Stark v. M'Gowen

9 Stat. 459, § 30.

1 Brev. 55; 2 Bay. 454. See 2 Bail. 25.

1 Jac. L. D. 424. 4 Inst. 88. Perrin v. Sikes, 1 Day’s Rep. De Lolme on the Const. 133-49. 1 Fonb. 17. 2 Sull Lect. 171-4, Admor Byrne v. Admor Stewart, 3 Eq. Rep. 475. Livingston v. Van Ingen, 9 John. Rep. 563-4-72-3. Cas. and Opin. 407-9-15. 1 Wood, Vin. Lect. 197. 2 Amer. Law Jour. 263, 270-271. R.

Reported 3 Brev. p. 83, perhaps; hut the reported cases do not contain, the principle laid down in the text. See Ante, 7 note, 2 vol. 518, note.

Stark v. M’Gowen.

Soon after the above decision, the defendant filed his bill (14th January, 1819) in the Court of Equity, at Columbia, praying “That the said clause, in the Road Act of the 21st December, 1811,1 (so far as the same may confer any private benefit to him, the said Henry M’Gowen) may be vacated and cancelled: and that the said Henry M’Gowen may be restrained by the injunction of this honorable Court, by reason of his manifold acts of fraud in procuring the same, and preventing *the same from being repealed by the General Assembly, from doing or exercising any act, at and upon your orator’s landings and roads,” &c. That he may be likewise restrained from commencing any action against your orator, for setting up his ferry again and taking toll, or for setting over persons without charge, and that he be enjoined and restrained perpetually from enforcing his said judgment,” &c., and also to account for the ferriage received, &e.

■ On the suggestion of the presiding Judge, Chancellor Waties, the counsel for the defendant agre’ed to admit the facts as stated in the bill, and to argue- the case as if on a general demurrer.

His Honor requested to hear complainant’s solicitor first, as he thought the demurrer sustainable.

Mr. William E. De Saussube, for the complainant, contended, that complainant had made a strong case for relief: that it was admitted that defendant had, by false suggestions, prevented the legislature from doing what otherwise they would *240have done according to their established practice, to wit, to vest half the ferry in complainant, or make him compensation. That complainant was owner of the west bank of the river, but the legislature had been deceived and imposed upon by defendant as to that fact. That if the Court did not interfere, complainant was without remedy.

The legislature could not, if applied to, repeal a charter it had granted. It is a party to the contract. Fletcher v. Peck, 6 Cranch, 132. I cannot set aside its own act. This would be to assume judicial powers.

But if it could interfere to repeal its charter, yet the relief would not be adequate; it cannot enjoin the judgment at law.

The court of law cannot interfere, it is not competent; Jackson v. Lawton, 10 John. Rep. 23, 26. See also, Mounce v. Ingram, et al., Constitutional Court, 1802; 1 Equity Reports, 66 note; 1 Brev. Dig. 199, in note.

If there were no precedent, yet this Court must interfere and relieve the citizen where it is manifest that no other tribunal has the power.

It is a maxim of the common law, that every wrong has its remedy. Chief Justice Pkatt said, he never wished again to hear the objection of novelty urged; for torts are infinitely various, and there is nothing in nature that may not be made an instrument of mischief; 1 Chitty’s Pleadings, 8A-6. See also Willes’ Rep. 581. In the Code Civil of Prance the judges are ordered to go on, and where a new case arises, to create a precedent and give relief in cases where the law is silent. 1 Tom. Code Civil, 16. Under the head of “ Regies pour lesjuges,” The orator Portalis says, ‘1II est done necessairement une foule de cirConstances dans lesquelles un juge se trouve sans loi. II faut done laisser alors au juge la faculte de suppleer a la loi par les lumieres naturelles de la droiture et du ion sens. Rien ne serait plus pueril que 'kde vouloir prendre des precautions suffisantes, pour qu’un juge n’eut jamais qu’un texte precis a appliquer.” See also the same vol. p. 49, sec. 4., But “the Court of Equity has an undoubted jurisdiction to relieve against every species of fraud,” Chesterfield v. Jansen, 2 Ves. sen. 155, per Lord Chancellor Hakdwioke. And have exercised that jurisdiction in cases like the present: Attorney-General v. Vernon, 1 Vern. 388, 5 Com. 282, F. 6, 2 Harris and M’Henry, 201, 244.

But it is said these were charters by the King, and not legislative acts. But see 2 Blackstone’s Com. 346, citing Richardson v. Hamilton, Canc. 8 Jan. 1733, and M’Kenzie v. Stuart, Dom. Proc. 13th March, 1754. This was a private act. It is not certain that the establishment of a ferry can be regarded as a public act; but the vesting of it in a particular individual is certainly private. There may be a private clause in a public aot; Coke’s Reqjorts, 5 vol. 10 part, 57 b. case of the Chancellor of Oxford, and cases there cited.

But without interfering with the Act of Assembly, the Court has power to enjoin the defendant from availing himself of it, and of the j udgment at law perpetually.

May declare him trustee.

We are not precluded by the verdict at law, for that Court could not try the fraud; 10 Johns. 23, 1 Harris and M’H. 189. The issue below was, whether the legislature had given M’Gowen a right to a ferry, and Stark had violated it. That is no question here, and parol evidence could not be received to show that other matters came in issue than as appears by the record; 1 Esp. Rep. 43, 2 Johns. 30. The comity exercised by the Courts as to matters decided by each other, does not extend to collateral matters not necessarily decided by the verdict. The scire facias to repeal a patent may be brought on the part of the King or a subject; 3 Black. Com. 261.

The Act is unconstitutional. “ It is the universal sentiment of the American people, evidenced by the Constitution of the United States, that the legislative power ought not to take an individual’s property without his consent.” Ck. J. Kent, 2 Johnson’s N. Y. R. 166. No State shall pass a law to impair the obligar tion of contracts. But a grant is a contract executed. Is the clause to be considered as inhibiting the State from impairing the obligation of contracts between two individuals, but excluding from that inhibition contracts made with *241itself ? The words themselves contain no suoh distinction; per. Ch. J. Marshall, 6 Cranch. 137.

This is not the ordinary case of taking land for public use without compensation. Public good might require that the landing should be taken from complainant for the benefit of the public, but it does not require that the defendant should be the ferryman.

It is said that the constitutional question has already been decided in the court of law; but a proper case being made, this Court must consider the question. The comity of the Courts as to the decisions of each *other cannot extend to a constitutional question, because every judge is bound by his oath of office to “preserve, protect and defend the Constitution.” The Court of Equity will not submit its judgment and its conscience to the keeping of the Court of Law.

The legislature made this grant mistake, supposing the printed Act of 1799 was really passed. The term “ re-established ” proves this. In point of fact, the ferry was not before established. And this mistake being palpable, gives this Court jurisdiction.

Chancellor Waties :

This bill is brought by the complainant, to be relieved from a verdict at la,w obtained against him by the defendant. The grounds of complaint are very numerous, and are certainly of a nature which should entitle them to the fullest consideration; but all of thorn of which this Court might originally have taken cognizance, have been already considered and decided both by the-Constitutional Court and the legislature; and it is evident to me that I should be' exercising an appellate jurisdiction over their proceedings, if I should now re-examine the case. It is contended indeed, that there is one matter which has not before been considered, and which is exclusively of equitable cognizance; it is alleged that the clause of the Act which vested the ferry in the defendant, was obtained by false suggestions on his part, and may on that account be set aside by this Court. This position cannot be supported; and the authorities quoted do not apply to it. Mr.' Justice Blackstose has indeed said (2 Blac. Com. 345), that private Acts of Parliament may be relieved against, when obtained upon fraudulent suggestions ; but these Acts are passed for the sole purpose of unfettering estates from the unreasonable contrivances of former tenants, and are regarded so much in the light of private conveyances, that they are left open to future exceptions, by a general saving of the rights of all persons interested in them. But Mr. Black-stoke has nowhere said that a public Act may be avoided in the same manner. On the contrary, he has insisted (1 B. 91, 161) that this is transcendant in its nature; that it must be obeyed (if positive), however unreasonable, and can only be controlled by an impossibility. This doctrine is not indeed admissible here to the same extent, for under our improved system of government the legislative power is limited by constitutional restrictions ; but in all other respects it is the sovereign power of the State. And it cannot be doubted that the Act which contains a clause under consideration is a public one. It is an Act “to establish certain roads, bridges and ferries,” which are all manifestly public objects of legislation; and the clause that vests the ferry in the defendant, is a grant of a public right, which must necessarily belong to the sovereign power under any form of government.

In the case of Fletcher v. Peck, 6 Cranch, 131, which was also much *relied on, the opinion of the Court does not in any respect differ from that entertained in the present case. The point decided there was, that a law of Georgia could not annul a right acquired under a previous grant of the State, because it was forbidden by the Constitution of the United States to pass any law impairing the obligation of contracts. And I admit that if the Act here complained of had deprived the complainant of a right which was before legally vested in him, it would be the dirty of this Court (if the case was originally before it) to declare the Act void, because unconstitutional. But this objection to it has been already considered by a Court, to which the subject most properly belonged, and its decision must be conclusive.

It may also be admitted, that if a suit was instituted on the part of the State to annul the right grant.ed to the defendant on account of fraud in obtaining it, the *242Court might sustain such a suit; but I disclaim any authority to set aside the Act at the suit of an individual, because the legislature in the exercise of a legitimate power may have unjustly preferred the claims of another. The validity of a law does not depend on the reasonableness of it, or on the motives of its makers, but on its consistency with the Constitution. If, therefore, in acting on a subject within in its limits, the legislature should, either through misinformation or any other cause, do injustice to an individual, there is no Court that can give relief. But I am bound to presume, that no injustice has been done to the complainant. He has made an appeal to the legislature as well as to the Constitutional Court, and they have both decided against his claims. These decisions must preclude any further hearing in this Court on the same grounds; and there is no new matter offered on which it can exercise jurisdiction.

It is therefore ordered and decreed, that the injunction granted in this case he dissolved, and that the bill be dismissed, (a)

There was an appeal from the above decree, but it was unanimously affirmed by all the Chancellors, who would not hear the defendant’s counsel.

Present, Chancellors De Saussure, W'aties, James, Gailrard and Thompson.

W. F. De Saussure, for the complainant. Blanding, and Nott £f M’ Cord, for the defendant.

16 Vin. Abr. 578. Tit. Prerogative, E. a. 4. 17 Vin. 88, Tit. Prerog. M. b. 18-9. 6 Mod. 307.