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STATUTE DIVESTING RIGHTS UNDER PRETENSE OF REGULATING REMEDIEA

is as objectionable as if attacking the rights directly. VESTED Rights, GUARDED AGAINST LEGISLATIVE INTERFERENCE, are such

as may be adhered to without violating any principle of sound morality, OBJECTION THAT JUDGMENT DOES NOT CONFORM WITH REPLICATION is not

good when the plea is bad, for where there is no plea, judgment may be

rendered upon the declaration. JURY IS UNNECESSARY IN ACTIONS FOUNDED ON BILLS OBLIGATORY

ACTION of debt brought by appellee upon a single bill. One of the defendants, Baugher, pleaded usury, under the statute of 1704. Plaintiff filed a replication, praying judgment upon the principal sum of the single bill, with interest at six per cent. per annum, to be ascertained by the verdict of a jury, according to the act of 1845, chapter 352. A demurrer by defendant Baugher to this replication was overruled, and judgment rendered for the plaintiff to the amount of the single bill, with damages and costs. Defendants appealed.

F. A. Schley, for the appellants.
Joseph M. Palmer, for the appellee.

By Court, MARTIN, J. In this case an action of debt was instituted in Frederick county court on a single bill, executed on the eleventh of August, 1840, by which the appellants stipulated to pay to the appellee the sum of three hundred and fifty dollars, with interest from the date of the note. It appears from the record that John Baugher, one of the appellants, appeared in court, and pleaded in bar of the action the statute of usury of 1704, chapter 69, in force at the time this loan was made and the contract created. This suit was instituted on the fourth of September, 1846, and to this plea in bar of the action upon the ground of usury, the plaintiff filed a replication, in which he averred that the suit was brought to recover the sum due on the note, with legal interest thereon, and prayed judgment for such sum as might be ascertained by a jury to be fairly and actually due, in conformity with the provisions of the act of assembly of 1845, chapter 352. To this replication a general demurrer was interposed. Judgment was rendered upon this demurrer, in favor of the plaintiff, and upon an appeal from this judgment of the county court, the case has been brought here for our examination and revision.

We have already stated that the plea filed in this case by the defendant was grounded on the usury act of 1704, chapter 69. If that act is to be treated as unrepealed, and in force with re spect to this particular transaction, then the plea must, of

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course, be held as an absolute bar to the action. If, on the contrary, the act of assembly of 1704, chapter 69, is to be considered as abrogated, with reference to this contract, by the act of 1845, chapter 352, then the plea is defective, as it does not conform to the provisions of the latter statute; and judgment would be rendered upon the general demurrer, which brings before the court the whole record, against this plea, as containing the first vice or imperfection: Morgan v. Morgan, 4 Gill & J. 398; State v. Nicols, 10 Id. 27. It is apparent, therefore, that the controversy in this case rests entirely upon the legal sufficiency of this plea. A question, the solution of which depends upon the further questions, whether the act of 1845, chapter 352, is to be interpreted as embracing this particular case; and if so, whether it is to be enforced by the courts as a valid and constitutional act within the range and scope of the legislative power.

The point made by the counsel for the appellant, that this act is to be construed by the court as prospective in its operation, and intended by the legislature to apply only to such contracts as were created after its enactment, can not be maintained. The wisdom and inherent justice of the rule which declares that, in all cases susceptible of doubt, and where the statute is open to interpretation, it shall be so construed as to operate prospectively, is admitted to its utmost extent. It is founded upon the presumption that the legislature did not intend to make a new rule for past transactions. Nova constitutio futuris formam debet imponere, non præteritis.

But this general principle, salutary and well established as it is, as an element of jurisprudence, can have no application to a case where the legislature have declared, in language too express and plain to be mistaken, that they designed to give to the statute in question a retroactive operation. In such a case there is no room for interpretation. Whether an act possessing this retroactive character is to be condemned as an unconstitutional and unauthorized exercise of legislative power, is another question; but nothing can be more clear than that so long as this act is recognized as a valid and operative statute, it must be enforced in accordance with the will of those who created it. In the case of Goshen v. Stonington, 4 Conn. 220 [10 Am. Dec. 121], the supreme court of Connecticut, when speaking upon this subject, said: “It must be admitted, that by construction, if it can be avoided, no statute should have a retrospect anterior to the time of its commencement. This principle is founded on the supposition that laws are intended to be prospective only. But when a statute, either by explicit provision or necessary implication, is retroactive, there is no room for construction; and if the law ought not to be effectuated it must be on a different principle."

This is the predicament of the act of 1845, chapter 352. It was passed on the tenth of March, 1846, and declares, " that in any suit or action hereafter to be brought in any court of law or equity in this state, upon any bond, etc., or upon any contract, etc., whether the same relate to the loan of any money, etc., in which any person shall seek to avail himself of the provisions of the act of assembly of 1704, it shall be incumbent on such person specially to plead the same, and in such plea to set out the sums, both principal and interest, actually and fairly due on such bonds, etc., estimating the principal debt actually loaned or contracted for, with interest thereupon, at the rate of six per cent. per annum.” The expressions of this statute are too clear and explicit for dispute. There is no room for construction. The language of the act is, “ that in any suit hereafter to be brought," etc. That is, in any suit brought after the tenth of March, 1846, it shall be incumbent on the defendant to plead as required by its provisions. This action was instituted on the fourth of September, 1846, and it is impossible to do otherwise than determine that this case is covered by the act of 1845 although the note in controversy was executed many years before its enactment.

The next question presented for our examination is, whether the act of 1845, assuming it to be retrospective in its character, is to be treated as an unconstitutional exercise of legislative power, so far as it operates upon pre-existing contracts. Questions of this kind are always regarded by the courts as the most important that can be submitted for their adjudication. It is certainly the attribute of the judicial tribunals, in this country, to annul an act of the legislature, when it is manifest to the courts that in passing it the legislature have violated or abused the powers granted to them by the people. But this high power is to be exercised with the most guarded circumspection and care. An act emanating from a co-ordinate branch of the government is presumed to be valid. And all agree that it is incumbent upon those who assail a statute on the ground of its invalidity to make out a clear case of legislative usurpation. We proceed to inquire if this act is obnoxious to the objections which have been urged against it.

We did not understand the counsel for the appellant as con. tending that this act was to be considered as unconstitutional, upon the ground of its repugnancy to the tenth section of the first article of the constitution of the United States, prohibiting the states from passing ex post facto laws, or laws impairing the obligation of contracts. There certainly could be no foundation for such a proposition. This law, although retroactive in its character, has none of the characteristics of an ex post facto law, as that phrase was understood by the convention who framed and the people who adopted the federal constitution. An ex post facto law relates to crimes, and has no application to private rights or civil remedies: Calder v. Bull, 3 Dall. 386; Fletcher v. Peck, 6 Cranch, 87. It is equally clear, that the statute in question can not be regarded as violating the obligation of any contract. There is no contract invaded by it. So far as it operates upon the contract of loan, it upholds and sustains it in part: Andrews v. Russel, 7 Blackf. 475. And it is now established, by the adjudications of the supreme court, that even if this act could be regarded as divesting, by its retroactive operation, vested rights, it would not, for that reason, be treated as an infraction of the constitution of the United States: Salterlee v. Matthewson, 2 Pet. 413; IVatson v. Mercer, 8 Id. 110; Charles River Bridge v. Warren Bridge, 11 Id. 540.

In Satterlee v. Matthewson, 2 Pet. 413, the court said: “The state law is said to be retrospective. Be it so; but retrospective laws, which do not impair the obligation of contracts, or partake of the character of ex post facto laws, are not condemned or forbidden by any part of the constitution of the United States.”

In Watson v. Mercer, 8 Pet. 110, the court declared that they had no power“ to pronounce an act of the state legislature void, as contrary to the constitution of the United States, from the mere fact that it divests antecedent vested rights of property. The constitution of the United States does not prohibit the states from passing retrospective laws generally, but only ex post facto laws." The principles thus enunciated were quoted with approbation and reaffirmed by Mr. Chief Justice Taney, in delivering the opinion of the court in the case of Charles River Bridge v. The Warren Bridge, 11 Id. 540.

It is impossible to maintain that the act of 1845 can be considered as violating any of the prohibitions or restrictions on the legislature, to be found in the bill of rights, or constitution of the state of Maryland. In the bill of rights, article 15, it is

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declared," that retrospective laws, punishing facts committed before the existence of such laws, and by them only declared criminal, are oppressive, unjust, and incompatible with liberty; wherefore, no ex post facto law ought to be made." This article by its very terms, is confined to retrospective criminal laws, meaning ex post facto laws. It is a recognition of the right in the legislature to pass retrospective laws, so far as they relate to civil cases and contracts. Expressio unius, exclusio alterius. Our books of statutes are filled with retrospective laws, healing imperfect deeds, or validating defective acknowledgments, which have been rarely impeached, and when assailed, have been invariably sustained by the decisions of the courts.

The counsel for the appellant has, however, contended that at the time this contract was made, it was tainted with usury; and that, as the law then existed, there was vested in him the right to declare the contract void, as usurious, and to repudiate it; that by the act of 1815 he has been divested of this right; that a statute thus retrospectively divesting him of a vested and valuable right, was an arbitrary act, violatory of the first rules of right and justice, and contrary to the fundamental principles of the social compact; that an act of this character is not in the nature of legislative power, and that it is, therefore, to be treated as unauthorized and void, in the absence of any express prohibition to be found against it in the constitution of the United States, or in the constitution of this state: Calder v. Bull, 3 Dall. 388; Fletcher v. Peck, 6 Cranch, 135; Regents of University v. Williams, 9 Gill & J. 408 (31 Am. Dec. 72).

The argument on this point was pressed upon the court by the counsel with great force and ingenuity. We have carefully considered it, and think that when the rights of the borrower and lender of money on a usurious contract, as they existed under the usury act of 1704, chapter 69, are carefully examined, it will be seen that it is impossible to view the act of 1845 in any other light than as regulating the remedies with respect to such contracts, and in thus modifying and altering the remedy to impose upon the usurious borrower, as a condition on which alone he is to be relieved from the payment of the excessive interest, the performance only of a moral duty, from the discharge of which no correct man should seek to escape.

In Trumbo v. Blizzard, 6 Gill & J. 18, the court of appeals, following in this respect the line of the English adjudications, determined that a mortgagor who goes into a court of equity seeking to be relieved against a usurious mortgage, will only be

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