People ex rel. Israel v. Tibbets

Woodworth, J. said all the members of the Court had examined the statute and the questions submitted upon it, and were unanimous that the motion must be granted. The remaining Judges were authorized to say, that Sutherland, J. (who had this morning departed for his residence) unhesitatingly concurred in this opinion. The Court had adopted no written opinion; but he would briefly state the views they entertained upon the subject. The Court had thought it a proper case for an information ; according to an opinion which they had expressed at the present term, upon papers submitted at the last; and the relator now applies, upon the statute since passed, for a rule that the defendants appear; and he also moves that the Court should make a short rule for pleading, in order that an issue may be speedily joined. The act of 1788, declared upon what terms an information should be filed; but left the proceedings upon it to their usual and ancient course. The only provision in that act expressly hastening the proceedings is in the first section, which enables the Court to require the plea as of the same term at which the information should be filed. This indicated an intention that a case of this kind should be proceeded in with more than ordinary diligence; but the provision was inadequate to the object, inasmuch as it left the preliminary steps, the process to compel the defendant’s appearance, to be pursued according to the rules of the common law; a proceeding so dilatory as to render the suit in many cases altogether inefficient. This was held to be the course, at the last .term, in Richardson’s case, (ante 97,) after a full examination of the subject [391] The authorities spoke so plain a language as left the Court no room for doubt. The act now in question was obviously passed to remedy this defect. There cannot be a question that it applies to all informations filed against corporations or their officers; and the only question which can arise is, whether the act is to be deemed so entirely prospective as to steer clear of the present case. The defendants insist that it is so; and ground themselves mainly upon the argument, that a contrary construction would take away vested rights. It is also said, that this construction is deducible from the language of the 4th section, which is prospective in terms. This is true of that particular section; but it was well answered at the bar, that it relates entirely to a distinct subject, and that the sections relied upon are altogether disconnected with, and independent of it; that the former relates to the civil, the latter to the criminal remedy against corporations, and the plain difference of expression by the legislature, in relation to these different subjects, is a strong argument against the construction for which the defendants contend. The legislature thought it rather too severe and rigorous a proceeding to change the course of the civil remedy for debt, in suits already brought; and hence they made it expressly prospective. Not so as to a proceeding for intrusion or usurpation. It is not necessary to inquire whether a suit might properly be said to be commenced, when this motion was made. The information was not yet filed; and it may well be doubted whether it is perfectly correct, in technical meaning, to say that before process issued, or even an information filed, which is in the nature of a bill or plaint, that an action is commenced. Admitting,' however, that it was commenced, for all the purposes of this question, there is no invasion of private right in the case within the rule which struggles against giving statutes a retroactive effect. The words of the 9th section are, that it shall be the duty of the Supreme Court, upon the application of any person, or persons, or body corporate, &e. to proceed forthwith, and in a summary way, &c. to inquire as to the election complained [392] of, &e. order an issue, &c. or direct the Attorney General t0 £.¡e all information under the act of 1788. Then the next Section is, that it shall be lawful for the Supreme Court, in case any such issue shall be ordered, or any such information directed or permitted to- be filed, to make order for prescribing and limiting the times for the parties to plead and proceed therein, for giving preference to the issues, and for expediting the ulterior proceedings, so as to cause the same to be proceeded upon, and the final determination thereof to be had with the best and most convenient speed that may be, and to cause the same to be expedited by all such ways and means as a due regard to the ends of jus tice will admit, and the case may require, (c) This applies to all cases, whether any incipient proceedings may have taken place before the passage of the act or not. Whenever the relator comes forward with his application, at whatever'stage of the proceedings, he may have the hem efit of the act, by the expedition of his case as its exigency, and the ends of justice may demand. The act looks • to the end of the term for which the offices endure. In respect to corporations, this term is usually a single year, and without a speedy hearing the suit will be entirely nugatory. If it were true-that the statute interfered with vested rights, the Court would feel bound to give it the very strictest construction ; but there is no such thing. What right is taken away? Are the defendants divested of their defence upon the merits ? Their saying that the proceeding is hastened in point of form makes nothing for them. They have no right to complain of this. It is complaining that he is put upon his defence today, whereas he had a right to delay till tomorrow; a singular head of vested right: a right to delay justice. Are not the legislature competent to take away, or abridge such an evil? It is most important that they should possess this power. The pretence of .the defendants does not merit the name of right. It relates to the remedy. The act merely says that, under its regulations, the questions between the parties may, peradventure, be brought to trial [393] six months earlier than they otherwise would have been. This is a very usual subject of legislative -interference. Indeed, as was said at the bar, the Court might do the same thing independent of the legislature. Suppose they were "to make an order that all rules to plead should be 10 days instead df 20, woiild it lie with the parties interested to gainsay this 7 The legislature are in the habit of changing the form of proceeding, to try rights, in various ways. Take a single instance. Ejectment may now be brought for the people instead of the former more dilatory form of a writ of escheat or intrusion. The former is much the more summary remedy, and was itself instituted by the Courts, and applied to various cases where a more dilatory form prevailed according to the ancient practice. This remedy was given to the people by an act of the legislature, (1 R. L. 485, s. 5,) which act, too, sanctioned ejectments pending at the time of its passage. Would it be competent for defendants in possession, or against whom ejectments were brought, when that act passed, to object that the remedy against them was thus made too speedy, and demand to he proceeded against hy the old writ? To complain that the alteration hurrying them on to trial was a violation of the constitution, or of vested rights? At this rate, every statute by which the collection of debts or the trial of rights is rendered more speedy, or effectual, would 'be inapplicable and void in reference to subsisting rights. We are clear that short rules for pleading should be granted. It is true that nothing is said in the act as to compelling an appearance, where the proceeding is against officers. The right to make a rule for the defendants to appear, depends upon the construction which should be given to the words of the 10th section. The power of the Court is, not only to make rules for pleading, but rules to proceed ; and the whole is to be done so' as to cause the matter to be proceeded upon, and the final determination thereof to be had, with the best and most convenient Speed that may be. The Court are to cause the same to be expedited hy all such ways and means as a due regard to the ends of justice-will admit, and the case may require. If the act [394] meant to confer no summary power of compelling an ap pearance¡ it would use a most inconsistent language. This department of the proceedings in which the greatest delay must intervene, would he wholly unprovided for-The intention of the act must have been, that the cause should be put in such a situation, as would enable the relator to proceed immediately. The Court order the following Rule : That the Attorney General have leave to file an information or informations, in the nature of a quo warranto, under the act entitled “ an act to prevent fraudulent bankruptcies by incorporated companies, to facilitate proceedings against them, and for other purposes,” passed April 21st, 1825, against Elisha Tibbets, &c. to try by what warrant, or authority, the said last named persons, or any of them, claim to hold and' exercise the office of directors of the Franklin Fire Insurance Company. And it is further ordered, that, within 20 days, after filing such information and notice thereof to the defendants, the appearance of the defendants be entered in the book of common rules; and that the defendants plead to the saic information or informations within the same time; and further, that all subsequent pleadings, if any, on the part of the defendants, shall be served within ten days after service upon them of the pleading to be answered; and if the defendants shall neglect to plead, or answer, within the times above limited, their defaults may be entered; and thereupon, judgment of ouster shall be given against them, or such of them as make default upon motion to be made to this Court; unless such defaults are set aside. Footnotes [(c)] See a summary of the act, so far as it relates to proceedings on information in the nature of a quo warranto, ante 122, note,