Stewart ex rel. Johnson v. Griffith

• Decision Date: 31 October 1862
• Citation: 33 Mo. 13
• Parties: DANIEL A. STEWART, GUARDIAN OF JAMES M. JOHNSON, MARY E. JOHNSON, AND EMILY F. JOHNSON, Plaintiffs in Error, v. ENOCH H. GRIFFITH, Defendant in Error.
• Court: Missouri Supreme Court

33 Mo. 13

DANIEL A. STEWART, GUARDIAN OF JAMES M. JOHNSON, MARY E. JOHNSON, AND EMILY F. JOHNSON, Plaintiffs in Error,

v.ENOCH H. GRIFFITH, Defendant in Error.

Supreme Court of Missouri.

October Term, 1862.

Error to Marion Circuit Court.

A. W. Rush, T. L. Anderson, and Glover & Shepley, for plaintiffs in error.

I. It can hardly be contended that the act is unconstitutional as being either an ex post facto law, or as a law impairing the obligation of contracts, or that it is retrospective in its operation. It is not an ex post facto law, if for no other reason, because this clause has been decided, over and over again, to apply only to criminal matters.

It is not a law impairing the obligation of contracts, because there is no contract about the subject matter. It is not retrospective. Judge Story, in the case of the Society, &c., v. Wheeler, 2 Gall. 139, gives the definition of a retrospective law.

II. The act of the Legislature is not unconstitutional as being the exercise of a judicial power. (Rice v. Parkman, 16 Mass. 326.)

The whole matter is fully discussed in the case of Davidson v. Johannot, 7 Met. 388. (See, also, Sobier v. Massachusetts Hospital, 3 Cush. 483; Mason v. Wait, 4 Ill. 127; Estep v. Hutchman, 14 Serg. & R. 435.)

III. It cannot be maintained to be unconstitutional on the ground that it is against public policy, or beyond the legitimate exercise of proper legislative power, or as being the passing of a special act for the benefit of particular individuals apart from, and antagonistic to, the general law regulating the particular subject. (Hovies v. Clymer, 2 Barr, 277.)

So, also, in Sergeant v. Kuhn, 2 Barr, 293--which was the case of a devise to trustees to hold for A. during life, with remainder over, with power in the tenant for life to sell on irredeemable ground rents--an act of Legislature authorized tenant for life to sell on redeemable ground rents, held constitutional. (Williamson et al. v. Williamson et al., 3 Smedes & M. 715; Carrol et al. v. Olmstead et al., 16 Ohio, 251; Blagge v. Miles, 1 Story, 427; Cochran v. Van Surley, 20 Wend. 365; Wilkinson v. Leland, 2 Pet. 657; Watson v. Mercer et al., 8 Pet. 88.)

What did this act profess to do? In the first place, it undertook to make these minors, children of W. C. Carr, of full age.

I have not found, in my examination, a doubt thrown out of the power of the Legislature over the matter, nor can I conceive how a plausible argument can be formed against the constitutionality of such a power. It interferes with no rights of property; it impairs no contract; it is not judicial, not retrospective, nor ex post facto. It was exercised by our Legislature when the common law was first adopted here by making all of age between the ages of twenty-one and twenty-five, which was then the time of full age; it has been exercised repeatedly in other States in making females of age at the age of eighteen years; it has been exercised, also, in individual instances, for the purpose of enabling the child to receive its own earnings, and relieving the parent from the burden of its support. It is simply a question of social regulation; and no question of the entire control of the Legislature over the subject matter has ever been mooted, except in the case of 4 N. Hamp. 572, which was no judgment upon a case upon argument, but the answer to a query of the Legislature.

IV. The subject matter is not, by this act, taken from the range of judicial cognizance and judicial judgment. It is simply turning realty into personalty; makes no person of full age, and expressly gives to the County Court the power to approve or reject all sales that may be made. The sale, in order to be valid, must have the judicial judgment of the court.

We need scarcely call to the attention of the court the fact that this legislative power has been exercised in this State from an early period, and that vast amounts of land are held upon titles emanating from these acts of the Legislature. A single glance at the index of any volume of the Session Acts will satisfy the court on that head.

Lipscomb, for defendants in error.

I. The act of the Legislature relied upon is, in its nature, a judicial sentence, a judgment or decree, rather than a rule of action--is an infringement of the judicial department of the government, and therefore in conflict with the second article of the constitution of the State, and inoperative and insufficient to enable the plaintiff to convey defendants any title to the lands sold. (4 Mo. 120, State v. Fry et al.; see opinion of the judges of the Superior Court of Judicature of New Hampshire to the General Assembly of that State; 4 N. H. 572 and following, where the very point now under consideration is discussed; Pierce's heirs v. Pallon et al., 7 B. Mon. 162.)

We are aware that in some of the States acts of this sort have been held constitutional, and the deed of the appointee of the power operative to pass the title. (Rice et al. v. Parkman, 16 Mass. 326; Davidson v. Johannot, 7 Met. 388; Sobier v. Mass. Gen. Hos., 3 Cush. 483; Cochran v. Van Surley, 20 Wend. 365.)

In this last case, while the validity of the law is declared, yet the question seems not to have been made or considered as to whether the Legislature, in the passage of the act, did not infringe the judicial power.

II. The order of the County Court being made under the special act, and not under the general law, does not help the matter. The act was in the nature of a writ of mandamus upon the court, and the order of the court was mere submission to the legislative mandate; it was not the result of the exercise of judicial consideration, but the execution of a decree or sentence of another tribunal assuming judicial power. But for the special act, the court would not have made the order of sale; otherwise, why resort to the Legislature in the first instance?

The order of sale, then, not being the result of judicial consideration, it, like the act of the Legislature, is insufficient authority by which to divest the wards of their title.

If these positions be tenable, the instructions and motion for new trial were properly refused. (Priv. & Loc. Acts of 1855; 4 Mo. 120; 4 N. H. 572; 16 Mass. 326; 7 Met. 388; 3 Cush. 483; 20 Wend. 365; 7 B. Mon. 162.)

BATES, Judge, delivered the opinion of the court.

By an act of the General Assembly, passed on the 17th day of November, 1855, it was enacted as follows:

“SECTION 1. Daniel A. Stewart, guardian of the persons and curator of the estate of James M. Johnson, Mary E. Johnson and Emily F. Johnson, minor heirs of William Johnson, deceased, is hereby authorized and empowered to sell all the real estate belonging to said minors in Marion county, in the State of Missouri, subject to the approval of the County Court of said county of Marion.

SEC. 2. The County Court of Marion county is hereby authorized and required to make an order for the sale of the west half south-east quarter of section twenty-one, and the west half north-east quarter, and the north-east fourth of the north-east quarter of section twenty-nine, all in township fifty-seven, of range seven west, with the appurtenances thereunto belonging, and prescribed the mode of appraising and selling the said real estate.

SEC. 3. Said real estate shall not be sold for less than three-fourths of its appraised value, or the amount at which the same shall have been appraised.

SEC. 4. Upon the payment of the purchase money for said real estate the said Daniel A. Stewart is hereby authorized to make a deed to the purchaser or purchasers thereof, to be acknowledged before the said County Court of Marion county, conveying all the right of said minors in and to said real estate to the purchaser or purchasers thereof.

SEC. 5. Said Stewart shall make a full report of his proceedings as to the appraisement and sale of said real estate to said County Court, and if the same be approved by said court, an order shall be made by said court accordingly; and if such proceedings be not approved by said court, the same shall be null and void; and the court shall, upon the application of said Stewart, make another order for the sale of said real estate, containing the same requirements as hereinbefore specified.

SEC. 6. The money arising from the sale of said real estate, or so much thereof as may be necessary, shall be applied, under the direction of said County Court of Marion county, to the support, maintenance and education of said minors: Provided, however, that said money shall be loaned out at legal interest, and shall be used for the purposes aforesaid only, in such sums as may, from time to time, be required.” (See Private and Local Acts of Missouri, Adj. Sess. 1855, p. 395.)

Stewart, acting in pursuance of that law, and under the order of the County Court of Marion county, sold the land mentioned in the second section to the defendants, who paid a portion of the price bid and gave notes for the remainder, and this suit is brought for the recovery of the amount of the notes.

The defendants say that the notes are without consideration, because Stewart had no power or authority to sell said land.

The court below sustained that defense and gave judgment against the plaintiff, who appealed to this court.

The only question presented for our consideration is as to the power of the Legislature to authorize Stewart to sell the land of his wards.

It is insisted by the defendants that the power exercised by the General Assembly in passing the act quoted is of a judicial character, and therefore void, because it is in conflict with the constitution of the State. The question presented is of very great interest--firstly, because of the important principles involved in its consideration; and secondly, because of the number of estates which have been transferred under similar laws passed by the General Assembly.

Whilst it is the duty of the judiciary to construe statutes, and, if they be found to be in violation of the constitution...