Parsons v. Russell

• Decision Date: 13 January 1863
• Citation: 11 Mich. 113
• Court: Michigan Supreme Court
• Parties: Philo Parsons and another v. George B. Russell and another

11 Mich. 113

Philo Parsons and another v. George B. Russell and another

Supreme Court of Michigan

January 13, 1863

Heard May 29, 1862; May 30, 1862 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Wayne Circuit.

Plaintiffs in error brought action upon a bond given by defendants in error for the release of the steamer Illinois, which had been seized under the boat and vessel law, so called (chapter 149, of Compiled Laws), on a warrant issued by T. S. Blackmar, a Circuit Court Commissioner of Wayne county. The bond was conditioned for the payment to plaintiffs in error of the sum of $ 761.96, the amount of their claim for which the boat was seized.

The defendants demurred to the declaration, assigning several special causes; but as the constitutionality of the boat and vessel law was the only question considered by this court, an abstract of the pleadings is not given. The Circuit Court gave judgment for defendants.

Judgment affirmed, with costs.

Maynard & Meddaugh, for plaintiffs in error:

1. The act is presumed to be constitutional, and, unless satisfied beyond all serious doubt of its conflict with some provision of the Constitution, the court must sustain it: Sears v Cottrell, 5 Mich. 252; People v. Tyler, 8 Mich. 320; 1 Mich. 176 and 508; 4 Mich. 244.

The defendants claim that the section of the boat and vessel law, which provides for the sale before the claimants' demand has been adjudicated, infringes that article of the Constitution which provides that "no person shall be deprived of life, liberty, or property, without due process of law."This involves the question, what is due process of law? The provision came from Magna Charta. The evil which it was intended to remedy was to prevent the king from causing his subjects to be imprisoned and their property confiscated without any regard to legal forms or usages. It was forced from him to prevent the future exercise of such illegal and oppressive power.

In construing any law we must look at the mischief or evil which it was intended to remedy. Applying this rule, "due process of law" could only have been intended to prohibit special acts of the Legislature, and not a law general in its application and affecting the rights of all alike. Such was the construction given to this provision in the case of Sears v. Cottrell; Ervine's Appeal, 16 Penn. 256; Matter of John and Cherry Streets, 19 Wend., and numerous other cases.

2. There is quite a number of cases that give to the words "due process of law" a different construction, and hold that they mean a trial before some judicial tribunal, and the rights of the parties first settled. Judge Curtis, in 18 How. 276, says, we must look to the settled usages and modes of proceeding existing in the common and statute laws of England, before the emigration to this country, to ascertain their meaning, unless they are defined in the Constitution; and holds that such a construction as was given to them in Sears v. Cottrell makes the provision a nullity. If he is correct, then the people, by the adoption of the Constitution, have deprived themselves of the power to pass any law that materially changes the judicial proceedings then in use.

If they mean a trial before some magistrate or judicial tribunal, and the rights of the parties first settled by a judgment, then many of our special statutory proceedings must be condemned. Our attachment process is unknown to common law, and under it, the defendant is deprived of the possession and use of his property before trial or judgment. If the attachment law is constitutional and this is not, then, to deprive a person of the possession, use and control of his property before judgment, is "due process of law," but to go a step further and sell the property is not "due process of law." The statute providing for the sale, on the order of the court, or a judge thereof, of animals or perishable property taken in attachment, is open to every objection that can be urged against the law in question.

The fact that the sale of perishable property when attached is necessary, as well for the interests of the debtor as the creditor, only goes to the policy of the act, and not to the power of the Legislature. The limitations or restrictions upon the law-making power do not yield to any considerations of expediency or necessity. There is no soundness in the argument that the construction given to the words "due process of law" in Sears v. Cottrell, renders the limitation a nullity. It prohibits the passage of any special law to affect injuriously the rights of particular individuals, as such. Such a law would manifestly not be "the law of the land." A proper definition involves the idea of generality--it being the law of the land in contradistinction to the law of individuals. The controversy in reference to the meaning of this clause--"due process of law"--had its origin, no doubt, in the fact that not unfrequently harsh, cruel and oppressive laws have come before the courts of the several States, and seeing no other remedy in the Constitution, this provision has been construed into a sort of all-healing ointment. But it is said if "due process of law" is to have the meaning we seek for it, then the Legislature have absolute power; that they have only to make their acts general and they must be submitted to. If this would be so, it should have no influence on the construction of this or any other provision of the Constitution. The Constitution vests in the Legislature the entire law-making power, subject to the limitations therein specified. They are the direct representatives of the people, the delegates of their power, and, except for the limitations of the Constitution, are as absolute in power within their proper sphere as the people themselves. But the proposition does not follow from the construction we claim. The law must not infringe any of the limitations of the Constitution, whether directly expressed, or necessarily implied from the positive duties enjoined. A law perhaps utterly repugnant to justice and reason might be treated as a nullity--especially if the decision of our courts furnished any fixed and certain standard that such was its character. To hold that an act of the Legislature is void because the power which would authorize its passage would also authorize the passage of some supposable ridiculous enactment, is a most unjudicial and dangerous mode of reasoning. But if the Constitution furnishes no safeguard against such legislation, let us not seek a remedy more dangerous than the evil itself. An unauthorized construction of the Constitution to meet some extreme case, would furnish much greater cause for anxiety than any general legislative act.

The boat and vessel law was in existence in this State long before the adoption of our present Constitution, and was copied from the statutes of a neighboring State, where it has been in operation for many years, and its constitutionality appears never before to have been questioned, either there or here. This should lead the court, before pronouncing the law void, to examine carefully, lest its apparent harshness should carry them beyond the true province of their duty. There is no conflict between this act and the act of Congress of 1845, as the latter expressly reserves to the parties the right to every concurrent remedy given by the State law.

But even if the law is unconstitutional, the defendants having voluntarily given the bond to secure the release of the vessel are estopped from denying the validity of the process: 2 W. & S., 517; 14 B. Monr., 41; 1 Black. 331; 21 Wend. 337; 3 Hill 47.

A. Russell, for defendants in error:

The boat and vessel law is unconstitutional.

1. As against common right and the law of the land, because it deprives a man of his property without due process of law.

It provides (§§ 18, 23) that the vessel shall be sold, unless bonded, after three months' advertisement, and that the proceeds shall be brought in for distribution. Then, and not till then, is an opportunity given to contest the demand of the plaintiff. The defendant has no day in court, no opportunity to be heard, until his property is taken away from him.

The principle involved in the sale of perishable articles furnishes no analogy. Take the case of a vessel owned in Oswego, seized here, and a failure to procure bondsmen through want of acquaintance or property in this State. The representative of an investment of $ 50,000 may rot for three months, on a baseless claim, and the owner may have the satisfaction of receiving at last from the commissioner a pittance brought on a forced sale, less the costs See Const., Art. VI, § 32; U.S. Const. Amendments, Art. V; Magna Charta, §§ 29, 46; Coke, 2 Inst. 46; Sedg. Stat. & Const. L., 534, 610; 2 Story Const., § 3789; Ervine's Appeal, 16 Pa. St., 256; 4 Dev. 15; 10 Yerg. 59; 18 How. 272.

The remarks of the court in Sears v. Cottrell, 5 Mich 254, I submit, do not conflict with this view. The mere fact that a law is a general law, operating upon all alike, is not, of itself, inconsistent with its being a law which deprives a man of his property without due process of law. A law, for instance, declaring that no evidence should be given on the part of the defendant in any court in this State, would certainly be a general law, and yet glaringly unconstitutional. The law of the land is not only a general law, but "a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial." Now, this law hears the complaint only, and then condemns property to be sold before inquiry and before trial. To be sure, it stops short of handing over the proceeds to the plaintiff, but it deprives the...