OLNEY v. ARNOLD

Olney, the Defendant in the court below, pleaded that by the 41st section of the act of Congress, passed on the 4th of August, 1790, "to provide more effectually for the collection of the duties, c." it is declared that all duties on goods, wares and merchandize imported, shall be paid, or secured to be paid, before a permit shall be granted for landing the same:" and that "no person whose bond for the payment of duties is due and unsatisfied, shall be allowed a future credit for duties, until such bond shall be fully paid, or discharged;" that on the 17th of January, 1792, Arnold being indebted for duties, gave a bond for the amount, payable on the 17th of May, ensuing; that on the 5th of November 1792, the term for payment of the bond was elapsed, but the same then remained unpaid and undischarged; that Arnold was the real owner of the cargo, but had fraudulently transferred it to Dexter, in order to obtain a credit at the Custom-house; that, though Dexter had tendered a bond on the 7th of November, it was rejected by virtue of the recited act of Congress; and that a permit had been refused until the duties of the cargo were paid, or Arnold's old bond was discharged. To this plea the Plaintiff below demurred, and assigned the following causes of demurrer: Ist, Because the matters contained in the plea might be given in evidence, if at all, under the general issue; and they amount to no more than the general issue 2d, Because the plea states the property of the cargo to be in Arnold, and does not traverse the property of Dexter therein. 3d, Because it does not appear that the old bond given by Arnold was unsatisfied after the 5th of November 1792. 4th, Because the bond given by Arnold was for his own proper debt, and the bond tendered by Dexter was for his own proper debt: And 5th, because the plea is inconsistent, uncertain, not issuable, and wants form. The Defendant joined in demurrer: and, thereupon, the Court of Common Pleas, for the County of Providence, decided that the plea was a sufficient bar to the action; and, in December 1792, gave judgment for the Defendant accordingly. From this judgment the Plaintiff appealed to the superior court of judicature, where it was adjudged, in December 1794, that the plea in bar was not sufficient; and the cause was remitted to the County Court for trial. On the trial, the Jury gave a verdict for the Plaintiff, damages £ 13 5s. with costs: and the Defendant below brought the present writ of error, to remove the proceedings into the Supreme Court of the United States; the construction and validity of the act of Congress, under which the Defendant justified, being involved in the decision of the State Court. Constitution of the United States, art. 3. s. 2. Laws of the United States, I Vol. p. 63. s. 25. Two leading questions were made in this case? Ist, Whether the plea was a sufficient bar to the action? — particularly on the ground of the third cause assigned upon the demurrer; as the Defendant only alledged Arnold's old bond to be unpaid on the 5th of November, whereas he admitted a tender of a bond for the duties on the 7th of November. And 2d, Whether the superior court, on whose judgment the writ of error was brought, or the General Assembly, was the highest Court of Law or Equity of the State of Rhode Island, in which a decision of the fact could have been had? The first question was argued at the last term, by Pringle and Dexter, for the Defendants in error, and by Lee, Attorney General, for the Plaintiff in error: but THE COURT declaring it to be unnecessary to give any opinion on the principal case, till it was decided, whether the record was regularly before them, directed the second question to be discussed at the present term; when Lee, Attorney General, again argued for the Plaintiff in error, and Ingersoll for the Defendant. The Attorney General, in contending that the writ of error was well brought, stated, that there could be no doubt, that this court had jurisdiction in the present cause, as it appeared upon the record, that the construction of an act of Congress, under which the collector justified, had been drawn into question, and no other error could be assigned. He said, that there were two obvious reasons, why the Legislature of Rhode Island, could not be considered as the court contemplated by the law: for, in the first place, it must be a court of law or equity , in which a decision of the suit could be had. A decision imports a final determination between the litigants; and not a partial adjudication, which settles one point of the controversy, and refers the rest to another tribunal. Though, therefore, the Legislature should be vested with an equitable power, to examine the proceedings of a court of law, and, if it thinks proper, to direct a new trial; this cannot be regarded as constituting a court of law, within the meaning of the act of Congress. But in the second place, it must be a court of law or equity, from which a writ of error could be obtained. The 25th sect, of the judicial act requires, that the citation without which, a writ of error cannot be available, should be figned by the Chief Justice or Judge, or Chancellor of the court, rendering or passing the judgment or decree complained of; and no such officer is a constituent part of the legislature. The jurisdiction of the general assembly in matters of law, depends on an act of their own body. Laws of Rhode island, p. ELSWORTH, Chief Justice. As this is a question of law, it is not material to enquire, whether it was the superior court of equity. CHASE, Justice. The citation may likewise be signed by a justice of this court. Lee, Attorney General. True; but the act contemplates giving an alternative to accommodate the party. The act is in the following words: "An act directing the method of preferring petitions unto the general assembly, and of acting thereon. Be it enacted by the general assembly, and by the authority thereof it is enacted, that whenever any person or persons shall prefer a petition to the general assembly, praying, that any judgment, rule of court, or determination whatever may be set aside, and that execution may be stayed, he or they so petitioning shall, at least three weeks before the session of the general assembly to which such petition shall be preferred, deliver and lodge his or their petition in the secretary's office; and giving bond in the said office with one sufficient surety, in such sum as he, the secretary, considering the nature of such suit or executions shall think meet: the condition of which bond shall be for the payment of all lawful costs and damages, which the adverse party shall sustain by means of preferring such petition; and, that thereupon, the secretary shall issue a citation, for the adverse party to appear (if he or they shall think sit) at the session of the general assembly, to which such petition shall be preferred, to shew cause why such petition should not be granted; and the adverse party shall be served with such citation, and a copy of such petition, by the sheriff of the county, or his deputy, where he or they may dwell, ten days at least before such session of the general assembly; and is such person or persons cannot be found by the sheriff or his deputy, then, the leaving a copy of the petition and citation at the usual place of his or their abode, shall be deemed a good service; and the sheriff or deputy shall make return of all his proceedings to the clerk of the lower house, at the first opening of the general assembly. And that when any petition shall be called for trial, if there be not a proper return made by the sheriff or his deputy, that the adverse party hath been duly notified as this act requires, such petition shall be immediately dismissed. And be it further enacted by the authority aforesaid, That when any petition shall be received by the general assembly, the granting the prayer whereof may by any means relate to or concern the interest, property, or character of any other person or persons whomsoever, that in such case every such petition shall be referred to the next session of assembly, and the person or persons so petitioning, shall within ten days after the rising of the assembly, give bond in manner as afore directed; and all persons so concerned shall be duly served with a copy of such petition, and the vote of assembly thereon, and be cited in manner as aforesaid; and if the person or persons so petitioning shall neglect to give bond as aforesaid, then such vote or order of the General Assembly referring such petition, shall be void and of no effect. And be it further enacted by the authority aforesaid, That at the beginning of every session of the General Assembly, a time shall be assigned for the hearing and determining all petitions pending before them; and the Clerk of the Lower House shall make a docket of all such petitions in the same manner as the Clerks of the Courts of Common Pleas do of actions, always noting in the margin the time when each petition was filed or received; which docket shall be set up in view in the House where the Assembly shall sit, with a note at the bottom thereof, of the Page 312 time appointed for their being heard: That each petition shall be called for and determined in its proper course as it stands upon the docket; and if the Petitioner being called, doth not appear, his petition shall be immediately dismissed, but if he doth appear to enforce his petition, and the respondent upon being thrice called, shall not appear, the prayer of the petition shall be granted, if the same be reasonable. And be it further enacted by the authority aforesaid, That no petition shall be received by the General Assembly, except the Petitioner shall pay the fees established by law; and that the same costs be allowed and taxed upon petitions preferred to the General Assembly, in all respects and in every particular as are allowed by law, in cases before the inferior Courts of Common Pleas; and the bills of costs shall be taxed by the Clerk of the Lower House, and allowed by the Secretary: That the Secretary shall grant execution for all costs, returnable to the next succeeding General Assembly: And that the Secretary and the Clerk of the Lower House, shall be allowed the same fees, in all respects, upon petitions as are allowed to the Clerks of the Superior Court of Judicature in causes before the said Court. And be it further enacted by the authority aforesaid, That when any new trial shall be awarded by the General Assembly, to any person or persons, the party obtaining such new trial, shall pay all lawful costs and damages that he or they may have put the adverse party to, in defending against such petitions, unless he or they shall upon such new trial obtain some alteration of the former judgment, in his or their favour. And be it further enacted by the authority aforesaid, That when any person or persons shall sustain any damage by reason of any petition preferred to the General Assembly, concerning which bond shall have been entered into as aforesaid: the Secretary shall deliver such bond to the person or persons so aggrieved, who may bring a suit on such bond against the persons who gave the same: and the Judges of the Court where such suit shall be brought, are empowered to hear the parties concerning all matters of damages, as herein before expressed; and on hearing justly and equitably to determine the damages the party or parties complaining hath or have sustained by staying the execution or other proceedings in such cause, or granting a new trial therein; and also to reduce the sum mentioned in such bond, to just damages and to award execution accordingly. And be it further enacted by the authority aforesaid, That every person who shall prefer a petition to the General Assembly, for an act of insolvency, shall exhibit therewith a just and true inventory of all his real and personal estate, and also of what estate he may have in reversion or remainder, which shall be sworn to before an assistant justice, or warden in the county wherein the petitioner shall dwell or be consined; and if such petition be received, the inventory shall be lodged with the Clerk of the Lower House, who shall give copies thereof to any creditor requiring the same: And if such petition be finally granted, the Clerk of the Superior Court, in the county where Page 313 the petitioner shall dwell or be confined, shall notify the creditors to appear, before the judges of the said court, to nominate commissioners, c. by an advertisement, to be inserted three weeks successively, in the several papers, where the principal creditors live. Provided nevertheless, and be it further enacted by the authority aforesaid, That all matters and regulations in this act, be extended to private petitions only, between party and party, any thing herein before contained to the contrary notwithstanding. But, however extensive this power may appear to be, it is wholly of an equitable kind. The Legislature may, like a Chancellor, review the determinations of the courts of law, and direct the issue to be again tried; but it is not itself a court in which an ultimate decision can be had. The jurisdiction of the court, on whose judgment the present writ of error is brought, is of a very different description, in its constitution, as well as in the effect of its adjudicationsfn_. The appeal was carried from the inferior court into that court, as to the highest court of common law; and is thence brought regularly hither. But if any doubt shall exist upon the subject, the construction should be in favour of that general principle, in the policy of all well regulated, particularly of all republican, governments, which prohibits an heterogeneous union of the legislative and judicial departments. Ingersoll, in reply, classed his arguments under three points of enquiry: — 1st. Is the Legislature of Rhode Island a court? 2d. Is it a court of law? — and, 3d. Is it a court capable of giving a decision within the meaning of the act of Congress? I. By the act of the general assembly, the Legislature of Rhode Island is expressly constituted a court, super-eminent in its jurisdiction; though, perhaps, novel in its formation and effects. The characteristic of a superior court of law, is the power of calling parties before it, in order to affirm or reverse the judgments of inferior tribunals. This cannot be done by a court of equity; nor can it be done by a legislative body, in its ordinary capacity: and yet it can be done by the general assembly of Rhode Island, sitting as a court of law, under the authority of a legislative act. For such occasions, a regular docket is kept; the causes are entered; the parties are called upon in the course of the term; a clerk is employed; and the judgment of the inferior court may be reversed. It is true, that the general assembly cannot try a fact; but neither can the House of Peers; yet, that is, undoubtedly, the highest court of justice in Great Britain. It is, likewise, true, that the act of Rhode Island does not say any thing respecting the power of the general assembly, to affirm a judgment; but if they refuse to interfere upon any petition, is not the refusal, virtually, an affirmance of the judgment, of which the petition complains? If then, the powers of a court are thus vested in the general assembly, mere abstract considerations of policy, cannot be allowed, judicially, to obstruct or defeat their exercise. 2. And if the general assembly is a court, its jurisdiction is clearly of a common law description; in the nature of a writ of error, to revise and correct the decisions of inferior common law courts. 3. The act of Congress provides, that the removal of a cause from a State Court, in the specified cases, should only be "from a final judgment or decree in any suit, in the highest court of law or equity, of a state, in which a decision in the suit could be bad." Now, Olney might, by petition, have obtained from the general assembly, a construction on the act of Congress, which he pleaded in bar to the action brought against him. The name or title of the officer, who attests the process cannot be material; — whoever was the presiding magistrate, when the general assembly sat as a courtfn_, might authenticate the citation, or it might be granted by a Judge of the Supreme Court. Suppose, indeed, that the judgment were to be affirmed here, Olney might still petition the Legislature, and obtain a reversal and new trial; unless it can be maintained that the decision of this court will work a repeal of the law of Rhode Island.