Ex parte Bibb , 44 Ala. 140 ( 1870 )

PETERS, J.

The facts upon which the determination of this case depends, are these :

On the 3d day of May, 1861, Howell Rose brought suit against J. F. Jackson, Thomas J. Judge, William O. Bibb, and Benajah S. Bibb, in a court styled in the record, the circuit court, in the county of Montgomery, in the State of Alabama. This suit purports to have been instituted for the recovery of twenty-five thousand dollars, due and owing on a bill of exchange, drawn by the above defendants and accepted by Thomas H. Watts and William H. Rives, and dated March 27th, 1860, and payable twenty months after date thereof to Howell Rose, the plaintiff. Protest and notice are waived on the face of the bill, and it was payable at the office of Benjamin Trimble, in Wetumpka, Alabama. Interest and damages are claimed in the complaint, and it is alleged that “ the same not being paid at maturity, was duly protested, of which said defendants had due notice.” This cause was tried before the Hon. Nat. Cook, judge presiding, on the 19th day of November, 1861, and “of the independence of the Confederate States the first year,” when the suit was discontinued as to Judge, who had not been served with process, and judgment was taken against the other defendants for the sum of $27,-609.65, the demand in the complaint mentioned, together with costs of suit.

Afterwards, on October 29th,.1868, the said Benajah S. Bibb and William C. Bibb moved in the circuit court of the county of Montgomery, in this State, in the office of which court the record of said judgment is found, for a new trial in said cause'; the said Jackson having died after the rendition of said judgment, and before the making of said motion. This motion was regularly continued in said court in which it was made until December 2d, 1868, when it was heard and refused. On the trial of this motion, a bill of exceptions was signed by the presiding judge, from which it appears that the applicants for new trial offered evidence tending to show that the bill of exchange, on which the original judgment was founded, was a transaction for the borrowing of money; that only the sum of $23,000 was paid for said bill of exchange; that said Benajah S. Bibb and William. C. Bibb were only accommodation drawers of the same. It also appeared that the judgment sought to be opened for new trial was one rendered in a court of the rebel government, set up in the State of Alabama after the 11th day of January, 1861; and that Benajah S. Bibb was a Union man, and resisted the insurrectionary movement for a separation of this’State from the Union up to the passage of the ordinance of secession, but after that he acquiesced in the action of the convention of the 7th of January, 1861, by which that ordinance was passed, and submitted to the rule of the insurrectionary government which that convention erected in this State, and aided in its support.

Upon this showing application is now made to this court for a rule nisi for mandamus to the circuit court, to compel that court to grant a new trial in said cause.

This application here renders it necessary to consider the effect of the ordinance No. 36 of the convention of the 5th of November, 1867, entitled “ An ordinance to declare void certain judgments, and to grant new trials in certain cases therein mentioned,” passed December 6th, 1867; and the act of the general assembly, entitled “ An act to extend the time in which to open judgments and grant new trials in certain cases,” approved October 10th, 1868.— Pamphlet Acts 1868, pp. 186, 259.

There can not, now, certainly be any doubts as to the power of the legislative department of the government to pass a law authorizing the opening of judgments and the grant of new trials. This has been an authority uniformly exercised by the government of the State from its commencement, and has never, so far as I know, been seriously, questioned. — Akin’s Dig. p. 283, § 135; Clay’s Dig. 340, § 150; Code, § 2407, 2408; Pamphlet Acts, 1857-1858, p. 39, No. 39; Revised Code, §§ 2813, 2814, 2825, 2827; Ex parte Norton & Shields, January term, 1870.

The convention of the 12th of September, 1865, seem to have entertained no scruples nor doubt on this right of the legislative branch of the government. This ordinance is almost in the very words of the ordinance No. 36 above referred to. — Revised Code, pp. 58, 59, No. 26, § 1. This power is one without any constitutional restriction. — Calder v. Bull, 3 Dall. 386; Crawford v. Br. Bank Ala., 7 How. 279.

A new trial is a part of the remedy, and it has existed from the earliest times, and over this branch of practice the legislature of the State, unless the State constitution limits its authority, has the amplest power. — 2 Bouvr. L. D., new trial, p. 210 ; 1 Sellor’s Pr. (1813) p. 463; Sturges v. Crowningshield, 4 Whea. 122, 200. The granting of a new trial does not impair the obligation of a contract on which the judgment may be founded; if it did, no new trial could ever be granted. But this is contradicted by the practice of the States, and sanctioned by the highest judicial tribunal of the nation. — Ball. & Susq. R. R. Co. v. Nesbit, 10 Howard, 395. The ordinance No. 30, above cited, which is affirmed and adopted by the act of the general assembly, also above cited, does not grant the new trial as was done in Calder v. Bull, supra; but it commands that it shall be done, if the application is made to the proper court in the manner and time directed in the act and ordinance. In the case at bar this has been done.

Controlled by the authority above referred to, I have no doubt of the constitutionality of the ordinance No. 36, and the act of the legislature confirming and adopting it. Both are wholly free from all constitutional objections, so far as the allowance of new trials is involved.

It remains, then, to inquire whether the facts submitted to the court below were sufficient to justify the opening of the judgment and the grant of a new trial.

In the- first place, the judgment is that of an illegal court. The clerk who issued the writ, the sheriff who served it, and the judge who gave the judgment, so far as this court can know, were all mere usurpers, who did not hold their offices by color of any rightful authority. The court was not that of a State of the Union, and the government of which it formed a part, was not that of a State of the Union. The judge who presided in it was not a judicial officer, recognized in this court, or by the rightful government. — Chisholm v. Coleman, January term, 1869. The government and the court in which this judgment is presumed to have been rendered was a foreign affair. — Scott v. Jones, 5 How. 343, 377. No such foreign court could be rightfully set up in this State. There was no law or treaty to authorize it. No citizen of this State was bound, inlaw, to answer to its summons or plead to its process. For the reasons above shown, it was wholly destitute of any authority as a legal court.— Glass v. Schooner Betsey, 3 Dall. 6; 10 Bac. Abr. p. 374, verb void; 3 Blackstone’s Com. 24, 25. The whole proceeding was utterly void, as though it had never taken place, unless validity is given to it as a decree of a court of a government illegally and unconstitutionally erected in a State of the'Union. To give legality without legislative assistance to such a tribunal, is to give legality to the insurrection itself — to give legality to treason against the government of the United States. Shortridge & Co. v. Macon, Pasch. Annotated Constitution, p. 212. To recognize the sentence of this court as legal is to recognize the court as legal, and the government of which the court formed a part as legal; for they all cling together as a whole. But this can not be. The entire current of decisions from Scott v. Jones to Texas v. White, denounce such a government as utterly void in all its departments, without legislative affirmance and ratification.— Texas v. White, 7 Wall, 700; Luther v. Borden, 7 How. 1; Scott v. Jones, 5 How. 343; Glass v. The Betsey, 3 Dall. 5; Shortridge & Co. v. Macon, Paschall’s Ann. Const., p. 212.

And the congress of the United States, and the chief of the highest executive department of the nation, have done the same.- — -Acts of Congress, Stat. March 2, 1868, Pamph. Acts, pp. 90, 260; Stats, at Large,’ p. 14, ch. 30; President Johnson’s proclamation,. 1865. Those emphatic declarations of the illegality of the rebel government, erected in this State during the late insurrection against the government of the United .States, have -never been taken back or modified, either by the Federal or the rightful State government ; and this court, and all the courts of the nation, are bound to be governed by them. They are the only law upon the subject known to this court and must govern here, unless their validity is disputed. The attempt to in-' corporate and' engraft into our law the European system of defacto governments, and the consequences which flow from them, has been wisely and emphatically repudiated, by the venerable head of this tribunal in his very learned and unanswerable opinion, delivered at the first session of this court, under its present organization, in the case of Chisholm v. Coleman, in which, as I think, that doctrine was properly denied acceptance here, and repelled as inapplicable to our system of governments, and to the peace of the country. It is the offspring of insurrection, and calculated to encourage them. There can be no doubt about the power of the legislative departments of the government of the Union, and the rightful and legal government of the States, to validity by law of their own enactment, whatever it may be wise and proper to make good after the suppression of a rebellion against the sovereignty in the States, or within the territories of the Union, The law-making power is wisely lodged with them alone. And it is by the laws of their enactment that the land must be governed. Laws can neither be enacted nor imported by the courts, however strong their suppositions cf their necessity may proclaim their want., I therefore think that to enable any government, erected in a State of this Union, to enact valid law's, or its courts to render valid judgments, it must be a legal State government, and must be acknowledged by the congress of the United States as such; otherwise, all its acts, and the acts of all its courts are utterly void, and they can only become valid by the affirmance and ratification of the rightful legal government in its restoration to power, or by the rightful government of the nation, as the question may be one of domestic or national import. In this State necessity may be pleaded to excuse an individual act, otherwise unlawful, but it can not be pleaded to validity a law or a judgment of an incompetent authority.

That which is illegal remains illegal until the law removes its illegality, and laws can only be passed by the agency which is clothed by the fundamental law of the State, or of the Union, with that great right. This is a principle which forms the very basis of all our State governments. And as a great jurist and statesman has said, upon another occasion, “ doubtless the continuance of regulated liberty depends on maintaining this principle.” — (Daniel Webster.)

To depart from this is to turn over to the courts a portion of the legislative power of this State — the power to say what laws and what judicial acts of an illegal government shall have effect, and what shall not have effect. Such power the courts are expressly forbidden to exercise. Con. Ala. art. 3, §§ 1, 2 ; art. 6 ; art. 5.

This judgment, then, was coram nonjudice, and does not bind the defendants, even as the judgment of a foreign, court, because it was not a court of a government acknowledged by the rightful political authority.

Another question occurs in connection with this case. It is this — has this judgment been made good, ratified or affirmed, in any manner by the rightful authority of the State, or of the general government ? I think it has not. All the departments of the government are mere agencies. Cooley, 87, et seq,, and notes. They are depositories of special and separate powers of administration, and the one can not perform the agency entrusted to another.— Waymay v. Southard, 10 Whea. 46.

And as it is with other agencies, what one agency is forbidden to do in the first instance, it can not ratify, if done in the name of another, by an illegal authority, or rather, by another agency wholly void. The legislative agency can not make a judgment good which has been rendered by a void and illegal court, unless it could have conferred authority upon such void court to have given the judgment in the first instance. But this the legislative authority has no power to do. This was a judgment by a circuit court. The legislature has no power to make circuit courts, nor to give the judgment of a circuit court. Then such a ratification would be void for whnt of authority to make it. Cooley on Const. Limit, p. 108, and notes; Denncy v. Mattoon, 3 Allen, 361; Story’s Agency, §§ 240, 241, and notes. Here the judge was an intruder.' His right of jurisdiction was founded on no legal authority whatever, and the judgment falls for want of legal authority in the court. This the legislature can not supply. Debile fundamentum fallit opus. — Broom’s Max., p. 80, marg. In this case the legislature has done all it can do. It accepts the proceedings in the rebel courts as a basis for an application for a new trial.

The ordinance No. 26, of the convention which assembled at the capítol in the city of Montgomery, in this State, on the 12th day of September, 1865, not being in conformity with the principles of this opinion, is, as a legislative act, illegal and void, so far as this case is concerned; and the decision in Randolph v. Baldwin, which is founded upon it, is overruled. — Revised Code, p. 58; Randolph v. Baldwin, 41 Ala. 305.

It is contended that the judgment in this case is founded on a contract for the loan of money. If this be admitted, then that contract was usurious. The sum of $23,000 was received* in the bill of exchange, and $2,000 were to be paid for the use of it for one year. This was above the rate fixed by law. Under such a state of facts, the judgment should have been only for the sum loaned, and without costs. — Bevised Code, §§ 1831, 2781. Yet the recovery was for $27,609.65 and all costs. This was $4,609.65, and all the costs, too large. Under this hypothesis a new trial should have been granted.

Besides, the complaint alleges that the bill of exchange was “ duly protested, of which the defendants had due notice.” This is not surplusage and should have been proved, or the complaint amended to suit the true state of the facts. But at the date the bill matured it is more than probable that there were no legal officers of the rightful government of Alabama in power in this State, and it would not have-been permitted to the defendant, Benajah S. Bibb, who was a Union man, to have alleged or contested this question in the so-called court in which this judgment purports to have been rendered, without peril to his life or liberty. — Hon. C. C. Sheats’ case. It is, therefore, almost certain that he could not have made the same defenses in that court that he could have made in the courts of the rightful government. This is an additional reason, not without much force, for the grant of a new trial in the court below.

I therefore think, for all'the above reasons, and under the facts of this case, that a rule nisi in conformity with the prayers of the applicant’s petition, ought to be granted.

The grounds relied upon in this suit should justify the allowance of an application for a new trial upon very slight showing.

This is an application for mandamus, and it invokes the exercise of the original and plenary powers of this court. They are derived from the second section of the 6th article of the constitution of the State, which is in these words :

“ Sec. 2. Except in cases otherwise directed in the constitution, the supreme court shall have appellate jurisdiction only, which shall be co-extensive with the State, under such restrictions and regulations not repugnant to this constitution, as may from time to time be prescribed by law; Provided, that said court shall have power to issue writs of injunction, mandamus, habeas corpus, quo ivarranto, and such other remedial and original writs as may be necessary to give it a general superintendence and control of inferior jurisdictions.” — Con., art. VI, § 2.

Erom this it will be seen that it is only the appellate jurisdiction of this court that is subject to legislative control; but the power to grant the several writs above mentioned, and to superintend and control inferior jurrisdictions, is inherent in the court by constitutional grant with which the legislative department has no authority to interfere. Then, in the exercise of these powers, the practice of the court becomes the law of the court. These powers rest upon the same basis that the separate and original powers of any other department do, upon a grant by the people— the sovereigns — to the court, by constitutional provision. Under these powers, in the performance of the duties arising out of them, the court proceeds according to its own discretion. But this discretion is not to be a reckless and unreasonable discretion, but such as shall lead most certainly to the accomplishment of the highest justice, and the enforcement of the laws.

Under this construction of the powers of the court, thus derived, in the progress of this cause at the bar, an order has been granted in favor of the applicant, Benajah S. Bibb, to suspend the sale of his lands levied on under a writ issued on the judgment sought to be opened in this cause in the court below, in which the application was made. Under this order a writ was issued from this court, directed to the sheriff of the county who had possession of said writ of fieri facias for execution, to suspend a sale under said writ upon the conditions and for the length of time directed in said order.

This proceeding was necessary in order to afford this court proper time to look into a case of so much novelty and difficulty as this, and to secure the rights of the parties interested from further complication in a matter of so much uncertainty; and to give to the action of this court its proper effect in this case.

In such a matter there can be no reasonable doubt of the power of the court to control the action of the circuit court and all its officers, as an inferior jurisdiction, according to its discretion, and to construct its writs to suit the exigencies of the case before it, under the authority of the section of the article of the constitution above quoted, without legislative aid or interference.

Let.the rule nisi be granted.