State v. Griffin

• Decision Date: 27 July 1894
• Citation: 186 A. 923
• Parties: STATE v. GRIFFIN.
• Court: New Hampshire Supreme Court

186 A. 923

STATE

v. GRIFFIN.

Supreme Court of New Hampshire. Rockingham.

July 27, 1894.

DOE, Chief Justice.:

Law "is a rule: not a transient sudden order from a superior to or concerning a particular person; but something permanent, uniform, and universal. Therefore a particular act of the legislature to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of a municipal law: for the operation of this act is spent upon Titius only, and has no relation to the community in general; it is rather a sentence than a law." 1 Bl.Com. 44.

In some states, the growing evil of special legislation has been met by a constitutional amendment prohibiting it in cases for which provision can be made by general law, and requiring that laws of a general character be made by general law, and requiring that laws of a general character shall have a uniform operation throughout the state. Cooley, Const.Lim. 152 n. 1, 129. In this state legal effect has been given to the general declarations of the bill of rights in which uniformity and equality are laid down as a rule of government, and such an amendment would be a mere enactment of our settled construction.

In 1827, the justices, answering a question proposed by the House of Representatives, expressed the opinion that "the legislature cannot authorize a guardian of minors, by a special act or resolve, to make a valid conveyance of the real estate of his wards." "Under our institutions all men are viewed as equal, entitled to enjoy equal privileges, and to be governed by equal laws. If it be fit and proper, that license should be given to one guardian, under particular circumstances, to sell the estate of his ward, it is fit and proper that all other guardians should, under similar circumstances, have the same license. This is the very genius and spirit of our institutions. And we are of opinion, that an act of the legislature to authorize the sale of the land of a particular minor, by his guardian, cannot be easily reconciled with the spirit of the article in the bill of rights which we have just cited," Opinion of the Court, 4 N.H. 565, 573, 574. Notwithstanding the prevalence of a different view elsewhere (Cooley, Const. Lim. 115, 122), the opinion given in 1827 has been accepted in this state as sound, and the reasoning on which it was based has been applied to other classes of cases. McDuffee v. Portland & Rochester Railroad, 52 N.H. 430, 454, 455, 13 Am.Rep. 72; Town of Greenville v. Town of Mason, 53 N.H. 515, 518; Bowles v. Landaff, 59 N.H. 164, 194, 195; Gould v. Town of Raymond, 59 N.H. 260, 275, 278; State v. United States & Canada Express Company, 60 N.H. 219, 236, 238, 250, 251, 256; Wooster v. Plymouth, 62 N.H. 193, 217; State v. Pennoyer, 65 N.H. 113, 114, 115, 117, 18 A. 878, 5 L.R.A. 709.

REPORTER'S NOTE.—The opinion referred to is to be found in 191 Briefs & Cases (N.H.) 181. Chief Justice Doe wrote it in 1896 while the case of State v. Griffin, 69 N.H. 1, 39 A. 260, 41 L.R.A. 177, 76 Am.St.Rep. 139, not decided until after his death, was under consideration. By the decision his views were not accepted as applicable to the facts of the case, but his exposition of the constitutional principle of equality has since been cited and quoted in a number of cases. In re Opinion of the Justices, 73 N.H. 625, at page 632, 63 A. 505, 6 Ann.Cas. 689; Williams v. State, 81 N.H. 341, at page 352, 125 A. 661; Eyers Woolen Co. v. Gilsum, 84 N.H. 1, at page 26, 146 A. 511, 64 AX. R. 1196. For convenience of reference, the opinion, although it has no judicial character, is here published in full.

A lack of uniformity may result from the exercise of limited powers of local government granted to towns and cities. Cooley, Const.Lim. 207, 223-231, 281, 282; State v. Hayes, 61 N.H. 264; Lewis v. Webb, 3 Greenl. (3 Me.) 326; Wally's Heirs v. Kennedy, 2 Yerg. (Tenn.) 554, 24 Am.Dec. 511, both quoted in Cooley, 483, note 2. How far a lack of uniformity can be introduced in this way, is a question not raised in this case. The delegation of such powers assumes that by their exercise and nonexercise different municipalities may, to some extent, be governed by different laws. Something prohibited in Portsmouth may be prohibited in Concord under a greater or less penalty. Blowing horns and bugles, tolerated in Nashua, may be suppressed in Manchester. Slaughterhouses may be regulated in Rochester in a manner unknown in Kecne. Whatever may be the limit of such diversities under local law, they are not tests or samples of equal rights under general law. If they were, petty larcenies and assaults, made penal offences in the county of Merrimack, might be lawful recreations in Rockingham. Felonies in Coos might be misdemeanors in Cheshire. Murder in the first degree, punished by death in Claremont, might be punishable by nothing more than a nominal fine, or not punishable at all, in Dover. In a case tried not long ago in the county of Strafford, the question whether the defendant was punishable by death or imprisonment depended upon the issue whether an undoubted murder was committed in New Hampshire or Maine. With no requirement of uniformity, there might be ten systems of criminal and civil law in our counties; there might be hundreds of complete codes of so-called New Hampshire State law (one for each town), governing all the relations and rights and duties of mankind, and as different as the laws of Maine, Georgia, Mexico, Europe, Asia, and Africa. If the state could be legally reduced to this condition, we should search the constitution in vain for a clause forbidding the enactment of hundreds of thousands of codes, one for each family or person, with all possible differences and contrarieties. It might be enacted in express terms that the malicious and premediated killing of A by B should be a capital offence, and that the similar killing of B by A should not be criminal. There is no difference, in legal or constitutional principle, between such a statute and the act of 1891 on which this defendant is prosecuted; and no sound distinction can be established between the two cases. Instead of equal rights, there could be all the inequalities that human ingenuity could devise.

This would not be a state of law in the sense explained by Blackstone, and by the reservations of the bill of rights which limit and define the legislative power vested in the senate and house by the second article of the Constitution. Without uniformity there is no equality. Without equality there is no law in the constitutional sense in which the word "law" is used in this state. This sense has been so often declared here and so long and so vigorously maintained, that it cannot be considered an open question, except in a constitutional convention where a proposed revolution in the fundamentals of government can be properly discussed. There may be exceptional cases, and questions of the application of the principle of a degree of uniformity indispensable to equal rights; but the general rule as a principle of state legislation must be regarded as settled.

The common law is uniform. A right to make a reasonable use of brooks and rivers is a part of the land title of all riparian proprietors. The tributaries of Lake Massabcsic are not an exception. The defendant, as assignee of a lease of a mill privilege on a brook that flows into the lake, has the rights of a riparian proprietor. A right to make a reasonable use of the brook, during his term, is a part of his interest in the land. At common law, between him and persons exercising their right to a reasonable use of the lake, or of the stream flowing from the lake, the question whether his throwing sawdust into the brook was a reasonable use of the brook is a judicial question of fact. Hayes v. Waldron, 44 N.H. 580, 84 Am.Dec. 105; Green v. Gilbert, 60 N.H. 144. What might be reasonable on a brook running through an uninhabited country into the ocean might be unreasonable on a tributary of the lake from which the people of Manchester obtain the water they use for domestic purposes. If his sawdust became a nuisance, there would be ample remedy in equity without a statute. The elementary law laid down in State v. Saunders, 66 N.H. 39, 81, 25 A. 588, 18 L.R.A. 646, affords ample protection for Manchester, and that without delay. But on a bill in equity, as in a suit at law, the defendant is entitled to be heard before the value of his property is seriously impaired by a judgment. The opportunity to be heard, which is a part of the definition of a judicial proceeding by which rights are determined, is not an element of legislation. Statutes can be enacted without a hearing and without notice. In re School-Law Manual, 63 N.H. 574-576, 4 A. 878; Opinion of the Court, 63 N.H. 625. If one of two riparian proprietors, A, can obtain a perpetual injunction from the legislature against the use made by his neighbor, B, of a stream flowing through their lands on the ground that the use is unreasonable, how can it be held that all judicial questions, are not determinable in the same way? It is a course that has great advantages for favored and powerful persons. One who can obtain final judgments against his neighbors ex parte occupies a peculiar position. If all judicial questions can be decided by the Legislature, they can be decided without either party being heard, and the theory of legal rights hitherto supposed to be indisputable gives way to the doctrine that any one having a judicial question with his neighbor has a choice of remedies. He can go to court, have the defendant notified to appear where a fair trial can be had, or he can apply to the Legislature who can if they choose, without a trial, render a decision in the form of a statute that will be as conclusive as a judicial judgment. It is not enough to show that the system is the logical result of decisions in other jurisdictions. It is necessary to show on what New...