Leete v. State Bank of St. Louis , 115 Mo. 184 ( 1893 )

Sherwood, J.

The death of the testator Harrison, the father of plaintiff, occurring in 1870, her marriage with Leete in 1871 and the reception by the husband of certain sums of money from the executor of the will in 1876 and in 1877, with a portion of which money in the latter year he bought in his own name the stock in controversy, brings into prominence the act of March 25, 1875, p. 61, now section 3296, Revised Statutes, 1879, which is so far as necessary to quote- as follows': “Any personal property including rights in action belonging to any woman at her marriage or which may have come to her during coverture by gift, bequest or inheritance * * * shall * * * be and remain her separate property and under her sole control. * * * This act shall not effect the title of any husband to any personal property reduced to his possession with the express assent of his wife: Provided, that said personal property shall not be deemed to have been reduced to possession by the husband by his use, occupancy, care or protection thereof, but the same shall remain her separate property, unless by the terms of said assent in writing full authority shall have been given by the wife to the husband to sell, incumber or otherwise dispose of the same for his own use and benefit.”

I. This section is the pivotal point in this litigation, and upon its construction depends the conclusions which should be reached. In considering the section two questions become salient. Did the act quoted operate prospectively or retrospectively? If the latter did it violate section 28 of article 1 of the constitution of 1865, “That no ex post facto law, nor law impairing the obligation of contracts or retrospective in its operation can be passed?”

In construing statutes in regard to whether their action is to be prospective or retrospective, all the adjudicated cases and all the text-writers with unbroken uniformity unite in declaring “that they are to operate prospectively aind not otherwise unless the intent that they are to operate in such an unusual way, to-wit, retrospectively, is manifested on the face of the statute in a manner altogether free .from ambiguity.” State ex rel. v. Auditor, 41 Mo. 25; State ex rel. v. Ferguson, 62 Mo. 77; Thompson v. Smith, 8 Mo. 723; State ex rel. v. Hays, 52 Mo. 578. In the case last cited the rule is announced by Ewing, J. in words still more emphatic. He says: “Statutes are not to be construed as having a retrospective effect unless the intention of the legislature is clearly expressed that they shall so operate, and unless the language employed admits of no other construction.” The same rule is stated by Mr. Sedgwick: “Courts refuse to give statutes a retroactive construction unless the intention is so clear and positive as by no possibility to admit of any other . construction.” Construction of Statutory and Constitutional Law, 166, et seq., and cases cited.

Abundant authority elsewhere supports the position here taken. In Wisconsin when speaking of the intention of the legislature the supreme court of that state says: “There is language used in the law of 1865 which in its broad, general sense might perhaps be held to apply to tax deeds of municipal corporations previously executed. It declares that the ‘grantee named in any deed, made by ‘the treasurer of any incorporated city or village on the sale of lands for the nonpayment of taxes may at any time within three years after the date of such conveyance commence an action,’ etc. This language must however be construed as applying to deeds executed after the passage of the law. For the rule is well settled that statutes are not to be construed as having a retrospective effect unless the intention of the legislature is clearly expressed that they shall so operate. Seamans v. Carter, 15 Wis. 548. ‘That intention is not to be assumed from the mere fact that general language is used which might include past transactions as well as future. Statutes are frequently drawn in such a manner. Yet such general language is held to have been used in view of the established rule that statutes are construed as relating to future transactions and not to past.’ This is the language of Mr. Justice Paine in the above case; and there can be no doubt that it is fully in harmony with the authorities upon this subject.” Finney v. Ackerman, 21 Wis. 271, and cases cited; Ely v. Holton, 15 N. Y. 595, and cases cited.

In the cases just mentioned the principle under discussion was applied even in remedial statutes. Mr. Justice Cooley announces the same rule as applicable alike to constitutions and to statutes, saying: “It is ‘one of such obvious convenience and justice that it must always be adhered to in the construction of statutes unless in cases where there is something on the face of the enactment putting it beyond doubt that the legislature meant it to operate retrospectively.’ * * * Retrospective legislation is * * * commonly objectionable in principle and apt to result in injustice; and it is a sound rule of construction which refuses lightly to imply an intent to enact it.” Cooley on Constitutional Limitatations [6 Ed.] 77, 455. See, also, State v. Grant, 79 Mo. 113, where the foregoing authorities are collated and quoted with approval. Recurrence to such, familiar principles of construction is not altogether superfluous as will presently appear.

In the present instance not only is there nothing in the statute to show that it was intended to operate retrospectively, but on the contrary the section itself contains internal evidences that its prospective operation alone was contemplated, because the section says that: “This act shall not affect the title of any husband to any personal property reduced to his possession with the express assent of his wife.” That such language was not intended to apply to existing or past transactions is apparent from a moment’s consideration of that common law principle which enabled the husband without the assent, or even against the opposition of, his wife, to reduce any personal property or chose in action of hers into his own possession. Evidently, therefore, the act relates to the future.

In Hart v. Leete, 104 Mo. 315, in determining whether the act operated on existing marriages, it is said: “There is no exception made for cases where the marriage relation existed at the date of the act, and we have no power to malee one not made by the act itself.” But this statement, from considerations already presented, is incorrect. The rule is that the act is to operate prospectively only, and not otherwise, unless upon the face of the act itself the exceptions to the prospective rule do plainly and unmistakably appear. Nothing but the hand of the legislature can ingraft upon a statute the exception which arrests the operation of the familiar rule, and gives to the act a retrospective aspect. As the legislature has not grafted any such exception on the statute, the only thing left to do is to construe and apply the statute prospectively, and not to marriages then in existence, or to rights which had then accrued. This consideration alone is decisive of this case, and rules it against the plaintiffs.

II. But conceding for the nonce that the section quoted does in terms operate on existing marriage relations, and looking at the matter from a constitutional point of view, how stands plaintiff’s case! As will be remembered, the provision heretofore quoted contains these prohibitions: One forbidding the passage of an ex post facto law; one against the passage of ’ a law impairing the obligation of contracts, and one prohibiting the enactment of a law retrospective in its operation.

A retrospective law was long since defined by Mr. Justice Stoky when- construing a provision of the organic law of New Hampshire substantially like our own. He said: “Every statute which takes away or impairs vested rights acquired under existing laws or creates a. new obligation, imposes a new duty or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective.” Society v Wheeler, 2 Gall. 105. This definition has since been followed. Sedgwick on Construction of Constitutional & Statutory Law [2 Ed.] p. 160.

But few states have organic laws like our own on the point now being considered, and this will account for the most part for an apparent divergence of adjudication in regard to it. Touching this subject,» Judge Cooley observes: “And this brings us to a particular examination of a class of statutes which is constantly coming under the consideration of the courts, and which are known as retrospective laivs by reason of their reaching back to and giving to a previous transaction some different legal effect from that which it had under the law when it took place. There are numerous cases which hold that retrospective laws are not obnoxious to constitutional objection, while in others they have been held to be void. The different decisions have 'been based upon diversities in the facts which make different principles applicable. There is no doubt of the right of the legislature to pass statutes which reach back to and change or modify the effect of prior transactions, provided retrospective laws are not forbidden, eo nomine, by the state constitution, and provided further that no other objection exists to them than their retrospective character. Nevertheless, legislation of this character is exceedingly liable to abuse; and it is a sound rule of construction that a statute should have a prospective operation only, unless its terms show clearly a legislative intention that it should operate retrospectively. And some of the states have deemed it just and wise to forbid such laws altogether' by their constitutions.” Constitutional Limitations [6 Ed.] 454, 455.

Another author, treating the same topic, says: “The result of this branch of our inquiry is, then, that the legislature is competent to give a statute a retroactive or retrospective effect, unless first, the act violate the provision of the federal constitution in regard to ex post facto laws and the obligation of contracts; or second, unless it so interfere with vested rights of property as not to come within the proper limits of the law-making power; or third, unless it comes within the purview of some express prohibition contained in a state constitution.” Sedgwick on Construction of Constitutional & Statutory Law, 172, 173.

As shown by the authorities, there is a marked distinction between a law which impairs the obligation of contracts and one which is retrospective in its-operation. City to Use v. Clemens, 52 Mo. 133; Ex parte Bethurum, 66 Mo. 545; State ex rel. v. Railroad, 79 Mo. 420; DeCordova v. City, 4 Tex. 470; State ex rel. v. Greer, 78 Mo. 188; Ins. Co. v. Flynn, 38 Mo. 483. If the former class included the latter, then the addition of the latter to section 28 of article 1 of the constitution would have been a vain and meaningless addition.

Now, applying to the ease at bar the tests of a retrospective law, are they to be found in the operation of section 3296 ón the circumstances of this case? The day before that section went into operation, Leete, the husband, had the right to do these things:

First. He could have brought suit in his own name alone for any portion of the distributive share of his wife, coming to her after marriage (1 Chitty on Pleading [6 Am. Ed.] star p. 33); and if he had sued alone she would have had no interest in the amount recovered (1 Chitty on Pleading [16 Am. Ed.] 36.) and if he had died after recovering judgment in his own name, this would have cut off his wife’s right of survivorship. 2 Kent’s Commentaries [13 Ed.] 137. Second. He could have sold or assigned all of his wife’s choses in action and converted the money to his own use, or he could with the consent of the executor have changed the securities, or could have released the debts due his wife. 2 Kent, 135.

These were his rights at common law, resulting from his marriage, but, when he woke up on the morning the section mentioned went into operation, he found himself, if plaintiff’s position be correct, completely divested of his former vested rights, laboring under a “neto (Usability” as to the past transaction of his marriage, its incidents and consequences, to-wit: He could no longer sue for and recover his wife’s choses in action; reduce them into possession or sell, assign or release the same, etc.

If these are not the indubitable earmarks of a retrospective law, then it would be a futile undertaking to endeavor to find them. And rights of this nature are vested rights of action, are property, and as much protected by constitutional guarantees against arbitrary interferences as tangible property; and, whether they spring from contract or principles of the common law, it is not competent for the legislature to take them away. Cooley on Constitutional Limitations, 443, and cases cited.

The state of New York has no prohibition against retrospective laws, but nevertheless, in Westervelt v. Gregg, 12 N. Y. 202, the act of 1848 substantially identical with our own statute was passed upon, and it was there held that the act of 1848 .was unconstitutional because of violating that organic provision which declares that, “No person shall be deprived of life, liberty or property without due process of law.” This is a leading case, the ruling being unanimous, and made at a period when such jurists as Judge Denio adorned the bench, he delivering one of the opinions. The same ruling has been repeatedly made in that state (Norris v. Beyea, 13 N. Y. 273; Holmes v. Holmes, 4 Barb. 295; Ryder v. Hulse, 24 N. Y. 372), and the same view has been taken elsewhere. Sperry v. Haslam, 57 Ga. 412; Dunn v. Sargent, 101 Mass. 336; O’Connor v. Harris, 81 N C. 279; Kidd v. Montague, 19 Ala. 619; Sterns v. Weathers, 30 Ala. 712; Kirksey v. Friend, 48 Ala. 276; Jackson’s Adm’r v. Sublett, 10 B. Mon. 467; Gardner v. Hooper, 3 Gray, 398; Dash v. Van Kleek, 7 Johns. 477.

These rulings have received the approval of a text-writer of recognized merit who says: “The wife’s personal property already in possession or reduced to possession by the husband is his. And, to go still further, in her dioses in action, or unreduced personalty which he is already at liberty to reduce, there is a valuable existing interest capable of assignment and transfer, a vested right in the husband, which a subsequent statute or state constitutional provision cannot deprive Mm of, according to the better opinion.” Schouler on Husband & Wife, sec. 211.

Authorities are to be found opposing this view; among them: Clarke v. McCreary, 12 S. & M. 354; Goodyear v. Rumbaugh, 13 Pa. St. 480; Mellinger’s Adm’r v. Bausman’s Trustee, 45 Pa. St. 522; Keagy v. Trout, 7 S. E. Rep. (Va.) 329; Alexander v. Alexander, 7 S. E. Rep. (Va.) 335; Henry v. Dilley, 25 N. J. Law, 302. In none of the cases just cited, however, were there constitutional prohibitions as to retrospective laws, such as we have in this state. So that this consideration alone, for reasons already stated, should prevent our following those cases, even did we regard them otherwise sound as precedents.

Besides, this court on several occasions has ruled that section 1 of the act of March 5, 1849, for the benefit of married women did not apply to debts of husbands contracted before its passage. Cunningham v. Gray, 20 Mo. 170; Tally v. Thompson, 20 Mo. 277.

That act was as follows: “In addition to the property now exempt from levy and sale under execucution, by the tenth, eleventh and twelfth sections of the act of which this is amendatory, the property owned by a woman before her marriage, and that which she may acquire after her marriage, by descent, gift, grant, devise or otherwise, and the use and profits thereof, shall be exempt from all debts and liabilities of her husband, contracted or incurred'by Mm previous to their marriage, or previous to the time the wife came into the possession of such property.”

And these rulings were made on the basis that the act if otherwise construed, would be obnoxious to section 17, article 13, of the constitution of 1820, which forbade the passage of any “law impairing the obligation of contracts, or retrospective in-its operation.” In Hockaday v. Sallee, 26 Mo. 219, these rulings were followed and applied to a case where a debtor of the wife,, who became such before the passage of the act, was-successfully garnisheed as the debtor of the husband. These instances from our own reports serve to show the vested nature of the ¿ms mariti in question, and that it is incapable of retrospective abrogation.

The point in hand is put very aptly in Westervelt v. Gregg, supra, where Edwakds, J., said: “Aright to reduce a chose in action .to possession is one thing, and a right to the property which is the result of the process by which the chose in action has been reduced to-possession, is another and a different thing. But they are both equally vested rights. The one is a vested right to obtain the thing, with the certainty of obtaining it by resorting to the necessary proceedings, unless there be a legal defense, and the other is a vested right to the thing after it has been obtained.”

Now, if I have a right of action to recover a chose-in action or a piece of property, and the legislature should pass a law to take away my right of action, and thus leave me remediless, certainly no court would affirm the validity of such an act; but what difference-can there be in point of constitutional principle between an act of that sort and one which cuts off my right to sue for a chose in action or personal property and thus make the same my own? Can it be possible that in the former case I am deprived of a valuable and vested right and not in the other? It seems impossible to believe that such rights in either case can be made the sport of legislative experiment or caprice, and yet the organic law afford them, when invaded, no protection. On this ground also the law is with the defendant company.

III. On several occasions this court has ruled that a married woman is as to the property rights conferred upon her by section 3296 a feme sole and therefore able-to contract and be contracted with. Blair v. Railroad, 89 Mo. 383; Brown v. Bowen, 90 Mo. 184; Broughton v. Brand, 94 Mo. 169; Gilliland v. Gilliland, 96 Mo. 522. As to such property, therefore, she, possessing the jus disponendi, the chief attribute of ownership is sui jttris, and of consequence as much capable of being estopped as any other property owner so far as concerned the outside world. Henry v. Sneed, 99 Mo. loc cit. 425. As to her husband, of course, she could only be estopped by her instrument in writing; for so the statutes provide, but not so as to strangers.

In this case the evidence shows that plaintiff suffered her husband to deal with the property in question which he received in 1876 and 1877 as his own; he bought the stock in his own name; he kept it in his own name for some twelve years, thereby obtaining for him a fictitious credit. In such circumstances we hold she was estopped and postponed as to his creditors, as much so as if she had been a feme sole in fact as well as1 in law. In other words, we hold that the statute which she now invokes is to be used as a shield and not as a sword; and we make this ruling independently of whether that statute is to be regarded as retrospective in its operation or not. If prospective she has no -right of action, if validly retrospective then she is estopped.

IV. We hold also that the husband defendant was a competent witness — under the provisions of section 8922 — and that he was competent to prove his own agency. It is allowable as to any other witness to prove his own agency, and no reason is perceived why any different rule should prevail as to a witness merely because he occupies certain marital relations to one of the parties to the suit.

For this reason we disapprove of the rulings in Williams v. Williams, 67 Mo. 661 and Mfg. Co. v. Tinsley, 75 Mo. 458. And while on this head, it may be well to remark that the husband being a competent witness, full opportunity should have been given the defendant bank to examine him fully in regard to all matters to which his testimony was relevant.

The judgment should be reversed and the cause remanded.

All concur.