Heard v. Heard , 8 Ga. 380 ( 1850 )

By the Court.

Lumpkin, J.

delivering the opinion.

We shall consider only the first and third grounds taken ira the motion.

[1.] Has the Judge of the Superior Court the right to arrest or otherwise interfere with the bill of exceptions, after it has been signed and certified by him, and filed with the Clerk 1 We think not. His duty is then performed, and his control over the bill of exceptions at an end. Any other construction would involve the Clerk in inextricable difficulty ; for, should he fail or refuse to send up to this Court a complete transcript of the entire record, including a copy of the bill of exceptions, as required by law, he is liable to be attached and otherwise punished for his delinquency. The Legislature could not have intended to place this officer in a predicament, where he would be forced to decide, at his peril, between this conflict of jurisdictions, and, in any event, to be answerable to the one whose mandate he" disobeyed.

"We suppose, that when the presiding Judge has signed and certified the bill of exceptions, his power as well as duties in relation to the matter, are terminated ; and; consequently, he must see to it, that the bill of exceptions, when presented, is true and consistent with what has transpired in the case before him.

That groat injustice is sometimes done, both to the Court below and to the parties, by the bill of exceptions, we entertain no doubt; and the evil can only be obviated by the adoption of some practice by the Judges, to prevent surprise. Let it be required, for instance, that the exceptions be reduced to writing at the time they are taken,-or that notice be given to the opposite party to appear, at a time and place stated, before the Judge who tried the cause, to suggest any alterations to the case as made out, so that the bill of exceptions, as prepared, and the amendments, may be mutually agreed upon, or corrected and settled, as the Judge shall deem consistent with the truth. I trust I shall be pardoned for making this suggestion — originating, as it does, in no spirit of dictation, but in an extreme solicitude to protect the Circuit Bench, as well as the rights of suitors.

[2.] On the other ground, this writ of error must be dismissed, namely : because there is, neither in the transcript of the record, nor accompanying it," a copy of the bill of exceptions, as required by the Acts of the last Legislature. The Acts, (for there are two of them upon this subject,) in substance declare, that the Clerk of the Superior Court shall, in all cases, retain the original bill of exceptions in his office, and on or before the first day of the Court to which the writ of error is returnable, send up a copy thereof, as a part of the transcript of the record, or accompanying the same. Pamphlet Acts, pp. 68, 141.

Here, no copy of the bill of exceptions is embodied in the transcript, in accordance with the provisions of one of these Statutes, nor accompanies it, in the terms of the other. But a docúment, purporting to be the original bill of exceptions, and which no doubt is, has-been sent up, together with the other papers, though not certified, as required to be, previous to the passage of the late law.

[3.] I would remark, in passing, that one of these Statutes, by allowing till the first day of the term to which the writ of error is made returnable, for making out and sending up to this Court the copy of the bill of exceptions, with the transcript of the record, would seem virtually to have repealed the provision in the Act of 1845, requiring the Clerk to make out and send up the transcript, within ten days from the filing of the notice of the signing of the bill of exceptions. It was probably so intended.

It is a substantial right, which belongs to the defendant in error, to have the original bill of exceptions remain where he can have access to it, that ho may see what case has been made against him, and come to this Court prepared to meet it; and to deprive him of this privilege, by withdrawing the original papers from their proper depository, instead of transmitting a copy here, as required by the Acts, makes it obligatory upon the Court to strike this cause from the docket.

[4.] The party complains that he had no notice of these Statutes. They were approved by the Governor, on the 23d of February — published in the gazettes of the State, by authority, on the 19th of March — and the bill of exceptions was not signed until the 22d day of April — two months after the passage of the Acts, and more than one subsequent to their publication. But, were it otherwise — had these Acts been passed the day before the bill of exceptions was tendered, there is no dispensing power in the Court, to relieve the citizen from the consequences of his ignorance, however unavoidable on his part. 1 Gallison, 62. In this case, from the Circuit Court in Massachusetts, the brig Ann was libelled and condemned for sailing from Newburyport on the 12th of January, 1808, contrary to the Act of Congress of the 9th of January, 1808, though it was admitted that the Act was not known in Newburyport on the day the vessel sailed. The Court admitted that the objection to the forfeiture of the brig was founded on the principles of good sense and natural equity, and that unless such time be allowed as would enable the party, with reasonable diligence, to ascertain the existence of the law, an innocent man might be punished in his person and property, for an act which was innocent, for aught he knew, or could by possibility have known, when he did it; still it held, that the rule was fixed beyond the power of judicial control, and that no time was allowed for the publication of a law before it operates, when the Statute itself gives no time.

In the case before us, no time is fixed in the Act;, and the settled rule is, that it takes effect from its date. Matthews vs. Gane, 7 Wheaton, 104.

The English rule formerly was, that if no period was fixed by the Statute itself, it took effect from the first day of the session in which the Act was passed — a doctrine most absurd and flatly unjust. And yet this continued to be the law, until the 33 of Geo. Ill, which declared that Statutes are to have effect only from the time they received the royal assent. One of the elementary principles of municipal law is, that it be “ prescribed.” All laws should, therefore, be made to commence in futuro, and be notified to the community a sufficient length of time before they go into operation ; for, in this way alone can they properly be said to be prescribed. In New York, under their revised code, every law, unless a different time is specified, takes effect on the twentieth day after that of its final passage — in Massachusetts, on the thirtieth. But we doubt whether even this period is long enough for such a wide-spread territory as Georgia. By the law, as it now stands, that is, for the Statute to take effect, as most of our Acts do, from and immediately after their passage, a good deal of hardship and inconvenience has been experienced. By the Constitution of Mississippi, as declared in 1833, no Statute operates upon the persons or property of individuals, until sixty days after its enactment; and we would respectfully submit to our law-makers, whether it is reasonable or just that a shorter time be allowed in this State.