Monroe Loan Soc. of N.H. v. Nute

• Decision Date: 03 March 1936
• Parties: MONROE LOAN SOC. OF NEW HAMPSHIRE v. NUTE.
• Court: New Hampshire Supreme Court

183 A. 703

MONROE LOAN SOC. OF NEW HAMPSHIRE

v. NUTE.

Supreme Court of New Hampshire. Hillsborough.

March 3, 1936.

Transferred from Superior Court, Hillsborough County; Burque, Judge.

Action by the Monroe Loan Society of New Hampshire against Virginia Nute. Verdict for plaintiff, and case transferred on defendant's exceptions.

Judgment on the verdict.

Assumpsit on a promissory note. It bore interest at a rate permitted by a statute (P.L. c. 269, § 15), but not at one allowed by an amendment to the statute (Laws 1933, c. 129). The amending act took effect upon its passage. It became law on the day the note was given and the indebtedness therefor created. It was found that the time of day when the amendment was approved by the Governor could not be ascertained, and there was no evidence of the time of day when the note was delivered. The plaintiff made the loan in the belief that the statute which was amended was in force and acted in good faith.

The defendant's exception to a referee's verdict for the plaintiff was transferred without ruling by Burque, J.

Albert J. Lemieux, of Manchester, for plaintiff.

James A. Broderick, of Manchester, for defendant.

ALLEN, Chief Justice.

By the State Constitution (Const, pt. 2, art. 44), "every bill which shall have passed both houses of the general court shall, before it become a law, be presented to the governor, if he approve, he shall sign it." Until thus signed the bill is not a law.

There being no record or other evidence to show whether the transaction between the parties was governed by the act amended or by the amendment, no logical conclusion of fact can be drawn to determine the issue. In respect to fact, all that can be said is that one law or the other is applicable. No balance of probabilities exists one way or the other. And, one law or the other being in force to govern the transaction, the conclusion that neither law governs because the applicable one is not in fact ascertainable does not follow. This would be in defiance of the fact.

To say that the law cannot be stated because of failure of its proof would be to disregard the authority and duty of the courts to adjudicate litigation according to the law. The law is not to fail, but is to be declared. And the unwritten law has virtue by which the written law may be asserted. Commonlaw principles, not designed to ignore fact, but established to meet the impossibility of finding it, are to be employed. If the result does not accord with the fact, no evidence can be offered that such is the result. Although the record and evidence of the exact time of the passage of the amendment are lacking, inability to administer justice between the parties does not follow. Resort to recognized legal principles and procedure leads to a legal determination of the sequence between the issuance of the note and the passage of the amendment, without involving a conjectural finding of fact.

The Constitution and legislation making no provision for exact ascertainment of time and the executive department having no system for determining it, it is fairly to be held that the lawmakers intended that the courts shall apply common-law rules for the ascertainment in controversies between litigants. Even although thereby the sequence in one situation may be held to be reversed in another, there is no incongruity in holding a statute applicable in some instances at a given time, but not in others until a later time. It is conceivable that in another case there might be proof of a reversed sequence. It is equally consistent that different circumstances might call for such a reversal under the application of legal principles. Therein, in final analysis, the margin of variation is of application of controlling rules, and not of time. The time, although unknown, is fixed, but application of rules to varying circumstances may produce varying results. It is not to be regarded that the law is in force throughout the day of its passage, but with the amended law remaining in force during that day as to transactions in which serious injustice would be done if its repeal or change were fully operative. But the principles by which the secondary burden of proof shifts may lead to such an outcome.

As usually phrased, the law disregards fractions of a day in considering the time of passage of a statute when the exact time is not shown. Since the passage of the statute is at some time during the day, the day is the day of passage, and it is held, as a general rule, that the statute is law from the beginning of...