senators into two classes, as it now exists, shall continue,” etc.

But if it was intended that all of the senators should be elected in October, 1862, and for four years, the existing classification could not be preserved, because they could not classify themselves without reducing the terms of one class below four years. Moreover, there is no provision in the constitution for the senators elected as the successors of those in office to classify themselves at all — much less their successors.

But if the framers of the constitution intended, as we have concluded they did, that the successors of one class of the senators in office at the time the constitution was adopted, should be elected at the general election in October, 1862, and the successors of the other class at the next general election, then all of the successors of those in office could hold their seats for four years, and the existing classification be preserved, and continued by the allotment of any additional senators that may be provided for, from time to time, upon the increase of population, to one or the other class, in accordance with the usage of the senate under the old constitution.

The conclusion which we have reached, harmonizes, we think, with the 5th section of the schedule, which provides that “ the next general election for officers of this state, under this constitution, shall be held on the 1st Monday in October, 1862, in the manner now prescribed by law.”

Provision being made in the body of the constitution for the election of the successors of the senators in office, of the second class, at the general election in 1864, as has been shown above we trust, they were not of the class of officers who were to be elected at the general election in October, 1862, under this section of the schedule — their election having been “ otherwise pro- ■ mded for?

We have not overlooked the expression in the 81si section of the 4th article of the new constitution, that the allotment of senators into two classes, as it now exists, shall continue until otherwise directed.

Until otherwise directed ” — By what authority is this wise and salutary provision for the classification of senators to be discontinued, abrogated or changed ? As to this the framers of the constitution were silent.

The framers of the constitution left some matters, provisionally fixed by them, to be changed at the discretion of the general assembly.

For example, they provided that general elections should be by ballot, and held every two years, on the first Monday in October, “ witil altered Try law.”

That the general assembly should be held at the capitol, in the city of Little Nock, “ until otherwise directed hy law,” etc.

These are matters of mere expediency, and might well be left to the discretion of the legislature. But the classification of senators is a fundamental mattter, and we are disinclined to infer that the framers ot the constitution intended to entrust its continuance to the legislature, in the absence of an express provision. to that effect. Much less are we inclined to infer that such discretion was intended to be left to the senate acting independently.

Mr. Kent, in his Commentaries on American Law, vol. 1, p. 227, treating of the organization of the senate of the United States, says:

“ The senate has been, from the first formation of the government, divided into three classes: and the rotation of the classes was originally determined by lot, and the seats of one class are vacated at the expiration of the second-year, and one-third of the senate are chosen every second year. This provision was borrowed from a similar one in some of the state constitutions, of which Virginia gave the first example; and it is admirably calculated, on the one hand, to infuse into the senate, biennially, renewed public confidence and vigor; and on the other, to retain a large portion of experienced members, duly initiated into the general principles of national policy, and the forms and course of business in the house.”

Had the language of the constitution been that the allotment of senators into two classes, as it now exists, shall continue until otherwise directed by law, or by the general assembly, or by the senate, then the whole subject would have been under the control of the legislature, or of the senate. But in the absence of any expression indicating that the one or the other might exercise such power, we are of the opinion that the allotment of senators into two classes, as it existed at the time the constitution was adopted, must continue until otherwise directed by an amendment of the constitution, in the mode prescribed by its framers for amendments to be made, or by a convention represosenting the people. In other words, a power granted to no one, is not granted at all.

We may notice, as a matter of public history, that, under a proclamation of the chief executive officer of tire state, erroneously issued, as we humbly couceive, the seaafcors of both classes were elected at tbe general election in October, 1862.

When the senate took up the subject of classification, at its session in the following November, it necessarily labored under much embarrassment. The new constitution, as we have shown, provided on the one hand, that the successors of the senators in office should be elected for four years; and on the other, that the allotment of senators into two classes, as it existed at the time the constitution was adopted,, should continue. The senators finally resolved the difficulty in a mode satisfactory to a majority of them, by declaring that they would all continue in office for the term of four years ; and that at the general election in 1856, part of their successors should be elected for two years, and the others for four years, thereby attempting to institute a new classification of the senate, commencing with their successors, but failing to preserve and continue the existing classification as directed by the constitution.

What their successors may think of this arrangement — this attempt to abridge the constitutional terms of part of them — is matter of conjecture. But if the arrangement is upheld, the object of the constitution in providing for a classification of ,the senators, in order that one class of them — as nearly half as may be — should come fresh from the people biennially, will be defeated lor four years at least, and it may be for eight, or for an indefinite period, if the whole matter of classification is within the discretion of the senate. The error began in electing all of the senators at the general election in 1862, when the successors of the first class only should have been elected, and vacancies in the second class, if any existed, filled. Whore the error is to terminate must be determined by those who are charged with the con- • trol of such matters. Our province is to interpret the constitution when cases coming before us for adjudication involve its construction; and beyond this we cannot go in correcting errors and evils arising in the administration of the government.

Oates was elected a senator at the general election in August, 1860; belongs to the second class of senators, and his term expires in 1864.

By the 5th section of the schedule to the new constitution, he was empowered to continue to hold and exercise his office, etc., upon his taking the oath prescribed by the convention. (See Ordinances of the Con., p. 28; also, Const., art. IV, sec. 27.)

If he declined to take the prescribed oath ot office, or if he accepted some other incompatible office, or otherwise vacated the office of senator, before the general election in October, 1862, it was proper and legal to order an election to fill the vacancy for the remainder of his term, and for the remainder of his term only, in order that the existing classification of senators might be preserved. But if he had in no way vacated his office, no election for senator from his district should have been ordered.

A clause of the old constitution declares : “ That no member of the general assembly shall be elected to any office within the gift of the general assembly during the term for which he shall have been elected.” Amendments 1848, sec. 4.

The new constitution contains a clause in the same language.' Art., IV, sec. 13.

Had the old constitution, under which Oates was elected a senator for four years, not been repealed, he would have been ineligible to the office 'of secretary of state, during the entire term for' which he was elected, that being an office within the gift of the general assembly.

So, it is clear, a person legally elected a senator since the adoption of the new constitution, cannot be elected secretary of state until, after the expiration of his term.

But the clause of the old constitution which was in force when Oates was elected a senator, and which fixed upon him the dis • qualification for the office of secretary of state, was repealed before his election to that office.

The language of the new constitution is “ that no member of the general assembly shall be elected to any office within the gift of the general assembly during the term for which he shall have been elected.”

Oates was not’ elected a senator under the new constitution. He was elected, a senator for four years under the old constitution, and before the expiration of his term, the convention assembled, and repealed the organic law under which he was elected, by virtue of which he held the office, and which fixed upon him the disqualification to be secretary. The convention declared, in effect, that he might continue to hold and exercise the office for the remainder of his term. In other words, having revoked the commission which he derived directly from the people, when elected a senator, they gave him a new appointment — a new commission — to hold and exercise the office of senator, under the new constitution, for the remainder of his term. But to such appointment made by the convention, the disqualification to be secretary of state does not attach. It attaches to persons only who shall ham been elected a member of the general assembly under the new constitution.

The writ of mandamus is refused.


author: Mr. Justice Faibchild

text:
    Burt et al. vs. Williams.
    So much of the act, approved 1st December, 1862, as provides “ that ail suits at law or equity now pending, or hereafter to be commenced in any of the court» of this state, shall be continued until after the ratification of peace between the United States and the Confederate States,” is unconstitutional — the continuance of criminal suits, directed by the act, being in violation of the constitutional right of the accused to a speedy trial, (Cons. art. 11, sec. 11.) and the continuance of all civil suits being in violation of the constitution (lb. sec. 18.) prohibiting the passage of any law impairing the obligation of contracts.
    Granting a continuance is exclusively a judicial act, and is not a proper subject or legitimate use of legislative authority.

      Appeal from Hempstead Circuit Court.

    IIon. Len. B. Green, Circuit Judge.
    Williams & Eaein for appellants.
    Jennings, for appellee.
   Mr. Justice Faibchild

delivered tbe opinion of tbe court.

In an act of tbe general assembly approved 1st December, 1862, entitled “ an act to prevent the issuance of executions, it is also enacted, “ that all suits at law or equity now pending or hereafter to be commenced in any of the courts of this state, shall be continued until after the ratification of peace between the United States and the Confederate States,”

The constitutionality of this enactment is the matter presented for the consideration of the court in this case.

The terms of the law, “ all suits in law or equity now pending, or hereafter to be commenced in any of the courts of this stated include every conceivable controversy that parties have brought or shall bring into courts of justice, “ until after the ratification of peace between the United States and the Confederate States.” Thus, not only are the ordinary actions founded upon contracts broken, and wrongs committed to which persons in life are parties, to be continued, but the same disposition is to be made of all criminal prosecutions promoted by the state, of all contested claims against the estates of deceased persons, of every matter of difference that has been, or may be, brought into any court for j udicial ‘adjustment.

Our system of laws and of government has ever been supposed to make it proper and necessary, that justice should be offered to contending parties at places conveniently situated to them, and at times frequently recurring; and as mediums for the prompt and convenient dispensation of justice, courts of different grades and jurisdictions have been constituted, and have been required to be held at stated times and places. But the law under consideration has its foundation 'in another policy. By it, courts are not to be places where justice is judicially administered, but where it shall be denied by being deferred to an uncertain time. Although it were incredible to suppose that such was the intention of the general assembly, the manifest effect of this enactment will be, that during the existence of the present war, and beyond the cessation of hostilities, “ until after the ratification of peace between the United States and the Confederate States,” all of the courts of the state will be shut against any enquiry into the breach of contracts, will not afford any redress to injuries sustained by its citizens, or by persons within its limits, will not attempt to inflict punishment for crimes, -or to ascertain if any crimes have been committed, though complaints thereof shall have been made according to law.

If the law be constitutional, it must be observed, regardless of the consequences; if it bo unconstitutional, it must be so declared.

Persons that are held to answer criminal charges made by presentment or indictment, have a constitutional right to a speedy trial. Constitution, curt. II. sec. 11; and this right being disregarded by the law under consideration, the law cannot be enforced in cases of this sort.

Section 18, of the same article of the constitution prohibits the passage of any law that impairs the obligation of contracts, and it is well settled that any law which destroys the remedy for enforcing a contract, or so obstructs the remedy as to make the contract valueless, or greatly lessen its value, impairs its obligation. A right without a remedy to declare it, is not a valuable right: a contract that cannot be enforced has no legal obligation ; and one that was enforcible by law when made, but which cannot be compelled to be performed, by the law for its performance being repealed, or being so changed or clogged as materially to diminish its worth, has suffered from unconstitutional legislation. Under the operation of the law we are now considering, every remedy to secure the performance of a ebntract is taken away until the happening of an event which may never happen: and as to all contracts made before the passage of tbe act, the act is unconstitutional, and therefore void.

It may further be enquired whether the law is valid to require the continuance of any suit in any court of the state. And this it is not, if, instead of being an act of legislative authority, it is an exercise of judicial power.

Granting a continuance is either an exercise of judicial discretion upon particular facts, or an application of legal rules to them, the facts being ascertained by the court, and the discretion used, or application of law made by the court; and in either case is exclusively a judicial act. A legislative act is an annunciation by the legislative authority that certain results shall follow particular actions or conditions; but the ascertainment of the act or condition and the application of the consequences belong to the courts.

But by this law, the general assembly, from the fact of war existing between the United States and the Confederate States, has directed that all suits in law and equity in any of the courts of the state shall be continued till the war is ended, till the hostile nations have made a peace, till a treaty of peace shall be ratified. No fact is to be ascertained by the courts, no application of legal principle is to be made to the fact that the legislature has ascertained, but the courts, as registers of the legislative will, are to record its edict, closing indefinitely the temple of justice to all its suitors.

This is not the manner in which courts exercise judicial functions, is not a proper subject, or legitimate use of legislative authority, inasmuch as the powers of the government of this state are divided by the constitution into distinct departments, each of which is confided to a separate magistracy: the legislative powers to the general assembly, the judicial powers to the judiciary. Constitution, art. 111.

Doubtless, the general assembly conceived that the general interest of the state would be promoted by the continuance of all civil cases till the war was ended, and till peace-was made and ratified by treaty, taking fieed to the necessities and ease of defendants, but disregarding the rights of plaintiffs to have payment of debts, performance of contracts, and redress for wrongs done to them. If it were competent for the legislative authority to do this, no examination of the correctness of their basis of action would be proper in this court, for the will of the legislative authority is a sufficient, and the only reason for the exercise of its constitutional power. But when, as in this instance, a law is enacted which passes over the limit assigned to the legislative department by the constitution, it becomes the duty of this court so to declare, and thus to restrain an unconstitutional exercise of power. And especially is this so, when, in the confusion of war, in the excitements produced by sympathy with the wants and distresses of particular classes of the people, the rights of others and the well being of the whole society are likely to be endangered and to be sacrificed. In orderly and peaceful times the state might better trust to laws without constitutional safeguards; but in periods of turbulence, when passion and feeling usurp dominion over reason, infractions upon the constitution should be closely watched, must be firmly restrained. This important, but disagreeable duty is, by our organic law, entrusted to this court in the last resort, and its responsibility must not be avoided when the constitution requires it to be exercised, any more than it should not be assumed without constitutional warrant.

We cannot but think that the comprehensive terms of the law . were inadvertently made to cover suits at law in criminal cases.

Circuit courts will, doubtless, in view of the obstacles which the times offer to the progress of judicial business, exercise a liberal discretion in preserving the rights of litigants.

This case was an action of debt brought in the circuit court of Hempstead county. The defendants moved for a continuance upon the law under consideration, which the court refused and gave final judgment, no other question being presented to the court.

The judgment is affirmed.