Beach v. Walker

Hosmer, Ch. J. The charge to the jury, unquestionably, was correct. The fees of the officer, considered exceptionable by the judge, the law did not authorize, and the levy of the execution being an indivisible act, operating as an entire conveyance of the land set off, if it operate at all, and taking the estate of an individual against his consent, and without the authority of law, was utterly void. It was so, on this undoubted principle ; that an act in part legal, but tainted in part with illegality, from the impossibility of separation, and the necessity of the case, is without legal validity. Stetson v. Kempton & al. 13 Mass. Rep. 283. This principle, in relation to the prescriptions of a statute, however the rule may be in reference to a deed, or act at common law, is unquestionable. “ The statute” said Lord Hobart, in Malaverer v. Redshaw, 1 Mod. Rep. 35. “ is like a tyrant; where he comes, he makes all void.” Collins v. Blantern, 2 Wils. 347. Hyslop v. Clarke, 14 Johns. Rep. 458. Austin v. Bell, 20 Johns. Rep. 442. Mackie al. v. Cairns & al. 5 Cowen, 547.; and in the case of Hyslop v. Clarke, before cited, it was said, by Van Mess, J. in delivering the judgment of the court, that "the better opinion seems to be, that now at common law, a deed fraudulent in part, is altogether void.” Fermors case, 3 Rep. 78. Wimbish v. Tailbois, 1 Plowd. 54. On this point, however, the cases are not uniform. Morton v. Simmes, Hob. 14. Malaverer v. Redshaw, 1 Mod. Rep. 35. By the act of the General Assembly, passed in May, 1826, relating to the levy of executions on real estate, it is declared, that no former levy of an execution shall be deemed void, because there were embraced in the return of officer’s fees other and greater than were by law allowable ; but that the liability of the officer shall in no way be altered or affected. Stat. 95. (sess. 1826.) sect. 2. The law, undoubtedly, is retrospective ; but is it unjust? All the charges of the officer on the execution in question are perfectly reasonable, and for necessary services in the performance of his duty ; of consequence, they are eminently just; and so is the act confirming the levies. A law, although it be retrospective, if conformable to entire justice, this Court has repeatedly decided, is to be recognized and enforced. Goshen v. Stonington, 4 Conn. Rep. 209. Mather v. Chapman & al. 6 Conn. Rep. 54. Every act of the legislature intrinsically implies an opinion, that the legislative body had right to enact it; and the judiciary [198] will discover sufficient promptitude, if it determine a law to be invalid, that operates by retrospection unjustly on person or property. This principle steers a correct medium, admitting the sovereignty of the legislature to do justice, by an act unquestioned by the court of law; while it equally repels the supposed uncontroulable omnipotence of the same body, to require the observance of an unjust law, in subversion of fundamental rights, and in opposition to the social compact. The question is not free from difficulty; but unless the doctrine sanctioned by the court be embraced, this extreme would be resorted to; that every retrospective law, however just or wise, affecting the property of an individual, must be considered as of no validity. And thus, in cases the most equitable and salutary, the judiciary must deny the legislative right to pass a law, oppressive to no one, and promotive of entire justice ; and this upon the authority of general principles. I am not speculatist enough to yield my sanction to this course of proceeding. Lanman, J. was of the same opinion.