of the cases, we are not prepared to hold that the plaintiff in this action may not insist upon his complete legal and equitable title, without violating any principle of morality.31 Admitting that the estate of the ancestor comes to the heir burdened with the debts of the former, it is still the right of the latter, when courts are organized or are required by the constitution to be organized for the settlement of the estates of decedents, to have the debts ascertained and the property applied by a tribunal of competent jurisdiction. And, upon any theory, the doctrine of estoppel, which is claimed to impose an imperfect duty capable of being ripened into a perfect obligation by the legislative will, can have no application, unless a party, by his own contract or other voluntary act, has placed himself in such an attitude that it would be a violation of sound morality on his part for him to adhere to and insist on his legal and equitaable rights. It ought not to be made to apply to this plaintiff merely because he was a party, as an infant, to a pretended legal proceeding."'342 341 9 Gill, 299. 342 Pryor v. Downey, 50 Cal. 403. CHAPTER VII. CONSTITUTIONALITY OF SPECIAL STATUTES AUTHORIZING INVOLUNTARY SALES. SECTION 61. General Nature of Legislative Sales and of the Statutes under which they are made. SEC. 62. Of the Power of the Legislature to Provide for the Involuntary Sale of Property. SEC. 63. The Constitutionality of Special Laws Authorizing Sale of Property Denied. SEC. 64. The Constitutionality of Special Laws Authorizing Sale of Property Sustained. SEC. 65. Acts Authorizing Sales by Administrators, Constitutionality Affirmed. SEC. 66. On whom Power of Sale may be Conferred by Special Acts. SEC. 69. Acts Authorizing the Sale of the Lands of Co-tenants. SEC. 61. General Nature of Legislative Sales and the Special Acts under which they are Made.-A question very closely allied with judicial sales, is that of involuntary sales made by authority of the legislature, without the assent of the owner of the property, and in the absence of any judicial declaration concerning the necessity or propriety of the sale. Many special statutes have been enacted purporting to confer authority on guardians, administrators, trustees and other persons to sell and convey the estates of their wards or of minor heirs, or of cestuis que trust. Sometimes entire strangers have been appointed as commissioners, and invested with powers of sale. Generally, in statutes of this character, the legislature assumes the existence of a state of facts, making a sale either necessary or expedient; and, therefore, empowers some one to make a sale, either according to his discretion, or in the manner and under the circumstances designated in the special statute. Frequently bonds are exacted for the purpose of avoiding the misappropriation of the funds to be realized. Often a report of the sale is required to be made to some judicial tribunal. The functions of this tribunal are usually restricted to enquiring and determining whether the sale has been conducted in conformity with the special act. Whether the sale be required to be confirmed by some court or not, it is evident that the authority for selling is purely legislative. This class of sales may, therefore, be styled "legislative sales." SEC. 62. Of the Power of the Legislature to provide for the Involuntary Sale of Property.-There can be no question of the authority of the legislature, by general laws, and in proper cases, to authorize the compulsory alienation of real and personal property. The power of the English Parliament is absolute. It can regulate the succession to the crown, or alter the established religion of the land. Theoretically, at least, it has uncontrovertible dominion over both persons and property. Hence, it is no cause for wonder that "private acts of parliament" are recognized as among the "assurances by matter of record." In this country, however, the legislature of every state possesses an authority much more restricted than that of Parliament. In none of our courts would a statute purporting to take property from one person and vest it in another, be treated with any respect. The constitutions of most, and perhaps of all of our states vest the legislative and the judicial functions of government in separate tribunals, and forbid either tribunal from encroaching upon the jurisdiction of the other. Hence, a statute professing to determine the conflicting claims of title would be as inoperative as a statute directly transferring title from one person to another. But every legislature possesses powers under which it may enforce the collection of debts, provide for the management of the property of persons incapable of caring for themselves, and also for the partition of estates held in co-tenancy. The exercise of these powers often involves the compulsory sale of property. Before a debt can be collected by legal compulsion, its existence must be determined. This determination can be made only by some judicial authority. Hence, a statute declaring that A is indebted to B, or that the lands of A shall be sold to pay the debts owing from him to B, is unquestionably void, unless the legislature enacting it was competent to exercise judicial functions, or the existence of the debt from A to B is settled by some judicial tribunal. So, if A should die, his heirs would unquestionably succeed to his estate, subject to the right of his creditors to enforce their claims against the estate; and also subject, in case of the minority or other incapacity of the heirs, to the power of the government to make the estate contribute to their education or support. But the existence of debts against A could, during his lifetime, be established only by judicial inquiry. Does this inquiry become any less judicial or any more legislative in its nature by reason of A's death? So, in the event that the minor or other heirs of A are alleged to be in circumstances in which the sale of their estate is either essential to their support or highly beneficial to their interests, the truth of the allegation ought to be determined in some manner; and this determination, if it does not invariably call for the exercise of judicial functions, can unquestionably be most satisfactorily accomplished through their aid. Hence, the compulsory sale of property is usually governed by general laws, under which the necessity and expediency of the sale are made the subject of judicial inquiry, and the authority to proceed depends upon the judgment or order of some judge or court. Any departure from these general laws is fraught with great danger, and is likely to result in inconsiderate action, if not in unmitigated plunder. Hence, in nearly onehalf of the states of this Union, constitutional provisions. directly inhibit special laws licensing the sale of the lands. of minors and other persons under legal disability.343 343 Cooley's Const. Lim., 3d ed., p. 107, note. SEC. 63. The Constitutionality of Special Laws for the Sale of Property Denied.-In those states whose constitutions do not directly forbid the enactment of special laws authorizing one person to sell the property of another, such laws have, when drawn in question before the courts, been assailed: 1st, as contravening the spirit of constitutional provisions requiring all laws of a general nature to have a uniform operation; 2d, as in opposition to that provision of the Constitution of the United States, which is also incorporated in most of the state constitutions, that no person shall be deprived of life, liberty or property without due process of law;344 and, 3d, as involving the exercise of judicial functions not possessed by the legislature. The House of Representatives of the State of New Hampshire, in June, 1827, asked the judges of the Supreme Court of judicature of that state the following question: "Can the legislature authorize a guardian of minors, by a special act or resolve, to make a valid conveyance of the real estate of his wards?" The judges answered as follows: "The objection to the exercise of such a power by the legislature, is, that it is in its nature both legislative and judicial. It is the province of the legislature to prescribe the rule of law; but, to apply it to particular cases, is the business of the courts of law. And the thirty-eighth article in the bill of rights declares that, in the government of this state, the three essential powers thereof, to wit., the legislative, executive and judicial, ought to be kept as separate from, and independent of each other as the nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity.' The exercise of such a power by the legislature can never be necessary. By the existing laws, judges of probate have very extensive 344 This provision may be found in both the fifth and the fourteenth amendments to the Constitution of the United States. As employed in the former, it is a limitation on the powers of the General Government only. In the latter amendment, it is designed as a limitation on the powers of the states. See citations numbers 328 and 329. |