Hine v. Belden

Waldo, J. There is great doubt whether the parties have, in their pleadings, presented the questions they have asked us to revise in a proper form, and we might perhaps be justified in refusing an examination of them on account of this — 389 — informality, but as they have both reated the special plea as a correct statement of the facts, and have asked our opinion upon them, we shall treat the subject as if it were presented in a strictly technical manner. The plaintiff in error claims that thepi-ocess pending before justice Foster on the 8th day of July, 1857, was civil process, and that therefore, as the justice was absent from Meriden on that day, it was competent for him, at any time within twenty days thereafter, to proceed to hear and try the case, on giving notice to the parties of the time and place of trial, in the same manner as he might have done in any civil suit; and that, inasmuch as said notice was given and a legal trial had before said justice Foster on the. 19th day of said July, and the liquor and vessels in question properly disposed of by the adjudication and order of said justice, the defendant in error can have no cause of complaint. The defendant in error insists that the proceedings before justice Foster on the 8th day of July, 1857, were criminal proceedings, and inasmuch as said justice Foster was not in the town of Meriden on that day, the proceedings then came to an end, and he was entitled to the property that had been seized by the officer on said proceedings. Both parties thus place their right to recover, not upon any informality in the pleadings, but upon the legal character of the proceedings before justice Foster on the 8th day of July, 1857. There can be no doubt that differences of opinion have existed in relation to the character of the proceedings under the 12th and 13th sections of the act for the suppression of intemperance, passed in 1854. „It is said that some of the judges upon the circuit have regarded these proceedings as civil, and have permitted the parties to testify, and the counsel for the prosecution to close the argument, while others have treated them as strictly criminal in all respects. It is possible that this difference of opinion led to the passage of the act of 1857, in these words : “All proceedings and prosecutions brought to obtain the forfeiture of any liquor under the 12th and 13th sections of the act for the suppression of — 390 — intemperance shall be held, and are hereby declared to be proceedings in rem, and not criminal proceedings, and shall be proceeded with as civil and not as criminal proceedings.” Acts of 1857, page 44. But. whatever may have led to the passage of this act, it is apparent from the language used that the legislature intended that there should no longer remain any doubt that the proceedings under the 12th and 13th sections of the act for the suppression of intemperance, are to be treated as civil and not as criminal proceedings. The defendant in error, admitting the general correctness of this position, insists that the proceedings in question were, at the time they were commenced, criminal proceedings; and that they can not be affected by any act of the legislature subsequently passed ; and that any construction of the statute above recited that would make it change the character of these proceedings, would make the statute retroactive in its operation,—a construction which courts will always studiously avoid. Were it necessary for us to express an opinion as to the character of these proceedings in their inception, we might not, upon this point, differ with the court below; but we are of opinion that the act of 1857 made these, as well as all other proceedings under the 12th and 13th sections of the act of 1854, strictly civil in their character. In coming to this result we do not intend to give, and we think we do not give, this act a retroactive operation by construction. This act went into operation on the 4th day of July, 1857. The proceedings in question were then pending. Up to that time they had been proceeded with as criminal proceedings. The act that became a law on that day provides that such proceedings shall be civil and not criminal. It merely changes the course of procedure from that time. It does not change any previous act, or profess to heal any error. It takes up the proceedings as they were, and changing the remedy, mitigates the severity of the practice under the previous law. In this aspect this statute is entirely prospective in its operation, affecting only proceedings thereafter to be had, and does not affect proceedings already had. The language of the statute justifies the views we have — 391 — taken of its meaning. The words are “all proceedings and prosecutions brought to obtain the forfeiture,” &c. The word “brought” implies past time, and includes prosecutions then pending as- well as those thereafter to be brought. These proceedings “are to be held and are declared to be proceedings in rémP This language is very appropriate if used in relation to proceedings then in being, but is inappropriate if applied solely to proceedings thereafter to be had. If the legislature intended to include only prosecutions thereafter to be brought, we think it would have used different language, expressive of such intention. , But the language of the statute is sufficiently comprehensive to include not only prosecutions to be brought but also prosecutions then pending, and is evincive of the intention of the legislature to make this act operative upon proceedings pending at the time it was passed. We have seen that this statute operates only upon the remedy. Statutes of this character have always been understood to apply to cases pending at the time they were passed. The law of 1855 abolishing the county court, and transferring the cases pending in those courts to the superior court, and thereby subjecting the parties, in some instances, to increased fees and expenses, has never been regarded as retroactive. So the law excusing a party from paying a duty on a continuance in the superior court after the first term, and the law limiting the length of the arguments of counsel, and other like laws, have all been held to operate upon suits pending when these laws were passed. In England it has been held that acts of parliament relating to procedure, as that for rendering interested witnesses admissible, and that which imposed on executors a liability to costs, applied, to cases pending at the time the acts respectively passed. In Boodle v. Davis, 22 Law Jour. N. S. 69, (S. C. 16 Eng. L. & Eq. Rep. 521,) owing to the first common law procedure act, execution was allowed to issue on a judgment without its being revived in a case in which a scire facias was necessary until that act was passed. (Cited in the case of Hughes v. Lumley, 28 Eng. L. & Eq. R., 233.) — 392 — But it is said that the case of Perkins v. Perkins, 7 Conn., 558, contravenes the views we have taken of this case. That was an action of debt brought to recover a penalty incurred by a breach of a certain by-law of the city of Norwich. The writ was dated May 27, and served May 28,1828, and was returnable to the city court of the city of Norwich on the second Monday of June, 1828. A trial was had in August, 1828, and judgment was rendered for the plaintiff. On motion of the defendant the court caused a record to be made that the title to land was in question on the trial, and thereupon the defendant appealed the case to the superior court. In the superior court a question was made whether the action was appealable. During the pendency of this suit and before its trial in August, 1828, the legislature passed an act providing “that whenever any action shall be brought to recover a penalty for the erection of any nuisance upon any public highway, &c., and the defendant shall justify himself by reason of his title to the land,” &c., “an appeal shall be allowed,” &c. The plaintiff insisted that this act could not affect a suit commenced before and pending at the time the act was passed. The court held that the act in question did not affect cases pending at the time it was passed; but their decision is placed upon the peculiar phraseology of the act. Hosmer, C. J., in giving the opinion of the court, says; “ The act alluded to, on the fairest principles of construction, authorizes appeals in cases posterior to the time of its legal commencement and in no other. The expression of it is future and prospective. ‘ Whenever an action shall be brought to recover a penalty’ is its phraseology. Had the legislature intended it, it were easy and natural for them to have said, in all actions for penalties appeals shall be allowed, &e.” It is apparent that the court regarded this act as having no effect on actions pending at the time it was passed because its language in terms included only actions thereafter to be brought. The language of the act of 1857 is different in its terms, and, as we have seen, includes prosecutions pending at the time it took effect as well as those thereafter to be brought. There is no confiiet between these cases, the gov — 393 — erning principle in both being the same, viz. the intention of the legislature ascertained from the language used. Upon the facts admitted we are of opinion that the plaintiff in error is entitled to judgment in his favor, and that the superior court erred in rendering judgment against him. The judgment of the superior courtis therefore reversed. In this opinion the other judges concurred. Judgment reversed.