Baily v. Gentry

• Decision Date: 30 April 1822
• Citation: 1 Mo. 164
• Parties: BAILY v. GENTRY AND WIFE.
• Court: Missouri Supreme Court

1 Mo. 164

BAILY

v.GENTRY AND WIFE.

Supreme Court of Missouri.

April Term, 1822.

COOK, J.

This is an application for a supersedeas, in the following case: Gentry and wife obtained judgment against Baily in the Circuit Court of Cooper county, in an action of debt, founded on his bill obligatory; and on the 9th day of September, 1821, caused an execution to issue thereon, on which the sheriff returned, that on the 1st day of October, 1821, he levied said execution on a negro man, the property of the defendant, and there being no endorsement thereon, by the plaintiff, the defendant, on the 13th day of February, 1822, offered his bond, with security, agreeably to law, to stay all further proceedings on said execution, which bond he had taken as sufficient, and returned it with the execution. The plaintiff moved the Court to quash the proceedings of the sheriff, in taking said bond, and award to them an alias execution, on the ground, that the law, under which the sheriff acted, was unconstitutional and void; whereupon, the Court adjudged, that the proceedings had on said execution be quashed and set aside, and the plaintiff have an alias execution. In support of the application, it is insisted, first, that the Circuit Court erred in setting aside the proceedings of the Sheriff on the execution, and secondly, in awarding an alias execution. In support of the first error assigned, the act of the last ses sion of the General Assembly of this State, pointing out the manner in which execution may be stayed, &c., is relied on. The application is opposed, on the ground, that so much of the act referred to, as provides for staying executions, is repugnant to the Constitution of the United States, and to the Constitution of this State, and, thorefore, void: first, because it impairs the obligation of contracts; secondly, because, in effect, it makes something else, besides gold and silver coin, a tender payment of debts; thirdly, because it is retrospective in its operation; and fourthly, because it would effect an unconstitutional delay of justice. It is contended, in support of the application, first, that the act under consideration is not repugnant to the Constution of the United States, nor to the Constitution of this State; and secondly, that the Court is bound to observe the provisions of the act of the General Assembly, without regard to the Constitution.

The last point is first in order, inasmuch as it tends to preclude any investigation of the validity of the act. It will, therefore, be first con sidered. A course of adjudication, almost entirely uniform and uninterrupted since the adoption of the Federal and State Constitutions, as well in the Supreme Court of the United States as in most of the State Courts, would (but for the zealous manner in which this point was urged in argument), have been deemed satisfactory and conclusive. It is contended that the judiciary, in deciding on the validity of the acts of the Legislature, usurps a supremacy in government destructive of the powers and independence of its co-ordinate branches, and that the decision of the Court, pronouncing such act unconsti tutional, is a virtual repeal thereof. If the declared will of the Legislature, whether consonant or repugnant to the Constitution, has the force and effect of law, and the co-ordinate branches of the government bound to conform to it, until the Legislature itself shall declare a different will, then is the Constitution, as to that body, a mere nullity, a dead letter, and the acts of one branch of the government, created by, and deriving all its powers under the Constitution, are paramount to it. That the Legislature are not under the control of any other branch of the government, as to what they shall do or omit to do, is clear; as in the case put in argument, that if they should neglect to assemble for the purpose of enacting laws necessary for the government of the State, or being assembled, should (in cases where legislative aid is necessary to give effect to constitutional provisions, in relation to other branches of the government), exercise their powers so improvidently as to embarrass the administration of justice, the judiciary would neither be competent to command them to meet and enact laws, nor to modify what they had done, but must decide and construe their express enactments. To the objection that the Court, in deciding an act of the Legislature to be unconstitutional, virtually repeals the law, it is but necessary to answer, that it is not the judgment of the Court which destroys the effect of the act; the Legislature being prohibited, by the Constitution, from passing such law, the act itself is void, and therefore requires no act of the Court, or any other authority, to repeal it. Since the case of Marbury v. Madison, decided in the Supreme Court of the United States (1 Cranch's Rep. 137), this question has been generally looked upon as settled.

M'GIRK, C. J.

In the second section of the sixth article of the constitution of the United States, it is provided, that “this constitution, and the laws of the United States, made in pursuance thereof, &c., shall be the supreme law of the land; and the Judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.” It is conceived that this provision not only gives the power to the State Judges, but expressly makes it their duty, to decide on the constitutionality of the laws of the State, whenever they are supposed to conflict with the constitution of the United States. But on the question, whose province is it to decide whether acts of the State Legislature contravene the State constitution? our constitution is silent. The powers of the government are divided into three distinct departments, each of which is to be confided to a separate magistracy (art. 2, of constitution of this State). The third article creates the legislative power, and vests it in a General Assembly. The fourth article creates and vests the supreme executive power in a Governor. The fifth article creates and vests the judicial power, in matters of law and equity, in a Supreme Court, and other Courts, therein provided for. The constitution of the United States makes a similar distribution of the powers of the general government, and, under this distribution of power, we find the Supreme Court of the United States deciding on the constitutionality of the acts of Congress, although there is nothing in that constitution expressly authorizing that Court to do so. The case above referred to, in 1 Cranch, was an application on the part of Marbury (founded on the act of Congress which authorizes the Supreme Court of the United States to issue writs of mandamus, in cases warranted by the principles and usages of law, to any Courts appointed, or persons holding office under the authority of the United States), for a mandamus to compel Mr. Madison, Secretary of State, to deliver a commission. The Court refused to award the mandamus, on the ground, that the act of Congress relied on, was unconstitutional, and in support of that opinion, says: “It is emphatically the duty of the Court to say what the law is; and, if two laws conflict with each other, the Court must decide on the operation of each.” And in another part of the opinion, page 178: “So, if a law be in opposition to the Constitution, if the law and Constitution both apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of the conflicting rules govern the case. This is of the very essence of judicial duty.” If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. Those, then, who controvert the principle, that the Constitution is to be considered in Court, a paramount law, are reduced to the necessity of maintaining, that Courts must close their eyes on the constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions. And again, page 180: “Why, otherwise, does the Constitution direct the Judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the known instruments, to violate what they swear to support.” In the case of M'Culloch v. The State of Maryland et al., reported 4 Wheaton, 316, the constitutionality of the act of Congress incorporating the President, Directors and Company of the Bank of the United States, was the direct question; yet the competency of the Court to decide on the constitutionality of the act, was not questioned.

The next question for consideration is, did the Circuit Court err in setting aside the return of the sheriff on the execution? And this necessarily leads us to consider the act of the General Assembly of this State, upon the validity of which this question depends. It authorizes the sheriff, in terms, to make the return he did; and if the act is constitutional, the proceedings and return of the sheriff were right, and the Circuit Court erred in quashing said return. But if the act be unconstitutional, then there is no error on that point. In deciding this question we shall consider the objections to the act, in the order in which they are arranged in the preceding part of this opinion. First, does this act impair the obligation of contracts? The act substantially provides, in the first section, that valuers shall be appointed, whose duty it shall be, to appraise all property, real or personal, taken under executions issued by Courts of Record or Justices of the Peace. The second section provides, that when any execution...