Atwood v. Buckingham

• Citation: 62 A. 616,78 Conn. 423
• Parties: ATWOOD v. BUCKINGHAM.
• Decision Date: 15 December 1905
• Court: Supreme Court of Connecticut

62 A. 616

78 Conn. 423

ATWOOD

v. BUCKINGHAM.

Supreme Court of Errors of Connecticut.

Dec. 15, 1905.

Appeal from Court of Common Pleas, Fairfield County; Howard J. Curtis, Judge.

Action by D. Preston Atwood against Annie McLean Buckingham to recover a forfeiture incurred by defendant as an administratrix, for unexcused failure to file an inventory, as provided by Gen. St. 1902, § 324. From a judgment in favor of plaintiff for the limited amount provided in such actions by Pub. Acts 1905, p. 413, c. 217, plaintiff appeals. Affirmed.

E. P. Arvine and John J. Phelan, for appellant. Lucien F. Burpee and S. McLean Buckingham, for appellee.

PRENTICE, J. The plaintiff, in May, brought his action to recover $240, as the forfeiture provided by section 324 of the General Statutes of 1902, claimed to have been incurred by the defendant as an administratrix through her unexcused failure, for the 12 months prior to the bringing of the action, to file an inventory as provided by law. While the action was pending the General Assembly, by an act which was approved and went into effect on June 21, repealed said section. Pub. Acts 1905, p. 365, c. 100. Later in the session, by another act which was approved and went into effect July 6, 1905, it was enacted that "in all civil actions pending in the courts of the state brought under section 324 of the General Statutes for recovery of the forfeiture therein provided, such recovery shall be for the sum of one dollar only as the forfeiture for such neglect and the taxable costs of court." The act further provided that the defendant might before trial tender to the plaintiff the sum of one dollar and accrued costs, and that upon the plaintiff's refusal to accept the same he should not recover any sum in excess thereof. Pub. Acts 1905, p. 413, c. 217. The defendant thereupon filed an answer in which she set up a tender of the sum of $1 and the amount of taxable costs then accrued. To this answer the plaintiff demurred and assigned as grounds of demurrer various reasons involving the construction and effect of the two acts of 1905 referred to and the constitutionality of the one under which the tender was made and pleaded. The court overruled the demurrer, and, the plaintiff refusing to plead further, rendered judgment that the plaintiff recover the amount of the tender. Of this action he complains.

Section 1 of the General Statutes of 1902, provides, among other things, that the repeal of an act shall not affect any suit or prosecution or proceeding pending at the time of the repeal for an offense committed or for the recovery of a penalty or forfeiture incurred under the act repealed, and that the passage or repeal of an act should not affect any action then pending. The repeal of said section 324 did not, therefore, as the defendant concedes, affect the plaintiff's action or any other which may have been pending under said section. The repeal, however, was effectual not only to prevent the institution of new actions for future delinquencies, but also to prevent the bringing of such' actions for past ones. The plaintiff has erroneously assumed the contrary to be the situation as respects neglects which antedated the repeal. It is the well-settled rule that, in the absence of a saving clause or statute, the right to bring suit to recover a penalty or forfeiture falls with the act which provides it. Yeaton v. United States, 5 Cranch, 281, 3 L. Ed. 101; Maryland v. Baltimore, etc., R. Co., 3 How. 534, 11 L. Ed. 714; Norris v. Crocker, 13 How. 431, 14 L. Ed. 210; Welch v. Wadsworth, 30 Conn. 149, 79 Am. Dec. 239. There was no saving clause in the present repealing act. Section 1 of the General Statutes of 1902 contains the general provision that the repeal of an act should not affect any punishment, penalty, or forfeiture incurred before the repeal takes effect. But no penalty or forfeiture could by any possibility be Incurred under the repealed act by any delinquent before suit was in fact instituted, for the all-sufficient reason, if for no other, that the section expressly provides that there should be no forfeiture incurred in any case where the delinquent before suit is brought makes to the court of probate an acceptable excuse for his delay. The absence of this excuse at the moment suit is brought is thus made one of the conditions of forfeiture. This the plaintiff recognized when he framed his complaint, which averred the absence of an accepted excuse. By reason of this condition, no incurred forfeiture was possible under the act until the status of the party against whom a forfeiture was sought to be enforced was by the bringing of an action fixed as that of a delinquent subject to the statutory penalty. When, therefore, the repeal took effect, there was an end to all situations which could furnish the basis of new actions. Persons who had escaped suit might be in neglect, but none of them had as yet become subject to the penalty of the statute, and it could not then have been foretold that any one of them would ever have become so had the statute continued in force. The plaintiff contends that said chapter 217, which is the act which reduces the amount of the forfeiture and under which the tender was made, should be given a prospective application only, and not made to retroact upon actions already brought. In aid of this contention it is said, and well said, that the presumption is that statutes are intended to operate prospectively, and that they should not be construed as having a retrospective effect, unless their terms show clearly and unmistakably a legislative intention that they should so operate. Thames Mfg. Co. v. Lathrop, 7 Conn. 550; Plumb v. Sawyer, 21 Conn. 355; Smith v. Lyon, 44 Conn. 175; Middletown v. New York, N. H. & H. R. Co., 62 Conn. 492, 27 Atl 119. With respect to the present act, however, it is to be observed that to confine its operation to suits to be brought is to deny it all operation whatsoever. Its subjectmatter is expressed to be "all civil actions pending in the courts of the state brought under section 324 of the General Statutes." We have already seen that the only actions which could by any possibility ever be or become pending under that act were those which were pending at its repeal, which antedated the enactment of chapter 217. The Legislature must therefore have meant by pending actions those actions or none at all. Furthermore, if chapter 217 be read in connection with chapter 160, as it should be, it will be clearly seen that by the two acts the General Assembly, at its session in 1905, undertook to deal with the whole situation presented by litigation, actual or possible, which might arise under said section 324. In the first it was sought to prevent all new actions; by the second to deal with those which had been begun. These considerations, when taken in connection with the natural meaning of the language employed in chapter 217, leave no room for doubt as to the legislative intent, and that the legislative command was thereby expressly given that the right of recovery in all actions then pending under section 324, should be controlled and limited as therein provided. In the presence of this express command the saving clauses contained in section 1 of the General Statutes, which have been already noticed, of course, become ineffective. They are but legislative enactments, and must yield to the later expression of the legislative will.

The plaintiff next claims that, in so far as chapter 217 professes to operate upon actions pending at the time of its enactment, it is unconstitutional....