Coles v. Cnty. of Madison

CourtSupreme Court of Illinois
Citation1 Ill. 154
PartiesEDWARD COLES, Plaintiff in Error, v. THE COUNTY OF MADISON, Defendant in Error.
Decision Date30 June 1826

OPINION TEXT STARTS HERE

ERROR TO MADISON.

The legislature have the power, by an act of their own, to release a penalty accruing to a county, after verdict but before judgment. Such an act is not unconstitutional, it being neither an ex post facto law, or law impairing the obligation of contracts, and it can be pleaded, puis darrien continuance.

Counties are public corporations, and can be changed, modified, enlarged, restrained, or repealed, to suit the ever varying exigencies of the state--they are completely under legislative control.

Opinion of the Court by Chief Justice WILSON.a1

This is an action of debt brought by the county commissioners of Madison county, for the use of the county, against Edward Coles, for $2,000, as a penalty for bringing into the county, and setting at liberty, ten negro slaves, without giving a bond, as required by an act of the legislature of 1819. To this action, Coles plead the statute of limitations, which plea was demurred to, and the demurrer sustained by the court, and the parties went to trial upon the issue of nil debet. A verdict was found against Coles, at the September term, 1824, of the Madison circuit court, but no judgment was rendered upon it, till September, 1825, the cause having been continued till that time, under advisement, upon a motion for a new trial. In January, 1825, the legislature passed an act releasing all penalties incurred under the act of 1819, (including those sued for,) upon which Coles was prosecuted.

This act Coles plead puis darrien continuance, and renewed the motion for a new trial, but the court overruled the motion, and rejected the plea, and rendered judgment for the plaintiffs.

There are several causes assigned for error, but the one principally relied upon is, that the court rejected the defendant's plea, (as a bar to the further prosecution of the suit,) alleging a compliance on his part with the act of January, 1825.

The only question for the decision of the court, from this statement of the case, is, was the legislature competent to release the plaintiff in error from the penalty imposed for a violation of the act of 1819, after suit brought, but before judgment rendered? or in other words, could they, by a repeal of the act imposing the penalty, bar a recovery of it? If the legislature can not pass an act of this description, it must be because it would be in violation of that provision of the constitution of the United States, (and which has in substance been adopted into ours,) which denies to the state legislatures the right to pass an ex post facto law, or law impairing the obligation of contracts. This is the only provision in that instrument, that has any bearing upon the present question.

Is the law of 1825, then, an ex post facto law, or does it impair the obligation of a contract? The term ex post facto is technical, and must be construed according to its legal import, as understood and used by the most approved writers upon law and government. Judge Blackstone says, “an ex post facto law is where, after an action (indifferent in itself) is committed, the legislature then, for the first time, declare it to have been a crime, and inflict a punishment upon the person who committed it.” This definition is familiar to every lawyer, and I am not aware of any case in either the English or American courts, in which its correctness is denied.

It appears from the Federalist, a work which has been emphatically styled the text-book of the constitution, that the term was understood and used in this sense by the framers of that instrument. The authors of this work were among the ablest statesmen and civilians of the age,--two of them were members of the convention that framed the constitution, and would not have been mistaken in the meaning of the terms used in it. Judge Tucker, in his notes on the Commentaries of Blackstone, also adopts it as the true one, and it is evident from the tenor of his comments upon the principles contained in that work, that if there had been any doubt of the correctness of this one, that it would not have been passed in silence, much less would it have received his approbation.

But that the term ex post facto is applicable only to laws relating to crimes, pains and penalties, does not rest upon the bare acquiescence of the courts, or the authority of elementary writers. It has received a judicial exposition by the highest tribunal in the nation. The decision of the Supreme Court of the United States, in the case of Calder and wife, v. Bull and wife, 3 Dallas, 386, must be considered as having put this question to rest. The point decided in that case was, as to the validity of an act of the legislature of Connecticut, which had a retrospective operation, but which did not relate to crimes. All the state courts, through which that case passed, decided in favor of the validity of the law. It was then taken up to the supreme court of the United States, where the judgment was affirmed. The court was clearly of opinion, that the prohibition in the United States constitution was confined to laws, relating to crimes, pains and penalties. Judge Chase, in delivering his opinion, says, “every ex post facto law must, necessarily, be retrospective, but every retrospective law is not an ex post facto law; the former, only, are prohibited by the constitution.” Patterson, Justice, said, he had an ardent desire to have extended the provision in the constitution to retrospective laws in general,” and concludes his remaks by saying, “but on full consideration, I am convinced that ex post facto laws must be limited in the manner already expressed.” Sergeant's Constitutional Law, 347. No higher evidence, I believe, can be adduced, of the existence of any principle of law, than is afforded by these authorities, that the law under consideration is not an ex post facto one. It is considered that it is retrospective, and that as a general principle of legislation it is unwise to enact such laws; yet it is not the province of a court to declare them void. No prohibition to the exercise of such a power by the legislature is contained in the constitution of the United States or of this state, and it is an incontrovertible principle, that all powers which are not denied them by one or other of those instruments, are granted. The next inquiry is, does this law violate the obligation of a contract?

This question is easily answered. A contract is an agreement between two or more, to do, or not to do, a particular act--nothing like this appears in the present case. If a judgment has been obtained, the law might, by implication, raise a contract between the parties; but until judgment, the defendant is regarded as a tort feasor; he is prosecuted upon a penal statute for a tort; the action would die with him, which would not happen in the case of a contract. It is idle, therefore, to talk of a contract between the plaintiff and defendant, and it is only between the contracting parties that the legislature is prohibited from interfering. But in this case there is no contract between any parties, and all reasoning founded upon the idea of a contract, is nugatory. But it is said, the legislature could not pass this law, because the plaintiffs have acquired a vested interest in the penalty, by commencing suit, which can not be taken away.

The authorities relied upon to support this position, are not apposite. The decisions in those cases, turned on the construction of the laws, and not on the authority of the legislature to pass them. In the case of Coleman v. Shower, (2 Show.,) which was an action brought after the passage of the statute of frauds and perjuries, upon a marriage promise made by parol, the judges said, they believed the intention of the makers of that statute was only to provide for the future, and not to annul parol promises which were good and valid in law, at the time they were made. In the case of Couch qui tam v. Jeffries, (4 Burrow, 2460,) lord Mansfield placed his opinion on the intention of the legislature, which, he believed, was not to do injustice to the plaintiff, by subjecting him to costs. So, too, in Dash v. Van Kleeck, 7 Johns., 577, the same ground was assumed. The court did not intend to decide that the legislature could not pass a retrospective law, but that the one under consideration was not necessarily retrospective, and therefore ought not to receive that construction. In this opinion, the court was divided three to two. But had the plaintiffs a vested interest in the penalty before judgment? a vested right is one perfect in itself, and which does not depend upon a contingency, or the commencement of suit. Suit is the means of enforcing, or acquiring possession of a previously vested interest, but the commencement of suit does not of itself, even in a qui tam, or popular action, vest a right in the penalty sued for. The only consequence that results from the commencement of a popular action is, that it prevents another person from suing, and the executive from...

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11 cases
  • State ex rel. McKittrick v. Bair
    • United States
    • Missouri Supreme Court
    • June 23, 1933
    ...v. City of Clinton, 49 Okla. 797; Kansas City v. Stewart, 90 Kan. 849; 25 C. J. 1213; Maryland v. Baltimore, 3 How. 534; Coles v. Madison Co., 1 Ill. 154; State to the use of W. County v. Railroad Co., Gill & Johnson, 400; State ex rel. v. Ry. Co., 89 Mo. 570. (c) The repeal or suspension o......
  • Nubby v. Scott
    • United States
    • Mississippi Supreme Court
    • September 11, 1939
    ...24 Miss. 85; Day v. Madden, 48 P. 1053; Richardson v. Aiken, 87 Ill. 138; Steers v. Kinsey, 68 Ark. 360, 58 S.W. 1050; Coles v. Madison County, 1 Ill. 154, 12 Am. Dec. 161. finding of the Chancellor on conflicting evidence is conclusive upon the question that it was not a contract between t......
  • White v. Sunrise Healthcare Corp., 2-97-0481
    • United States
    • United States Appellate Court of Illinois
    • March 31, 1998
    ...expectancy that the legislature may negate any time before a final judgment creates a property interest in the award. In Coles v. County of Madison, 1 Ill. 154 (1826), the county obtained a verdict against an individual who had imported and freed several slaves without posting a bond as a s......
  • Philip v. Daley
    • United States
    • United States Appellate Court of Illinois
    • June 2, 2003
    ...City of Mt. Carroll (1947), 398 Ill. 473, 477 ; Geweke v. Village of Niles (1938), 368 Ill. 463, 467 , 117 A.L.R. 262,; Coles v. County of Madison (1826), 1 Ill. 154, 160 .) The legislature has provided various methods for altering municipal boundaries, including provisions for the disconne......
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