# Freeborn v. Smith

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United States Supreme Court
69 U.S. 160
Freeborn v. Smith
THIS was a writ of error to the Supreme Court of Nevada Territory.
Smith had obtained a judgment against Freeborn and Shelden in the Supreme Court of Nevada; Nevada being at the time a Territory only, not a State. To this judgment a writ of error went from this court, under the law organizing the Territory, and the record of the case was filed here, December Term, 1862. After the case was thus removed, the Territory of Nevada was admitted by act of Congress, March, 1864, into the Union as a State. The act admitting the Territory contained, however, no provision for the disposal of cases then pending in this court on writ of error or appeal from the Territorial courts. Mr. Cope and Mr. Browning, in behalf of the defendants in error, accordingly moved to dismiss the writ in this and other cases similarly situated, on the ground that the Territorial government having been extinguished by the formation of a State government in its stead, and the act of Congress which extinguished it having, in no way, saved the jurisdiction of the court as previously existing, nothing further could be done here. The Territorial judiciary, it was urged, had fallen with the government, of which it was part; and the jurisdiction of this court had ceased with the termination of the act conferring it. Hunt v. Palao, and Benner v. Porter, were relied on to show that the court had no power over cases thus situated.
It being suggested by Mr. O'Connor and Mr. Carlisle on the other side, or as interested in other cases from Nevada similarly situated, that a bill was now before Congress supplying the omissions of the act of March, 1864, the hearing of the motion for dismissal was suspended till it was seen what Congress might do. Congress finally acted, and on the 27th of February, 1865, passed 'An Act providing for a District Court of the United States for the District of Nevada,' &c.
The eighth section of this enacts,--
'That all cases of appeal or writ of error heretofore prosecuted and now pending in the Supreme Court of the United States, upon any record from the Supreme Court of the Territory of Nevada, may be heard and determined by the Supreme Court of the United States; and the mandate of execution or of further proceedings shall be directed by the Supreme Court of the United States to the District Court of the United States for the District of Nevada, or to the Supreme Court of the State of Nevada, as the nature of said appeal or writ of error may require; and each of these courts shall be the successor of the Supreme Court of Nevada Territory as to all such cases, with full power to hear and determine the same, and to award mesne or final process thereon.'
The motion to dismiss the writ for want of jurisdiction was now renewed.
Assuming jurisdiction to exist, this case of Smith v. Freeborn, &c., was argued also on a question of merits. The judgment mentioned at the beginning of the case, which Smith had obtained against Freeborn and Shelden, he had obtained against them as secret surviving partners of a certain Shaw. One ground of the writ of error was that no evidence whatever had been offered of a partnership with Shaw between Freeborn and Shelden (a matter which was more or less patent on the record); and that judgment having gone against both (two jointly) and error as to one, the judgment would have to be reversed. A motion had been made and refused below for a new trial.
There was also another question of merits. To rebut the evidence of partnership, the defendants offered some letters between themselves and Shaw, and between themselves and one Eaton, an agent of theirs; which letters, though containing, as was urged, some admissions against their own interest, the court below refused to let go in evidence to disprove a partnership.
Its action on these two points was one matter argued, but the great question was that of jurisdiction, a matter affecting other cases as well as this.
Messrs. Cope and Browning for the motion to dismiss, &c.:
1. As to the jurisdiction, our position is that the act is a retrospective enactment interfering with vested rights. Certainly it attempts to confer on this court jurisdiction to review judgments which, by law, at the time of its passage were final and absolute. The necessary result of maintaining it would be to disturb and impair these judgments, unsettle what had been previously settled, and compel the parties to litigate anew matters already definitively adjudicated. There is no higher evidence that rights have vested than a final judgment solemnly confirming them. Law is defined to be a rule of conduct; and to call an enactment which undertakes to deal with past transactions, and subject them to new requirements and conditions as tests of their legality, a rule of conduct, is to confound all rational ideas on the subject. Ex post facto laws are expressly prohibited by the Constitution, but the courts would hardly enforce enactments of this nature even in the absence of any constitutional prohibition; because, being retrospective, and providing for the punishment of acts not illegal when committed, they are not laws in the true sense of that term, and not, therefore, within the sphere of legislative authority. The principle is entirely applicable to civil causes, and prevents any injurious intermeddling with past transactions. Legislative power begins and ends with the power to enact laws, and in respect to the conduct of men in their dealings and obligations, and in the acquisition of property, no valid law can be enacted which undoes or unsettles that which was legally done or settled under a previous law.
The validity of enactments of this character has frequently been denied. In Merrill v. Sherburne, Woodbury, J., says: 'Acts of the legislature which look back upon interests already settled or events which have already happened, are retrospective, and our Constitution has in direct terms prohibited them, because highly injurious, oppressive, and unjust. But perhaps their invalidity results no more from this express prohibition, than from the circumstance that in their nature and effect, they are not within the legitimate exercise of legislative power.' After speaking of ex post facto laws, he adds: 'Laws for the decision of civil causes made after the facts on which they operate, ex jure post facto, are alike retrospective, and rest on reasons alike fallacious.' In Bates v. Kimball, Aikens, J., says: 'The principle meant to be laid down is that an act not expressly permitted by the Constitution, which impairs or takes away rights vested under pre-existing laws, is unjust, unauthorized, and void.' In Staniford v. Barry, Prentiss, J., in referring to the decision in Bates v. Kimball, and the reasoning on which it was based, says: 'The case appears to have been maturely considered, and was decided on principles and authorities which are conclusive of the question. We have only to add, that the principles adopted have become settled constitutional law, and are universally recognized and acted upon as such, by all judicial tribunals in this country. They are found in the doctrines of learned civilians, and the decisions of able judges, without a single decision, or even opinion or dictum to the contrary. They not only grow out of the letter and spirit of the Constitution, but are founded in the very nature of a free government, and are absolutely essential to the preservation of civil liberty, and the equal and permanent security of rights.' In Lewis v. Webb, Mellen, C. J., lays it down as a settled rule, 'that a law retrospective in its operation, acting on past transactions, and in its operation disturbing, impairing, defeating, or destroying vested rights, is void, and cannot and must not receive judicial sanction.' In McCabe v. Emerson, Rogers, J., after stating that it could not be presumed that the legislature intended to give the act under consideration a retrospective effect, says: 'But granting that intention to be clearly expressed, I have no hesitation in saying that the act is unconstitutional and void. The legislature has no power, as has been repeatedly held, to interfere with vested rights.' We do not question the validity of retrospective statutes that are purely remedial, that give a remedy without disturbing or impairing rights. Whenever they attempt to interfere with a right, however, the legislature has passed the bounds of its authority, and the acts are void.
The court is here asked to review a judgment on which the law has already pronounced its final sentence. The act of Congress just obtained, concedes that the judgment has become final, but declares that it shall not remain so, and deprives the parties of any benefit from it until the matters settled by it are again adjudicated. If it be possible for a right to attach itself to a judgment, it has done so here, and there could not be a plainer case of an attempt to destroy it by legislative action. It is unimportant, of course, that the court ever had jurisdiction; if it proceed at all, it must proceed under the jurisdiction conferred by the act, and not under that which it formerly had. The case stands as if the judgment had been rendered by a court of last resort.
2. In passing the act Congress attempted to exercise power judicial in its nature, and not legislative. If this is so, it will follow as a necessary conclusion that the act is void.
What distinguishes judicial from legislative power? It is that the one is creative and the other administrative; the one creates or enacts laws by which the community is to be governed, and the other administers those laws as between the members of which the community is composed. Those matters of which the courts assume jurisdiction, and particularly those appertaining to the trial and determination of causes, are clearly and necessarily the subjects of judicial power. Such matters include all of the proceedings in a cause from its commencement to its termination, and it is certain that within these limits no other than judicial power can be exercised. Filing a complaint, summoning and empannelling a jury, rendering a verdict or judgment, granting or refusing a new trial, taking an appeal or suing out a writ of error, are all acts pertaining to the jurisdiction of the courts, and within the operation of this power. They must be done in pursuance of some law prescribed by legislative authority, but considered merely as acts done, or to be done, in the progress of a cause, a legislative body has no power or control over them, either to command the doing of them, or to set them aside when done. No one will deny that rendering a judgment is strictly a judicial act, and it is evident that the power exercised in rendering it must also be exercised in setting it aside, for the act of setting a judgment aside, like the judgment itself, is simply a proceeding in the cause. And so as to every act that may be done in a cause, from its inception to its close; it is merely a proceeding in the cause, and is purely judicial in its nature. There is no difference in this respect between one act or one proceeding in a cause and another, they are alike judicial in their nature, and exclusively the subjects of judicial power. If one such act may be done or undone by legislative authority, there is no reason why the same authority may not be employed to do or undo every act throughout the proceedings. The question ceases to be a question of power, and becomes one of discretion only.
In Merrill v. Sherburne, the question was as to the validity of a statute granting a new trial after final judgment, and in Bates v. Kimball, and Lewis v. Webb, as to the validity of statutes granting an appeal where the judgments had also become final. It was held, in all the cases, that the statutes were unconstitutional and void, that their effect was to take away the legal force of the judgments to which they applied, and that in respect to these judgments they amounted to orders or decrees, which the courts alone were competent to make. These cases were decided not only on reasoning the most conclusive, but on authorities of the highest respectability and weight.
The act of Congress undertakes to grant an appeal or review in certain cases, in which there was no right of review at the time of its passage. The cases had been prosecuted as far as they could be under the law as it then stood; and if they may be prosecuted farther now, it is because Congress has the power to open the judgments, and direct the matters in controversy to be tried anew. The act operates as a judicial order in each of the cases to which it applies.
Moreover, how can Congress authorize this court to issue its mandate to a State court in a matter which is of State jurisdiction? It would be plainly unconstitutional to do so. Perturbations of our whole judicial system would arise; and no one could calculate the extent of the disaster.
II. Respecting merits. The case is here short and easy.
1. As to the first point, this court cannot review the evidence on which a jury found.
2. As to the second, there was no error in refusing to let parties make proof in their favor out of correspondence between one another, and between themselves and their agent.
Messrs. O'Connor and Carlisle, with brief of Mr. Billings, contra.
I. As respects jurisdiction.
1. Independently of the act of Congress of 27th February, 1865, how does the case stand?
The Territorial government is said to have been extinguished by the formation and establishment of a State government in its stead. Admitting this, does it necessarily follow that all acts performed by any department of the Territorial government down to the last moment of its existence, must, by the annihilation of their author, become irreversibly enforceable forever? We think not.
If a tribunal, hastily gotten up in one of the newly created Territories, has given a judgment involving millions, in utter violation of law, equity, reason, and conscience, must that judgment stand irreversible, establishing the right forever, merely because the court that gave it was in articulo mortis at the time, and expired shortly afterwards? Again we think not.
The Territorial government has been superseded, not by a direct declaration of the legislative will to that effect, but merely as a necessary consequence of a new government having arisen in its stead. The Territorial judiciary fell with the government of which it was a part; but the Supreme Court of the United States never was any part of the Territorial government. It did not cease to exist when the State of Nevada was admitted, nor did it lose its power, in fact or in law, to annul a definitive judgment of the Territorial court which was unlawful, and which, however unlawful, must, nevertheless, until reversed, form a bar to justice between the parties in any earthly tribunal.

## Notes

* ↑ 4 Howard, 589.
* ↑ 9 Id. 235.
* ↑ 1 New Hampshire, 213.
* ↑ 2 Chipman, 88.
* ↑ 1 Aikin, 314.
* ↑ 3 Greenleaf, 335.
* ↑ 18 Pennsylvania State, 111.
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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