Falconer v. Simmons

• Decision Date: 15 March 1902
• Citation: 41 S.E. 193,51 W.Va. 172
• Parties: FALCONER v. SIMMONS.
• Court: West Virginia Supreme Court

41 S.E. 193

51 W.Va. 172

FALCONER v. SIMMONS.

Supreme Court of Appeals of West Virginia.

March 15, 1902

Syllabus by the Court.

1. The writ of certiorari, properly so considered, does not lie from the judgment of a justice upon the verdict of a jury, but an appeal was always the proper remedy. However, such writ of certiorari, by liberality in mere matter of procedure, may be treated as an appeal.

2. An overruled decision is regarded not law, as never having been the law, but the law as given in the later case is regarded as having been the law, even at the date of the erroneous decision. To this rule there is one exception,--that where there is a statute, and a decision giving it a certain construction, and there is a contract valid under such construction, the later decision does not retroact so as to invalidate such contract.

Error to circuit court, Roane county; Reece Blizzard, Judge.

Action by S. A. Falconer against J. M. Simmons. From a judgment of the circuit court reversing a judgment of a justice, Simmons brings error. Affirmed.

Walter Pendleton and Vandale & Starkey, for plaintiff in error.

J. G Shilling, O. J. Chambers, and S.E. Boggess, for defendant in error.

BRANNON J.

In an action before a justice in Roane county a judgment was given upon the verdict of a jury, and then the judge of the circuit court awarded a writ of certiorari. There was a motion to quash that writ in the circuit court, but it was overruled and judgment rendered reversing the judgment of the justice setting aside the verdict of the jury, awarding a new trial, and retaining the case in that court for a new trial. The action was by S. A. Falconer against J. M. Simmons. Simmons has brought the case to this court by writ of error.

The writ of certiorari was awarded and judgment rendered upon it while the case of Barlow v. Daniels, 25 W.Va. 512 was still in force, before it was overruled by the case of Richmond v. Henderson, 48 W.Va. 389, 37 S.E. 653. The former case held that an appeal would not lie from the judgment of a justice rendered upon the verdict of a jury, but that certiorari was the proper remedy; whereas in the later case it was held that a writ of certiorari would not lie in such a case, but that an appeal was the proper remedy. Therefore this case presents this question: Is the writ of certiorari good on the ground that when sued out it was good according to the case of Barlow v. Daniels, or is it rendered abortive and ineffectual by the subsequent case of Richmond v. Henderson overruling Barlow v. Daniels? Has Simmons a vested right to his writ of certiorari, so that the later decisions could not affect that writ? A person has no vested right in a particular remedy. The first decision in Barlow v. Daniels cannot be appealed to, to sustain the writ of certiorari, because when a decision is overruled it is regarded as never having been the law for a moment, but, on the contrary, the law as given by the later decision is held to have been the true, sound law at the very moment when the first erroneous decision was pronounced. 1 Bl. Comm. 70, lays down the long-standing elementary rule as follows: "But even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision be manifestly absurd or unjust, it is declared, not that such a sentence is bad law, but that it was not law." This subject is discussed at large in an opinion written by me in Town of Weston v. Ralston, 48 W.Va. 188, 36 S.E. 446, as also in an opinion written by Judge Poffenbarger in Harbert v. Railroad Co. (decided January, 1902) 41 S.E. 377. I will add some further authorities upon the subject. In Hibbits v. Jack, 97 Ind. 570, 49 Am.Rep. 478, a will gave a wife land, "as long as she remains my widow." This provision was held to vest a fee in the wife by one decision. The widow sold the land on the faith of that decision, but afterwards this case was overruled, and it was held that a widow did not take a fee under such a will. The syllabus in the case reads thus: "A decision of the supreme court afterwards overruled is not a general rule of property, even as to purchases made on the faith of it before it was overruled. It is only the law of that case binding the parties to it, and those claiming under them, as to the matters involved in that suit." The court said that the decisions of courts, "are not law, but only evidence of the law." In Paul v. Davis, 100 Ind. 422, was a question involving title to land, and it was held that judicial decisions are not of themselves the law, and one cannot hold as a bona fide purchaser merely on the ground that former decisions have declared the law as claimed by his grantor. The court said: "A judicial decision does not make unalterable law, nor is it the law in the sense that statutes are law. It was justly said by Senator Platt, in Yates v. Lansing, 9 Johns. 415, 6 Am.Dec. 290, 'that the decisions of courts are not the law; they are only evidence of the law.' In another case it was said: 'I hope we shall consider what a decision really is, and treat it accordingly; not as the law, nor as giving the law, but simply evidence of the law, and not conclusive evidence, but only prima facie evidence of what the law is.' Henry v. Bank, 5 Hill, 535." The court goes on to say that decisions that are erroneous may be overruled, citing eminent authority, and saying, when overruled, that they never were the law. The case of Lewis v. Symmes, 61 Ohio St. 471, 56 N.E. 194, 76 Am.St.Rep. 428, is an important case. Acts allowing assessments on property owners for local improvements were held valid by the supreme court. Then came a new act, valid under those decisions; then improvements were made by the city; then came a decision overruling the former cases, and holding the statute allowing the assessments to be unconstitutional. The court held that the rule that retrospective operation should not be given to a change in judicial opinions respecting the constitutional validity of legislative enactment can be invoked only to avoid the impairment of the obligation of contracts made prior thereto, pursuant to statutory provisions, and in reliance upon former adjudications respecting their validity. The court said that judicial decisions declare, but do not make, law, and held that the rule that decisions do not retroact applies to rights resting in contracts. The court said that an accurate statement of the rule was that made by Chief Justice Waite, in Douglass v. Pike Co., 101 U.S. 677, 25 L.Ed. 968. "The true rule is to give a change of a judicial construction in respect to a statute the same effect in its operation on contracts and existing contract rights that would be given to a legislative amendment; that is, make it prospective, but not retroactive. After a statute has been settled by judicial construction, the construction becomes, so far as contract rights acquired under it are concerned, as much a part of the statute as the text itself, and a change of decision is to all intents and purposes the same in its effect on contracts as an amendment of the law by means of a legislative enactment." The court added that "this was the true interpretation of Gelpcke v. City of Dubuque, 1 Wall. 175, 17 L.Ed. 520, and like cases, and refused to apply the rule to the case before the court, because the ruling can be invoked only for the enforcement of the rights which rest in contracts. It does not appear that it has ever been applied to any other purpose." The Indiana decisions admit the rule that overruled cases never were law, but they make an exception of the cases construing statutes as to contracts resting on the first construction of the statute, holding valid these contracts existing prior to later overruling cases. Cases cited above, and Thompson v. Henry, 153 Ind. 56, 54 N.E. 109. The case of Ray v. Gas Co., 138 Pa. 576, 590, 20 A. 1065, 1067, 12 L.R.A. 290, 21 Am.St.Rep. 922, is pointedly to the same effect. The opinion says: "Courts of highest authority of all the states, and of the United States, are not infrequently constrained to change their rulings upon questions of the highest importance. In so doing the doctrine is, not that the law is changed, but that the court was mistaken in its former decision, and that the law is, and really always was, as it is expounded in the later decision. The members of the judiciary in no proper sense can be said to make or change the law. They simply expound, and apply it to individual cases. To this general doctrine there is a well-established exception, as follows: After a statute has been settled by judicial construction, the construction becomes, so far as contract rights are concerned, as much a part of the statute as the text itself, and a change of decision is, to all intents and purposes, the same in effect on contracts as an amendment of the law by means of a legislative enactment. Douglass v. Pike Co., 101 U.S. 677, 25 L.Ed. 968." This agrees with the Ohio and Indiana view. The opinion says "that this exception to the general rule relates, not to the general law, but to statute law"; that is, that, where the first decision applied to and construed a statute, contract rights under that statute were such as it conferred, tested by the first decision; but this does not apply to unwritten common law, or to any but contract rights. As to contracts, the construction of the statute by the first decision is part of the contracts. It was held that a case overruling a former one, and thus affecting prior oil leases, must test rights under it, on the ground that a decision of a court was not a "law" impairing contracts. In Bradshaw v. Mill Co., 52 Minn. 59, 53 N.W. 1066, the syllabus is: "An...