Declaratory Statutes.

Legislation is either introductory of new rules, or it is declaratory of existing rules. "A declaratory statute is one which is passed in order to put an end to a doubt as to what is the common law, or the meaning of another statute, and which declares what it is and ever has been.1 Such a statute, therefore, is always in a certain sense retrospective; because it assumes to determine what the law was before it was passed; and as a declaratory statute is important only in those cases where doubts have already arisen, the statute, when passed, may be found to declare the law to be different from what it has already been adjudged to be by the courts. Thus Mr. Fox's Libel Act declared that, by the law of England, juries were judges of the law in prosecutions for libel; it did not purport to introduce a new rule, but to declare a rule already and always in force. Yet previous to the passage of this act the courts had repeatedly held that the jury in these cases were only to pass upon the fact of publication and the truth of the innuendoes; and whether the publication was libellous or not was a question of law addressed exclusively to the court. Thus the legislature declared the law to be what the courts had declared it was not. So in the State of New York, after the courts had held that insurance companies were taxable to a certain extent under an existing statute, the legislature passed another act, declaring that such companies were only taxable at a certain other rate; and it was thereby declared that such was the intention and true construction of the original statute.2 In these cases it will be perceived that the courts, in the due exercise of their authority as interpreters of the laws, have declared what the rule established by the common law or by statute is, and that the legislature has then interposed, put its own construction upon the existing law, and in effect declared the judicial interpretation to be unfounded and unwarrantable. The courts in these cases have clearly kept within the proper limits of their jurisdiction, and if they have erred, the error has been one of judgment only, and has not extended to usurpation of power. Was the legislature also within the limits of its authority when it passed the declaratory statute?

1 Bouv. Law Dic. "Statute."

People v. Supervisors of New York, 16 N. Y. 424.

The decision of this question must depend upon the practical application which is sought to be made of the declaratory statute, and whether it is designed to have practically a retrospective operation, or only to establish a construction of the doubtful law for the determination of cases that may arise in the future. It is always competent to change an existing law by a declaratory statute; and where it is only to operate upon future cases, it is no objection to its validity that it assumes the law to have been in the past what it is now declared that it shall be in the future. But the legislative action cannot be made to retroact upon past controversies, and to reverse decisions which the courts, in the exercise of their undoubted authority, have made; for this would not only be the exercise of judicial power, but it would be its exercise in the most objectionable and offensive form, since the legislature would in effect sit as a court of review to which parties might appeal when dissatisfied with the rulings of the courts.1 As the legislature cannot set aside a construction of the law already applied by the courts to actual cases, neither can it compel the courts for the future to adopt a particular construction of a law which the legislature permits to remain in force. "To declare what the law is, or has been, is a judicial power; to declare what the law shall be, is legislative. One of the fundamental principles of all our governments is, that the legislative power

1 In several different cases the courts of Pennsylvania had decided that a testator's mark to his name, at the foot of a testamentary paper, but without proof that the name was written by his express direction, was not the signature required by the statute, and the legislature, to use the language of Chief Justice Gibson, "declared, in order to overrule it, that every last will and testament heretofore made, or hereafter to be made, except such as may have been fully adjudicated prior to the passage of this act, to which the testator's name is subscribed by his direction, or to which the testator has made his mark or cross, shall be deemed and taken to be valid. How this mandate to the courts to establish a particular interpretation of a particular statute, can be taken for anything else than an exercise of judicial power in settling a question of interpretation, I know not. The judiciary had certainly recognized a legislative interpretation of a statute before it had itself acted, and consequently before a purchaser had been misled by its udgment; but he might have paid for a title on the unmistakable meaning of plain words; and for the legislature subsequently to distort or pervert it, and to enact that white meant black, or that black meant white, would in the same degree be an exercise of arbitrary and unconstitutional power." Greenough v. Greenough, 11 Penn. St. 494. The act in this case was held void so far as its operation was retrospective, but valid as to future cases. And see Reiser v. Tell Association, 39 Penn. St. 137.

If the legislature would

shall be separate from the judicial." prescribe a different rule for the future from that which the courts enforce, it must be done by statute, and cannot be done by a mandate to the courts, which leaves the law unchanged, but seeks to compel the courts to construe and apply it, not according to the judicial, but according to the legislative judgment.2 But in any case the substance of the legislative action should be regarded rather than the form; and if it appears to be the intention to establish by declaratory statute a rule of conduct for the future, the courts should accept and act upon it, without too nicely inquiring whether the mode by which the new rule is established is the best, most decorous and suitable that could have been adopted or not.

If the legislature cannot thus indirectly control the action of the courts, by requiring of them a construction of the law according to its own views, it is very plain it cannot do so directly, by setting aside their judgments, compelling them to grant new trials, ordering the discharge of offenders, or directing what particular steps shall be taken in the progress of a judicial inquiry.4

1 Dash v. Van Kleek, 7 Johns. 498, per Thompson, J.; Ogden v. Blackledge, 2 Cranch, 272.

Govenor v. Porter, 5 Humph. 165; People v. Supervisors, &c. 16 N. Y. 424 ; Reiser v. Tell Association, 39 Penn. St. 137; O'Conner v. Waner, 4 W. & S. 227; Lamberton v. Hogan, 2 Penn. St. 25.

3

In State v. Fleming, 7 Humph. 152, a legislative resolve that "no fine, forfeiture, or imprisonment should be imposed or recovered under the act of 1837 [then in force], and that all causes pending in any of the courts for such offence should be dismissed," was held void as an invasion of judicial authority.

Opinions of judges on the Dorr case, 3 R. I. 299. In the case of Picquet, appellant, 5 Pick. 64, the Judge of Probate had ordered letters of administration to issue to an applicant therefor, on his giving bond in the penal sum of $50,000, with sureties within the commonwealth, for the faithful performance of his duties. He was unable to give the bond, and applied to the legislature for relief. Thereupon a resolve was passed "empowering" the Judge of Probate to grant the letters of administration, provided the petitioner should give bond with his brother, a resident of Paris, France, as surety, and "that such bond should be in lieu of any and all bond or bonds by any law or statute in this commonwealth now in force required," &c. The Judge of Probate refused to grant the letters on the terms specified in this resolve, and the Supreme Court, while holding that it was not compulsory upon him, also declared their opinion that, if it were so, it would be inoperative and void. In Bradford v. Brooks, 2 Aik. 284, it was decided that the legislature had no power to revive a commission for proving claims against an estate after it had once expired. See also Bagg's Appeal, 43 Penn. St. 512. In Hill

And as a court must act as an organized body of judges, and, where differences of opinion arise, they can only decide by majorities, it has been held that it would not be in the power of the legislature to provide that, in certain contingencies, the opinion of the minority of a court, vested with power by the constitution, should prevail, and so that the decision of the court in such cases should be rendered against the judgment of its members.1

Nor is it in the power of the legislature to bind parties by a recital of facts in a statute, thereby making them evidence against parties interested. A recital of facts in the preamble of a statute may perhaps be evidence, where they relate to matters of a public nature, as that riots or disorders exist in a certain part of the country; but where the facts concern the rights of individuals, the legislature cannot adjudicate upon them. As private statutes are generally obtained on the application of some party interested, and are put in form to suit his wishes, perhaps their exclusion from being made evidence against any other party would result from other general principles; but it is clear that the recital could have no force, except as a judicial finding of facts; and that such finding is not a legislative act.3

v. Sunderland, 3 Vt. 507; and Burch v. Newberry, 10 N. Y. 374, it was held that the legislature had no power to grant to parties a right to appeal after it was gone under the general law. Besides the authorities referred to, to show that the legislature cannot grant a new trial, see Lewis v. Webb, 3 Greenl. 326; Durham v. Lewiston, 4 Greenl. 140; Bates v. Kimball, 2 Chip. 77; Staniford v. Barry, 1 Aik. 314; Merrill v. Sherburne, 1 N. H. 199; Dechastellux v. Fairchild, 15 Penn. St. 18; Taylor v. Place, 4 R. I. 324; Young v. State Bank, 4 Ind. 301; Lanier v. Gallatas, 13 La. An. R. 175; Miller v. State, 8 Gill, 145; Beebe v. State, 6 Ind. 515; Atkinson v. Dunlap, 50 Me. 111. In Burt v. Williams, 24 Ark. 91, it was held that the granting of continuances of pending cases was the exercise of judicial authority, and a legislative act assuming to do this was void.

1 In Clapp v. Ely, 3 Dutch, 622, it was held that a statute which provided that no judgment of the Supreme Court should be reversed by the Court of Errors and Appeals, unless a majority of those members of the court who were competent to sit on the hearing and decision should concur in the reversal, was unconstitutional. Its effect would be, if the court were not full, to make the opinion of the minority in favor of affirmance, control that of the majority in favor of reversal, unless the latter were a majority of the whole court. Such a provision in the constitution might be proper and unexceptionable; but if the constitution has created a Court of Appeals, without any restriction of this character, the ruling of this case is that the legislature cannot impose it. The court was nearly equally divided, standing 7 to 6.

Rex v. Sutton, 4 M. & S. 532.

Elmendorf v. Carmichael, 3 Litt. 478; Parmelee v. Thompson, 7 Hill, 80.

We come now to a class of cases in regard to which there has been serious contrariety of opinion; springing from the fact, perhaps, that the purpose sought to be accomplished by the statutes is generally effected by judicial proceedings, so that if the statutes are not a direct invasion of judicial authority, they at least cover ground which the courts usually occupy under general laws which confer the jurisdiction upon them. We refer to

Statutes conferring Power upon Guardians and other Trustees to sell Lands.

Whenever it becomes necessary or proper to sell the estate of a decedent for the payment of debts, or of a lunatic or other incompetent person for the same purpose, or for future support, or of a minor to provide the means for his education and nurture, or for the more profitable investment of the proceeds, or of tenants in common to effectuate a partition between them, it will probably be found in every State that some court is vested with jurisdiction to make the necessary order, if the facts seem to render it important after a hearing of the parties in interest. The case is eminently one for judicial investigation. There are facts to be inquired into, in regard to which it is always possible that disputes may arise; the party in interest is often incompetent to act on his own behalf, and his interest is carefully to be inquired into and guarded; and as the proceeding will usually be ex parte, there is more than the ordinary opportunity for fraud upon the party interested, as well as upon the authority which grants permission. It is highly and peculiarly proper, therefore, that by general laws judicial inquiry should be provided for these cases, and that these laws should provide for notice to all proper parties, and an opportunity for the presentation of any facts which might bear upon the propriety of granting the applications.

But it will sometimes be found that the general laws provided for these cases are not applicable to some which arise; or if applicable, that they do not always accomplish fully all that seems. desirable; and in these cases, and perhaps also in some others without similar excuse, it has not been unusual for legislative authority to intervene, and by special statute to grant the power which, under the general law, is granted by the courts. The