ting aside their judgments, compelling them to grant new trials,1 ordering the discharge of offenders,2 or directing what particular steps shall be taken in the progress of a judicial inquiry.3 1 Lewis v. Webb, 3 Me. 326; Durham v. Lewiston, 4 Me. 140; Atkinson v. Dunlap, 50 Me. 111; Bates v. Kimball, 2 Chip. 77; Staniford v. Barry, 1 Aik. 314; Merrill v. Sherburne, 1 N. H. 199; Opinion of Judges in Matter of Dorr, 3 R. I. 299; Taylor v. Place, 4 R. I. 324; Dechastellux v. Fairchild, 15 Penn. St. 18; Young v. State Bank, 4 Ind. 301; Beebe v. State, 6 Ind. 515; Lanier v. Gallatas, 13 La. Ann. 175; Mayor, &c. v. Horn, 26 Md. 194; Weaver v. Lapsley, 43 Ala. 224; Saunders v. Cabaniss, 43 Ala. 173; Moser v. White, 29 Mich. 59; Sydnor v. Palmer, 32 Wis. 409; People v. Frisbie, 26 Cal. 135; Lawson v. Jeffries, 47 Miss. 686; s. c. 12 Am. Rep. 342. And see post, pp. * 391-* 393 and notes. It is not competent by legislation to authorize the court of final resort to reopen and rehear cases previously decided. Dorsey v. Dorsey, 37 Md. 61; s. c. 11 Am. Rep. 528. The legislature may control remedies, &c., but, when the matter has proceeded to judgment, it has passed beyond legislative control. Oliver v. McClure, 28 Ark. 555; Griffin's Executor v. Cunningham, 20 Gratt. 31; Teel v. Yancey, 23 Gratt. 691; Hooker v. Hooker, 18 Miss. 599. 2 In State v. Fleming, 7 Humph. 152, a legislative resolve that no fine, forfeiture, or imprisonment, should be imposed or recovered under the act of 1837 [then in force], and that all causes pending in any of the courts for such offence should be dismissed," was held void as an invasion of judicial authority. The legislature cannot declare a forfeiture of a right to act as curators of a college. State v. Adams, 44 Mo. 570. Nor can it authorize the governor or any other State officer to pass upon the validity of State grants and correct errors therein; this being judicial. Hilliard v. Connelly, 7 Geo. 172. Nor, where a corporate charter provides that it shall not be repealed unless it shall be made to appear to the legislature that there has been a violation by the company of some of its provisions," can there be a repeal before a judicial inquiry into the violation. Flint, &c. Plank Road Co. v. Woodhull, 25 Mich. 99. A legislative act cannot turn divorces nisi into absolute divorces, of its own force. Sparhawk v. Sparhawk, 116 Mass. 315. But to take away by statute a statutory right of appeal is not an exercise of judicial authority. Ex parte McCardle, 7 Wall. 506. And it has been held that a statute allowing an appeal in a particular case was valid. Prout v. Berry, 2 Gill, 147; State v. Northern Central R. R. Co., 18 Md. 193. A retroactive statute, giving the right of appeal in cases in which it had previously been lost by lapse of time, was sustained in Page v. Mathews's Adm'r, 40 Ala. 547. But in Carleton v. Goodwin's Ex'r, 41 Ala. 153, an act the effect of which would have been to revive discontinued appeals was held void as an exercise of judicial authority. See cases cited in next note. 3 Opinions of Judges on the Dorr Case, 3 R. I. 299. In the case of Picquet, Appellant, 5 Pick. 64, the judge of probate had ordered letters of administration to issue to an applicant therefor, on his giving bond in the penal sum of $50,000, with sureties within the Commonwealth, for the faithful performance of his duties. He was unable to give the bond, and applied to the legislature for relief. Thereupon a resolve was * And as a court must act as an organized body of judges, [* 96] and, where differences of opinion arise, they can only decide by majorities, it has been held that it would not be in the power of the legislature to provide that, in certain contingencies, the opinion of the minority of a court, vested with power by the constitution, should prevail, so that the decision of the court in such cases should be rendered against the judgment of its members.1 Nor is it in the power of the legislature to bind individuals by a recital of facts in a statute, to be used as evidence against the parties interested. A recital of facts in the preamble of a statute passed empowering" the judge of probate to grant the letters of administration, provided the petitioner should give bond with his brother, a resident of Paris, France, as surety, and that such bond should be in lieu of any and all bond or bonds by any law or statute in this Commonwealth now in force required." &c. The judge of probate refused to grant the letters on the terms specified in this resolve, and the Supreme Court, while holding that it was not compulsory upon him, also declared their opinion that, if it were so, it would be inoperative and void. In Bradford v. Brooks, 2 Aik. 284, it was decided that the legislature had no power to revive a commission for proving claims against an estate after it had once expired. See also Bagg's Appeal, 43 Penn. St. 512; Trustees v. Bailey, 10 Fla. 238. In Hill v. Sunderland, 3 Vt. 507, and Burch v. Newberry, 10 N. Y. 374, it was held that the legislature had no power to grant to parties a right to appeal after it was gone under the general law. In Burt v. Williams, 24 Ark. 91, it was held that the granting of continuances of pending cases was the exercise of judicial authority, and a legislative act assuming to do this was void. And where, by the general law, the courts have no authority to grant a divorce for a given cause, the legislature cannot confer the authority in a particular case. Simmonds v. Simmonds, 103 Mass. 572; s. c. 4 Am. Rep. 576. And see post, pp. 110, note, *392 and note. 1 In Clapp v. Ely, 3 Dutch. 622, it was held that a statute which provided that no judgment of the Supreme Court should be reversed by the Court of Errors and Appeals, unless a majority of those members of the court who were competent to sit on the hearing and decision should concur in the reversal, was unconstitutional. Its effect would be, if the court were not full, to make the opinion of the minority in favor of affirmance control that of the majority in favor of reversal, unless the latter were a majority of the whole court. Such a provision in the constitution might be proper and unexceptionable; but if the constitution has created a court of appeals, without any restriction of this character, the ruling of this case is that the legislature cannot impose it. The court was nearly equally divided, standing seven to six. A statute authorizing an unofficial person to sit in the place of a judge who is disqualified, was held void in Van Slyke v. Insurance Co., 39 Wis. 390; s. c. 20 Am. Rep. 50. That judicial power cannot be delegated, see Cohen v. Hoff, 3 Brev. 500. may perhaps be evidence, where it relates to matters of a public nature, as that riots or disorders exist in a certain part of the country; but where the facts concern the rights of individuals, the legislature cannot adjudicate upon them. As private statutes are generally obtained on the application of some party interested, and are put in form to suit his wishes, perhaps their exclusion from being made evidence against any other party would result from other general principles; but it is clear that the recital could have no force, except as a judicial finding of facts; and that such finding is not within the legislative province.2 [* 97] * We come now to a class of cases in regard to which there has been serious contrariety of opinion; springing from the fact, perhaps, that the purpose sought to be accomplishd by the statutes is generally effected by judicial proceedings, so that if the statutes are not a direct invasion of judicial authority, they at least cover ground which the courts usually occupy under general laws conferring the jurisdiction upon them. We refer to Statutes empowering Guardians and other Trustees to sell Lands. Whenever it becomes necessary or proper to sell the estate of a decedent for the payment of debts, or of a lunatic or other incompetent person for the same purpose, or for future support, or of a minor to provide the means for his education and nurture, or for the most profitable investment of the proceeds, or of tenants in common to effectuate a partition between them, it will probably be found in every State that some court is vested with jurisdiction to make the necessary order, if the facts after a hearing of the parties in interest seem to render it important. The case is eminently one for judicial investigation. There are facts to be inquired into, in regard to which it is always possible that disputes may arise; the party in interest is often incompetent to act on his own behalf, and his interest is carefully to be inquired into and guarded; and as the proceeding will usually be ex parte, there is more than the ordinary opportunity for fraud upon the party interested, as well as upon the authority which 1 Rex v. Sutton, 4 M. & S. 532. 2 Elmendorf v. Carmichael, 3 Litt. 478; Parmelee v. Thompson, 7 Hill 80; Lothrop v. Steadman, 42 Conu. 583, 592. grants permission. It is highly and peculiarly proper, therefore, that by general laws judicial inquiry should be provided for these cases, and that such laws should require notice to all proper parties, and afford an opportunity for the presentation of any facts which might bear upon the propriety of granting the applications. But it will sometimes be found that the general laws provided for these cases are not applicable to some which arise; or, if applicable, that they do not accomplish fully all that in some cases seems desirable; and in these cases, and perhaps also in some others without similar excuse, it has not been unusual for legislative authority to intervene, and by special statute to grant the permission which, under the general law, would be granted by the courts. The power to pass such statutes [*98] has often been disputed, and it may be well to see upon what basis of authority as well as of reason it rests. * If in fact the inquiry which precedes the grant of authority is in its nature judicial, it would seem clear that such statutes must be ineffectual and void. But if judicial inquiry is not essential, and the legislature may confer the power of sale in such a case upon an ex parte presentation of evidence, or upon the representations of the parties without any proof whatever, then we must consider the general laws to be passed, not because the cases fall necessarily within the province of judicial action, but because the courts can more conveniently consider, and more properly, safely, and inexpensively pass upon such cases, than the legislative body, to which the power primarily belongs.1 The rule upon this subject, which appears to be deducible from the authorities, is this: If the party standing in position of trustee applies for permission to convert by a sale the real property into personal, in order to effectuate the purposes of the trust, and to accomplish objects in the interest of the cestui que trust not otherwise attainable, there is nothing in the granting of 1 There are constitutional provisions in Kentucky, Virginia, Missouri, Oregon, Nevada, Indiana, Maryland, New Jersey, Arkansas, Florida, Illinois, Wisconsin, Texas, West Virginia, Michigan, and Colorado, forbidding special laws licensing the sale of the lands of minors and other persons under legal disability. Perhaps the general provision in some other constitutions, forbidding special laws in cases where a general law could be made applicable, might also be held to exclude such special authorization. permission which is in its nature judicial. To grant permission is merely to enlarge the sphere of the judiciary authority, the better to accomplish the purpose for which the trusteeship exists; and while it would be entirely proper to make the questions which might arise assume a judicial form, by referring them to some proper court for consideration and decision, there is no usurpation of power if the legislature shall, by direct action, grant the per mission. In the case of Rice v. Parkman,1 certain minors having become entitled to real estate by descent from their mother, the legislature passed a special statute empowering their father as guardian for them, and, after giving bond to the judge of probate, to sell and convey the lands, and put the proceeds at interest on good security for the benefit of the minor owners. A sale was made accordingly; but the children, after coming of age, brought suit against the party claiming under the sale, insisting that the special statute was void. There was in force at the time this special statute was passed a general statute, under which license might have been granted by the courts; but it was held that this general law did not deprive the legislature of that [* 99] full* and complete control over such cases which it would have possessed had no such statute existed. "If," say the court, "the power by which the resolve authorizing the sale in this case was passed were of a judicial nature, it would be very clear that it could not have been exercised by the legislature without violating an express provision of the constitution. But it does not seem to us to be of this description of power; for it was not a case of controversy between party and party, nor is there any decree or judgment affecting the title to property. The only object of the authority granted by the legislature was to transmute real into personal estate, for purposes beneficial to all who were interested therein. This is a power frequently exercised by the legislature of this State, since the adoption of the constitution, and by the legislature of the province and of the colony, while under the sovereignty of Great Britain, analogous to the power exercised by the British Parliament on similar subjects, time out of mind. Indeed, it seems absolutely necessary for the interest of those who, by the general rules of law, are incapacitated from disposing of their property, that a power should exist somewhere of 1 16 Mass. 326. |