Winter v. Jones

• Decision Date: 31 July 1851
• Docket Number: No. 27.,27.
• Citation: 10 Ga. 190
• Parties: John G. Winter, plaintiff in error. vs. Seaborn Jones,defendant in error.
• Court: Georgia Supreme Court

10 Ga. 190

John G. Winter, plaintiff in error. vs. Seaborn Jones, defendant in error.

No. 27.

Supreme Court of the State of Georgia

JULY TERM, 1851.

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Ejectment, in Muscogee Superior Court. Tried before Judge Iverson, May Term, 1851.

This suit was brought by Jones, to recover fractional lot, (No. 10,) in 7th district of Muscogee. The plaintiff claimed under a grant issued in 1849, to him as purchaser, under a sale authorized by the Act of 1847, entitled " an Act to authorize the Governor to appoint fit and proper persons to sell and dispose of the undrawn lots in the Land Lotteries heretofore had in this State, and to limit the time for fraction purchasers to pay for, and to take out grants for fractions." For Act, see New Dig. p. 709. It was agreed that Winter was in possession, and the rent was worth $600; that the fraction was sold in 1828, and purchased by Seaborn Jones, Esq. for $1500, and all of the instalments paid previous to the sale of reverted fractions, in 1834; that Jones transferred the certificate to Ingersoll, who conveyed to Winter, prior to the passage of the Act of December, 1847.

Defendant then offered to prove by the Sheriff who sold the land under the Act of 1847, " that he did not give the tenant in possession, nor Winter, who lived in Columbus, notice of the intended sale; and that Mansfield Torrence, who was interested with plaintiff in said purchase, before said sale, requested him (the Sheriff) not to give said notice. Also, that the Governor had given Gen. James N. Bethune, who was agent for the State to superintend said sale, instructions to suspend the sale of any fraction where the owner or holder of the certificate would come forward at any time before the sale, and furnish evidence that he had paid up all the purchase money, and pay the said agent the grant fee."

Plaintiff having objected to the evidence, it was rejected by the Court. This is the first error assigned.

Defendant's counsel requested the Court to charge, that the 2d and 3d sections of the Act of 1847 were void, because theycontravene that article in the Constitution, inhibiting the passage of an Act containing matter variant from what is expressed in the title. The Court declined so to charge, and this is the next ground of error assigned.

Defendant's counsel requested the Court also to charge, that the Act of 1847, so far as it provides for the forfeiture and sale of the fractional lot purchased and paid for by defendant, on the sole ground that he had failed to take out a grant, was void, because it is repugnant to the 16th section I. Article of the Constitution of the United States, which provides, " that no State shall pass any ex post facto law, or law impairing the obligation of a contract." The Court declined so to charge, and this is the next ground of error assigned.

H. Holt, for plaintiff in error.

H. L. Benning, for defendant in error.

By the Court.—Lumpkin, J. delivering the opinion.

This is an action of ejectment, for fraction No. 10, in the 7th district of Muscogee County, purchased originally at the sales in 1828, under the provisions of the Act of 22d December, 1827. Seaborn Jones, the defendant in error, became the purchaser, for the sum of $1550; received a certificate, in accordance with the provisions of said Act, and transferred the same to one Stephen W. Ingersoll. The whole purchase money was paid, prior to the passage of the Act of 1834, for the sale of reverted fractions; and the certificate of said sale, with all the instalments duly paid thereon, became legally vested in John G. Winter, plaintiff in error, by sundry mesne conveyances.

Subsequent to that time, to wit: in December, 1847, an Act was passed, by which said fraction was declared, under certain conditions, forfeited to the State, and ordered to be re-sold. It was sold, and Seaborn Jones, the defendant in error, again became the purchaser, and instituted this suit to recover possession of the premises, together with the mesne profits; and a judg-ment was rendered for the same in his favor, in the Superior Court of Muscogee County.

At the trial, counsel for the defendant below requested the Court, among other things, to charge the Jury, that the Act of 1847, so far as it provides for the forfeiture and re-sale of the fractional lot in dispute, on the ground that the purchaser had failed to take out the grant, was void, because repugnant to the 10th section of the 1st Article of the Constitution of the United States, which declares, that " no State shall pass any law impairing the obligation of contracts, " which request was refused. And to this ruling, counsel for John G. Winter excepted, and filed his writ of error to this Court. The only question which I propose to discuss is, the alleged repugnance of the Act of 1847, to the Constitution.

The power of the Judiciary to pronounce against the validity of those laws which contravene the Constitution, however delicate and embarrassing in their exercise, has ceased to be a debatable question in the Courts of the Union. At an early period this power was denied, on the ground that the Judiciary being at most, but a co-ordinate branch of the government, they could not defeat or control the Legislative will, by vacating laws, of the constitutionality of which, one department had no better right to judge than the other.

But the conclusion to which the whole country has come, with a concurrence of opinion and unanimity of sentiment, which leaves no room to doubt its correctness is, that the Constitution is the permanent law of the land; and that all legislative acts which impugn its provisions, are not merely voidable, but absolutely void. That the question was between conflicting laws, one of which must give way and the other stand; and the whole point was, whether the Court, who could execute but one of the laws, had a right to decide whether there was a conflict, and which should yield? That the Judiciary owe a duty to the Constitution above that which they owe to the Legislature, and that when one says one thing and the other a contrary thing, they must obey the Constitution, which is in effect, deciding against the law.

The same section of the Constitution which restrains the individual States from passing any law impairing the obligation of contracts, prohibits them also, from passing any bill of attainder, ex post facto law, from making any thing but gold or other coin a tender in payment of debts, or granting any title of nobility.

Suppose, what I admit is not very likely to happen, that the Legislature should pass an Act of Attainder, against an obnoxious citizen, for treason, or making cotton, or any other thing but gold and silver, a lawful tender; or conferring the title of Marquis or Duke upon some one, for meritorious services rendered the public? Will it be pretended that the Courts could be compellable to execute such laws, against the plain meaning and express words of the Constitution? No one, I apprehend, having a proper sense of the obligations of an oath, will contend for, or defend such a doctrine ! It carries the highest degree of impiety, as well as absurdity, upon its face ! True, these are strong cases; but the manner or degree in which these constitutional inhibitions are violated, can make no difference. See 1 Tuck. Black. appendix, 293, 355.

While, therefore, I shall always feel it to be both my duty and pleasure fairly and patiently to compare legislative Acts, with both the State and Federal Constitutions, and if possible, to reconcile the one with the other, yet, when fully satisfied in my judgment and conscience, that they violate these paramount laws which I have sworn to support, I shall not hesitate to adjudge them nugatory, regardless of the consequences; deriving consolation from the conviction that I have faithfully performed my duty, and that the people will sooner or later do me justice.

Assuming it as a principle, then, that a case may occur, where it may become the duty of the Judiciary to declare a Statute of the State contrary to the Constitution, and where they may be called upon to arrest its execution, we are led to inquire whether the Act in question is of this character?

All the commentators, and all the adjudicated cases upon Constitutional Law, agree in these fundamental propositions: That the objection to a law, on the ground of its impairing theobligation of a contract, does not depend upon the extent of the change which the law may make in it.

That any deviation from its terms, by imposing conditions not expressed in the contract, however minute and apparently immaterial in their effect, is within this constitutional prohibition.

Moreover, it is well settled, that a contract entered into between the State and an individual, is as fully protected by this prohibition, as a contract between two individuals; that the contracting parties, whoever they may be, stand in this respect, upon the same ground; that the obligations imposed, and the rights acquired by virtue of the contract, cannot be impaired by a legislative Act.

That a constitutional Act of the Legislature, which is equivalent to a contract when performed, is a contract executed, and whatever rights are thereby created, a subsequent Legislature cannot impair. Smith's Com. on Con. Law, p. 382, 385. Story on Con. U. S. §§1379, 1385. 1 Kent's Com. §19, p. 388. Green vs. Biddle, 8 Wheat. 1, 84. Fletcher vs. Peck, 6 Cranch, 87, 135. Trustees of the Bishop's Fund vs. Riden, 13 Day's R. 87. New Jersey vs. Wilson, 7 Cranch, 164. Tarvett vs. Taylor, 9 Ibid, 43. Sturges vs. Crowingshield, 4 Wheat. R. 122. Dartmouth College vs. Woodward, 4 Wheat. R. 518. Atwater vs. Woodbridge, 6 Conn. R. 223. Osborne vs. Humphry, 7 Conn. R. 736. The Derby Turnpike Co. vs. Parks, 10 Conn. 522. London vs. Litchfield, 11 Ibid, 257. The People vs. Platt, 17 Johns. R. 195.

Let us test the Act under review by these principles.

The Legislature, at its session in 1827, passed an Act...