Denver, S.P. & P.R. Co. v. Woodward

• Decision Date: 01 April 1878
• Citation: 4 Colo. 162
• Court: Colorado Supreme Court
• Parties: DENVER, SOUTH PARK & PACIFIC RAILWAY CO. v. WOODWARD, Ad'r.

4 Colo. 162

DENVER, SOUTH PARK & PACIFIC RAILWAY CO. v. WOODWARD, Ad'r.

Supreme Court of Colorado

April, 1878

The prohibition of retrospective legislation in the constitution operates as a saving clause incorporated into the repealing section.

UPON petition for rehearing in this case (ante, p. 1) the following opinion was delivered by

THATCHER C. J.

Suit was brought by the personal representative of James Smith, in the district court of Arapahoe county, October 5th, A. D 1875. The right to recover was founded upon a statute, the material parts of which are set out in the opinion in chief. On the 20th day of February, A. D. 1877, judgment was entered in favor of the plaintiff, and on the same day an appeal was prayed by the defendant to this court. On the fifth of April of the same year, a transcript of the record was filed with the clerk of this court.

But for the statute, in pursuance of which the suit was brought, no recovery could have been had. At common law the right did not exist. Had the accident not resulted in the death of Smith he might, at common law, have recovered for the bodily injury sustained by him; but as the action was personal, it died with the person.

The statute, however, intervened and gave to the personal representative of the deceased the right to maintain an action, in a case, where the deceased, had he lived, might have maintained it. Whether the cause of action, when the injury results in death, arises before or after the homicide is a question upon which the authorities are not agreed. Fowlkes v. Nashville & Decatur R. R. Co., 9 Heisk. 829, and cases cited.

To our inquiry in this case, whether it arose before or after death is not material. When death resulted there was a subsisting cause of action.

After the defendant had taken an appeal to this court, and while it was pending here, the State legislature-March 7th, 1877-repealed the statute of February 8th, 1872, upon which this action was founded. The repealing statute went into effect ninety days after its passage.

Our Constitution provides (s 11 of the Bill of Rights), 'that no ex post facto law, nor law impairing the obligation of contracts or retrospective in its operation * * * shall be passed by the general assembly.' The phrase ex post facto, as used in the Constitution of the United States, and the Constitutions of the several States, does not apply to civil laws. Such laws only are ex post facto as provide for the punishment of a party for acts antecedently done which were not punishable at all, or not punishable to the extent or in the manner prescribed. Watson v. Mercer, 8 Peters, 88; Carpenter v. Commonwealth of Penn., 17 How. 456; Locke, Adm'r, v. Dane et al., 9 Mass. 362.

Retrospective laws, except such as are ex post facto in the sense above indicated, and such as impair the obligation of contracts, are not in terms inhibited by the Constitution of the United States. Although such laws are often oppressive and unjust, amounting to a practical denial of justice, the courts have frequently asserted the right of the legislature to enact them, when not prohibited by the Constitution. But when legislatures, even in the absence of a constitutional interdict, pass laws which might be so construed as to give them a retrospective effect, courts will not so interpret them unless the intention of the law-making power is clearly declared. With caution and distrust, courts give retrospective statutes effect, even where the law giver has a constitutional power to enact them. But here no such power exists. It was wrested from the legislature by the framers of the Constitution.

Our Constitution, as we have seen, prohibits the general assembly from enacting: First, ex post facto laws; second, laws impairing the obligation of contracts; third, laws retrospective in their operation.

The fundamental law could not well have been more comprehensive. The term retrospective was intended to apply to laws which could not properly be said to be included in the description of ex post facto, or laws impairing the obligation of contracts. DeCordova v. Galveston, 4 Tex. 474; Bender v. Crawford, 33 id. 745.

New Hampshire was, we believe, the first State to adopt a Constitution expressly prohibiting retrospective laws applicable to civil causes. The twenty-third article of the New Hampshire bill of rights is as follows: 'Retrospective laws are highly injurious, oppressive and unjust. No such laws, therefore, should be made, either for the decision of civil causes, or the punishment of offenses.'

Adjudications upon this article are numerous. The holding of the courts in that State is, that it is not within the constitutional competency of the legislature to annul by statute any legal ground on which a pending action is founded. In Woarts v. Winnick, 3 N. H. 473, Chief Justice RICHARDSON, after a careful consideration of the question before him, says: 'The most attentive examination we have been able to give to the clause in the Constitution we are now considering, has satisfied us that it was intended to prohibit the making of any law prescribing new rules for the decision of existing causes so as to change the ground of the action or the nature of the defense.' In the case of Dow v. Norris, 4 N. H. 17, it was held that where a statute gives a penalty incurred under it to an individual, the right of the individual to the penalty cannot be taken away by a repeal of the statute; that so far as the repealing statute might be construed to affect past transactions, it was repugnant to the Constitution and wholly inoperative. This case is cited approvingly in DeCordova v. The City of Galveston, 3 Tex. 477. The Constitution of Texas contains a similar provision to our own. In the case of Clark v. Clark, 10 N.H. 380, it was decided that a statute which attempts to confer authority upon the court to grant a divorce for matters already past, and which at the time they occurred were not a recognized ground of divorce, was a retrospective law within the meaning of the Constitution. In that case the court says: 'A law may be retrospective in its operation, if it affect an existing cause of action, or an existing right of defense, by taking away or abrogating a perfect existing right, although no suit or legal proceeding then exists. Of course it is not intended to deny the right of the legislature to vary the mode of enforcing the remedy; or to provide for the more effectual security of existing rights. * * * The statute of limitations may be changed by an extension of the time, or by an entire repeal, and affect existing causes of action, which by the existing law would soon be barred. In such case the right of action is perfect, and no right of defense has accrued from the time already elapsed. But if a right has become vested and perfect, a law, which afterward annuls or takes it away, is retrospective.'

In Rich v. Flanders, 39 N.H. 307, the court asserts that the term retrospective, like the term ex post facto, is a technal term, and that while the latter applies only to criminal cases, and to those only in a particular way, so the former technically applies only to civil cases, and to those only in a particular way; that if a statute in form affects the remedy only, yet substantially taken away accrued rights it is unconstitutional and void. The court in this case recognizes the authority of the legislature to modify...