# Liews v. Lewis/Dissent McLean

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* Dissenting Opinion McLean
United States Supreme Court
48 U.S. 776
Liews v. Lewis
Mr. Justice McLEAN.
I dissent from the opinion just pronounced. It overrules a solemn decision of this court in the case of Ross et al. v. Duval et al., 13 Peters, 57. And as that opinion is relied on as sustaining the decision now given, I shall examine it.
The judgment of the court in that case was placed upon two grounds. First, that the action was barred under the statute of Virginia of 1792. That act provided, that where an execution had not issued on a judgment, it might be revived within ten years, or where an execution was issued, and there was no return, other executions might be issued within the ten years from the rendition of the judgment. There was a saving in the act in behalf of infants and persons beyond the Commonwealth, 'giving five years after the removal of the disability to proceed on the judgment.'
By the act of 1826, the saving in the act of 1792 was repealed, but the time of the bar was to be computed, as specially provided, from the time of the repeal of the saving.
The court considered the act of 1792 as a limitation on the judgment, and, as more than ten years had elapsed, that all proceedings on the judgment were barred. There was nothing in the pleadings or evidence which showed that the plaintiff was within the saving of the statute.
And the court remark,-'There is another view of this case, which, though not much considered in the argument, is deemed important by the court.' 'And this arises under the process act of 1828,' &c. 'If the act of 1792, or any part of it, is to be considered as a process act merely, and not an act of limitations, the act of 1828 makes it the law of Congress for the State of Virginia, and gives immediated effect to it.' 'If it be viewed as an Act of limitations merely, and not for the regulation of process, it then takes effect as a rule of property, and is a rule of decision in the courts of the United States under the thirty-fourth section of the Judiciary Act.' 'In either case, effect is given to the act of 1792, and it is decisive of the present controversy.'
'But if it be considered, as contended, an act of limitations adopted by the act of 1828, the court are to give a construction to the act of 1828. If this be clear in its provisions, we are bound to give effect to it, although it may, to some extent, vary the construction of the act of 1792. And this is no violation of the rule that this court will regard the settled construction of a State statute as a rule of decision. For in this case the construction of the State law, in regard to the effect it shall have, is controlled by the paramount law of Congress.'
'The judgment in the Circuit Court was entered in 1821, so that seven years of the ten years' limitation of the act of 1792 had run when it was adopted by the act of 1828. Now the question is, shall no effect be given to this act of Congress in Virginia before its passage, because of the construction by the Virginia courts of the act of 1792?'
'It must be recollected, that this act of 1828 is a national law, and was intended to operate in the national courts in every State. As it regards some of the States, it may at first have operated less beneficially in them than in others; but its provisions took immediate effect in all the States.'
'It is a sound principle, that where a statute of limitations prescribes the time within which suit shall be brought, or an act done, and a part of the time has elapsed, effect may be given to the act; and the time yet to run, being a reasonable part of the whole time, will be considered the limitation in the mind of the legislature in such cases.'
'There may be some contradictory decisions on this point, in some of the States, which have been influenced by local considerations, and the peculiar language or policy of certain acts of limitations. But the rule is believed to be founded on principle and authority.'
I have cited largely from the above decision, to show that the point was distinctly considered and decided, as arising under the act of 1828, that effect may be given to a statute of limitations, where a part of the time has run; but a reasonable part of the whole time has yet to run. And this is the principle which is repudiated in the case under consideration. I have a distinct recollection, that the point was first suggested by the lamented Justice Story, and was discussed, and the principle was laid down with the entire concurrence of the court, so far as I know. There was no dissent expressed, either in consultation or on the bench.
It is true there was another ground on which the decision was rested; but it was also placed upon this ground, so that one ground as well as the other was ruled by the court. In the case of Ross, the court say,-'The saving clause of the act of 1792, as to non-residents, is repealed, the only effect of which is to bring within the limitation of the statute of 1792 those who were within its saving clause, and against whom the statute had not begun to run. Against such persons the statute could not begin to operate, until the repeal of the exception by the act of 1826.' And that remark is considered by the court, in the case before us, as having been made on general principles. Now such was the express provision of the act of 1826, that is should take effect from its date, and the remark was made in reference to that provision.
There is no rule better settled, in the construction of statutes of limitations, than that effect must be given to them according to their language. If they make no exception in favor of infants, femes coverts, or non-residents, the courts can make none. And when the exceptions of a statute of limitations are repealed, the act stands as though it had been originally passed without them. In Jackson v. Lamphier, 3 Peters, 280, the court say,-'The time and manner of their operation, [statutes of limitations,] the exceptions to them, and the acts from which the time limited shall begin to run, will generally depend on the sound discretion of the legislature. Cases, however, may occur, where the provisions of the law on these subjects may be so unreasonable, as to amount to a denial of a right, and to call for the interposition of the court. If the legislature of a State should pass an act by which a past right of action shall be barred, and without any allowance of time for the institution of a suit in future, it would be difficult to reconcile such an act with the express constitutional provisions in favor of the rights of private property.' It must be admitted that the legislature could not bar a claim, to which there was no bar; but no one can doubt that a statute may bar claims where the right of action existed, and a reasonable part of the whole time of the statute has to run. This is often done in some of the States. But, while it is not doubted that the legislature may do this, it is objected that it cannot be done as a matter of construction.
This objection is more plausible than sound. The statute creates a bar, and the question arises on its construction, whether it is 'so unreasonable as to amount to to a denial of a right,' in the language of this court in the case above cited. If the answer to this shall be in the affirmative, then, in the language above cited, 'it would be difficult to reconcile such an act with the express constitutional provisions in favor of the rights of private property.' But if the question can be answered in the negative, then a court is bound to give effect to the statute. And here is an answer, in the words of this court, to the principal ground taken in the case under consideration, and on which the decision is founded. If the court may determine whether a statute is so unreasonable as to cut off a private right, of necessity they may decide whether it is not so reasonable as to be enforced.
In the case before us, the Illinois act of 1827 limits the right of action to sixteen years, and the proviso gives the same time to sue to a non-resident, after he shall come within the State. But this proviso was repealed by the act of 1837, which placed residents and non-residents, as to the time of bringing an action, on the same footing. The plaintiff's cause of action accrued under the act of 1827; in 1837, the saving being repealed, six years were left for the statute to run to bar the claim. Was this a reasonable time? The answer must be in the affirmative. Then the act is not unconstitutional. It deprives the party of no right. In the language of the court in the case of Ross v. Duval, 'the time yet to run, (when the proviso was repealed,) being a reasonable part of the whole time, will be considered the limitation in the mind of the legislature, in such cases.' There can be no mistake as to the point decided by the court; and that point is directly opposed to the decision now made. In such cases, it is always better to overrule a former opinion directly, than to destroy its force by indirection. In their former opinion the court say, 'The rule is believed to be founded on principle and authority.'
In statutes of limitations it is usual to say, they shall begin to run from the time the action shall hereafter accrue, and when a saving of such act is repealed, that it shall operate form the date of the repeal; and if these provisions be not in the acts, they will, as a matter of course, take effect upon their passage. They must take effect from their passage, unless the language shows the time is to be computed from the date of the act. Without this provision, the question would arise whether a reasonable part of the time allowed by the statute, from the time the action accrued, had yet to run, as before remarked.
In Luckett v. Dunn and Bass, 3 Litt. 218, the court say,-'But the privilege previously allowed to persons who might be out of the country when their cause of action, or right of entry, accrued, to maintain their action within ten years after their return, was expressly repealed by the first section of the act of January, 1814, which, by a subsequent clause in the third section of the same act, was to take effect at the expiration of six months from its passage; and it was not until more than a year after the passage of that act, that this suit was brought by Luckett in the Circuit Court. It is obvious, therefore, that the absence of Buckner Pittman cannot have prevented the time which has elapsed since the lot had been held adversely by the defendants, and those through whom they claim, from barring the plaintiff's action.
The rule of so construing a statute as not to give it a retrospective effect is admitted. And a legislature can never be presumed to intend to destroy a vested right. Indeed, they have no power to pass such a law. But a law may be constitutional, and yet have a retrospective effect. Matthewson v. Satterlee, 2 Peters, 380. In the case under examination, it is not proposed to give the statute a retrospective effect, or to affect in any degree vested rights by a construction of it. The only question is, whether the six years that the statute had to run, on the repeal of the saving, is a reasonable part of the whole time required by the act to constitute a bar. The plaintiff, though not a resident of the State, might have sued so soon as the right of action accrued.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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