Barker v. Jackson ex dem. Henry.

A. VAN VECHTEN and A. GIBBS for the defendants, contended :

That the act appointing the commissioners is unconstitutional, and that all the proceedings under it are null and void.

1. That the act being retrospective in its operation, stands opposed to that part of the constitution of the United States which prohibits individual states from making any law impairing the obligation of contracts.

2. That the act is in contravention of the 13th article of the constitution of New-York, as it deprives the lessors of their freehold without the judgment of their peers, and without being called upon to answer by due course of law.

3. That the act is repugnant to the 41st article of the constitution of New-York, and also is prohibited by the 7th article of the constitution of the United States, as it institutes a new Court, whose proceedings are not in accordance with the course of the common law, and inasmuch as it abolishes the trial by jury.

S. M. HOPKINS and J. KING for the plaintiff, insisted

That the act in question, so far as it regards the present action, is an act of limitation merely; that it only affects the remedy of the lessors of the plaintiff, without necessarily involving the question as to the validity of the award of the commissioners.

THOMPSON, J. THIS case comes up on a writ of error to the District Court for the Northern District of this state. The judgment of the Court below was given upon a special verdict found by a jury. By which finding and the judgment of the Court thereupon, as appearing in the record, the only question presented to this Court is, whether the act of the

Barker v. Jackson ex dem. Henry.

legislature of the state of New-York, entitled "an act to settle disputes concerning the titles to lands in the county of Onondaga," passed 24th March, 1797, and the acts and doings of the commissioners under that law are void, as being repugnant to the constitution of the state of New-York, or of the United States? This act and the proceedings of the commissioners were adjudged by the Court below to be unconstitutional and void. If this judgment is to be upheld and sanctioned, and the titles in that part of the state usually called the Military Tract, again thrown open to litigation, it ought to be called for by the most cogent and unyielding considerations.

This act has been in force for nearly thirty years, and the value of the lands settled and held under its provisions is almost incalculable. It is not undeserving of consideration, that this act, before it could become a law, must have received the approbation of the Council of Revision, composed of the Governor, the Chancellor, and Judges of the Supreme Court of the state, whose peculiar duty it was to examine and guard against any infringement of the constitution. And what is of still more importance is, that whenever the validity of this law has been in any manner called in question, it has uniformly received the sanction of the Courts of Justice in this state; and indeed such has been the universal understanding in favour of its validity, that the opposite opinion has not been deemed worthy of an argument. The only case in which the point was directly made, was that of Jackson ex dem. Lepper v. Griswold, decided in the year 1808. And this case was submitted without argument, and the point passed over by the Court as not susceptible of a doubt.

But if the question was doubtful, and even if the weight of argument was against the validity of the law, after the lapse of thirty years, and the uniform sanction of the Courts of the state, this Court would feel itself bound by the construction of the

Barker v. Jackson ex dem. Henry.

state Courts. This law, in its operation and application to the rights of parties, has never been considered by the state tribunals as any thing more than a statute of limitations; and such decisions upon a local law which forms a rule of property, have always been held by the Courts of the United States in the highest respect, and in fact have been considered as having a decisive and controlling influence.

This rule is very broadly laid down by the Supreme Court in the case of Elmendorf v. Taylor,d where it is said, "This Court has uniformly professed its disposition in cases depending on the laws of a particular state, to adopt the construction which the Courts of the state have given to those laws. This course is founded on the principle supposed to be universally recognised, that the judicial department of every government where such department exists, is the appropriate organ for construing the legislative acts of that government. Thus no Court in the universe which professed to be governed by principle, would, we presume, undertake to say that the Courts of Great Britain or of France, or of any other nation, had misunderstood their own statutes, and therefore erect itself into a tribunal to correct such misunderstanding. We receive the construction given by the nation as the true sense of the law, and feel ourselves no more at liberty to depart from that construction than to depart from the words of the statute. On this principle, the construction given by this Court to the constitution and laws of the United States is received by all as the true construction; and on the same principle, the construction given by the Courts of the several states to the legislative acts of those states, is received as true, unless they come in conflict with the constitution, laws, or treaties of the United States."

It is not here said in terms, that the Courts of the United States will follow the construction given by the state Courts

d 10 Wheat. 159.

Barker v. Jackson ex dem. Henry.

to their statutes, when the objection grows out of a supposed conflict between the law and the constitution of the state, but the principle embraces such a case, and all the reasoning from it necessarily leads to the same result.

As, therefore, the settled construction given to this law by the state Courts is, that it is merely a statute of limitations, and in no manner repugnant to the constitution, I might dispense with any further examination of the question, so far as the state constitution may be involved; and indeed, if it is only a statute of limitations, the constitution of the United States can have no bearing upon the question.

A due respect, however, for the opinion of the Judge who has pronounced this law unconstitutional and void, may make it proper that I should give to the question some further con

sideration.

The principal ground of objection to this law, arises out of the 41st article of the constitution of New-York: By which it is declared, " that trial by jury, in all cases in which it has heretofore been used in the colony of New-York, shall be established and remain inviolate for ever. And further, that the legislature of this state shall at no time hereafter, institute any new Court or Courts, but such as shall proceed according to the course of the common law.”

The first inquiry that seems naturally to arise is, whether the board of commissioners appointed and organized under this act, was a Court within the sense and meaning of the article in the constitution above referred to. If it was, it is very certain that their proceedings were not according to the course of the common law, and its institution was in violation of the constitution; if it was not a Court, the constitution has no bearing upon it.

It is very evident that the legislature did not consider it a Court, nor that the commissioners were in any sense to be

Barker. Jackson ex dem. Henry.

considered officers, any more than arbitrators or referees would be so considered; for they were named and appointed in the act; whereas if they were officers, they must have been appointed by the Council of Appointment, according to the provisions of the 23d article of the constitution; and to consider this board a Court and its members not officers, would be contrary to all legal understanding of the character of the members of a Court. Nor does the act in any part of it give to this board the title, or denomination of a Court; or vest in the commissioners, the usual and ordinary powers of a judicial tribunal. They had no authority to compel parties to appear before them, nor are required to give them personal notice; all appearances were voluntary, and optional in the parties interested in the land. The decision of the commissioners is called an award, or determination; and not a judgment or decree. No power is given to the commissioners to enforce their award or determination, by execution or otherwise. They were to cause their award to be entered in a book for that purpose to be provided; and with this ended their functions.

And the act declares, that such award or determination shall, after the expiration of two years after the making thereof, become binding and conclusive to all persons, except such as conceiving themselves aggrieved, shall within the two years dissent from the same, and give notice thereof to the commissioners, or file the same in the office of the clerk of the county of Onondaga; and shall also, if not in the actual possession of the land, within three years after such award, commence a suit either at law or in equity, to recover the land, or to establish his or her right to the same, and prosecute the same to effect; in which case the award shall not operate as a bar to the suit. The suit required to be commenced within the three years, was to establish the right. This of course could not have been settled by the award; nor can this suit so re