Other methods of taking the private property of persons without their consent, are the statutes authorizing the taking of the property of lunatics, idiots, and habitual drunkards, to be secured for their future support, or for the payment of their debts; also statutes authorizing the taking of the property of infants to provide the means of their nurture, education or support, and, for more profitable investment of the proceeds, and also, for the partition or sale of the estates of tenants in common, and for a distribution of such estates. All these matters are made subjects of judicial investigation, and courts are the most appropriate departments with which to entrust the administration of the power. In all such cases there will arise disputes of fact, and the judiciary are the most appropriate power to inquire and judge as to what is just and proper in the premises. In the cases of lunatics, idiots, and infants especially, the parties in interest are regarded in theory, as being incompetent to act in their own behalf, and courts are therefore the most competent and impartial forum and body to inquire into, and to guard these interests. As to the power of the legislature to grant it, and of the courts to exercise its administration, it has been adjudged by the court of dernier resort in this state. a "It is clearly (says Chancellor Walworth,) within the powers of the legislature, as the parens patria, to prescribe such rules and regulations as it may deem proper, for the superintendence, disposition and management of the property and effects of infants, lunatics, and other persons who are incapable of managing their own affairs.” But it has been held, that an act of the legislature entitled "An act for the better regulation and discipline of the New York State Inebriate Asylum" was void, which authorized a Judge of the Suɔreme Court, or county judge of the county in which an inebriate night reside, to commit such inebriate to said asylum upon the affidavits of two respectable practicing physicians, and two respectable citizens freeholders of such county, to the effect, that such inebriate is lost to self control; unable from such inebriation, to attend to business, or is thereby dangerous to remain at large; such commitment to be until the examination provided by law shall be had, in no case for a longer period than one year. This Oohan. Van Surlay, 20 Wend. 373. act authorized an ex parte proceeding, which deprived a man of his liberty; it might be for one year, without an opportunity of being heard in his defence; without his day in court. This was not regarded as due process of law, and was an act repugnant to the constitution of this state and of the United States. a While it seems to be generally conceded, that general statutes may be enacted to exercise these powers in all cases, it has been greatly controverted, whether the legislature may enact a special law that shall apply to control and direct in a single or individual case, on the ground, that such an act would be the exercise of a power, that in its nature partakes of the judicial, not legislative authority; or more properly, is a mingling of legislative and judicial power. A jealousy of the legislature, in the disposition to exercise of such a power, seems to have prevailed to such an extent in some of the states, as to have called for constitutional protection against it. In the states of Virginia, Maryland, Kentucky, Indiana, Michigan, New Jersey, Missouri, Oregon, and Nevada, are found provisions forbidding special laws, authorizing the sales of the estates of minors and other persons of legal disability. In the constitution of some of the other states, there is a prohibition against all special laws, where general laws can be made applicable. But in the state of Massachusetts, it has been held b by its courts, that notwithstanding there was a general statute on the subject by the legislature, the legislature could, by the use of a parental or tutorial power for purposes of kindness, without interfering with the rights of other persons, legislate to exercise this power by a special act. And to the same effect, has been the judicial view of the courts in the state of Ohio; c and such, was there said, to be the power of the English parliament; and it seems, that the rule in this state is, that while the legislature cannot generally, constitutionally enact a law which shall transfer an estate or the beneficial use of property of one person to another, there exists an exception in that class of cases, where the rights of third persons are not concerned, as in cases of infants, lunatics, and others, where it can be legally presumed, that the owner of the a Matter of Jones, 30 How. Pr. R. 446. b Rice v. Parkman, 16 Mass. 331. property himself, would have given his consent to the beneficial act, and so to use his property, if he had been in a situation to act for himself; and in cases where the act goes no further than to exercise that paternal or tutorial power over the persons and papers of infants and others, incompetent to act for themselves. This power existed at common law; it was the inherent right of the sovereign power; and it may be therefore exercised by general laws, or, under peculiar circumstances, by a special act of legislation.a In New Hampshire, a different interpretation has been had as to the effect of special legislation on such subjects, where general laws exist; and under the provisions of the constitution of that state.b This species of legislation, says Judge Cooley, in his work on constitutional limitations, c may perhaps be properly called prerogative remedial legislation. It hears and determines no rights; it deprives no one of his property; it simply authorizes one's real estate to be turned into personal, on the application of the person representing his interest, and under such circumstances, that the consent of the owner, if capable of giving it, would be presumed It is in the nature of the grant of a privilege to one person, which at the same time, affects the rights of no other person injuriously It was laid down as doctrine in the Supreme Court of this stat by Bronson J.,d (affirmed in the court of errors) as follows: "In consequence of the imperfection which pervades all things appertaining to man; cases will sometimes arise which have not been provided for by general laws, and which call for the exercise of a higher power than that possessed by courts of justice; and if individual interest can, under no possible circumstances, be changed or affected by private acts of the legislature, made without consent, it may happen, that an infant, with a large estate in expectancy, will be utterly destitute of the means of education and support. Although the legislature ought not to interfere upon light considerations, I cannot think that there is any constitutional impediment in the way of enacting private laws affecting individual a Cochran v. Van Surlay, 20 Wend. 380; Wilkinson v. Leland 2 Pet. 657 Ervine's Appeal, 16 Penn, St. R. 256. b Opinion of Judges, 4 N. H. 572. d Cochran v. Van Surlay, 15 Wend 441. • P. 10 3. interests, where proper care is taken to preserve the substantial rights of the parties." But the rule is clearly otherwise in cases where the legislature assumes to exercise the power of inquiry into facts, and to determine rights by legislation between parties adversely claiming interests, as between debtor and creditor, or as to claims to real estate, or to authorize a sale of real estate to satisfy demands in favor of a party that have not been judicially determined. This is clearly attempting to exercise judicial power, and is adjudging and directing the application of one person's property to another. It is so clearly the exercise of a power which has never been conferred upon the legislature, that their act in such or similar cases, would be void. a And so it was held in the Court of Appeals in this state, in a case where lands had been devised to trustees for the use of the testator's daughter for life, with remainders in fee to her issue living at the time of her decease, and for want of such issue, to all the grand-children of the testator then living. During the life of the daughter, (she having children living,) a statute was passed by the legislature, authorizing the trustees with the approbation of a Judge of the Supreme Court, to sell the lands, and out of the proceeds to pay their commissions, costs, and expenses, and all assessments and liens on the lands, and to invest the surplus in securities to be held in trust, the same as if the lands were held under the will. It was held by the court, that no necessity for the act of the legislature having appeared, either in the statute or aside from it, on account of the infancy or other incapacity of the persons living who had vested or contingent interests in the estate, that the act was not within the powers delegated to the legislature, and that the trustees could give no title to the lands sold in pursuance of it. b. It will doubtless often happen, in a government like our's, where the separate powers of the several departments are not expressly defined and marked out, that even the legislative department may pass acts of this character without that due consideration of the proper boundaries which marks the separation of legislative, from judicial functions. This is also the established rule in the state of Pennsylvania.c a Lane v. Dorman, 3 Scam., Ill., R. 242, 6 Mich. R. 193. b Powers v. Bergen, 6 N. Y. 358. c Ervine's Appeal, 16 Penn. St. B. 256. The courts of Pennsylvania have spoken in most emphatic terms against special acts of legislation that affect individual rights, a they say: "When in the exercise of proper legislative powers general laws are enacted which bear, or may bear, upon the whole community, if they are unjust, and against the spirit of the constitution, the whole community will be interested to procure their repeal, in a voice potential, and that is the great security against unjust and unfair legislation. But when individuals are selected from the mass, and laws are enacted affecting their property, without summons or notice at the instigation of an interested party; who is to stand up for them, thus isolated from the mass, in injury and injustice? Where are they to seek relief, from such acts of despotic power? They have no refuge but in the courts, the only secure place for determining conflicting rights by due course of law. But if the judiciary give way, and confesses itself too weak to stand against the antagonism of the legislature, and the bar; one independent, co-ordinate branch of the government, will become the subservient handmaid of another; and a quiet insidious revolution will be effected in the administration of the government, while its form on paper remains the same." Our constitutions were established for the protection of personal safety, and private property. They address themselves to the common sense of the people, and ought not to be filed away by legal subtleties. They have their foundations in natural justice; and, without their pervading efficacy, other rights would be useless. If the legislature possessed an irresponsible power over every man's private estate, whether acquired by will, by deed, or by inheritance, all inducement to acquisition, to industry and economy would be removed. The principal object of government is the administration of justice and the promotion of morals. But if property is subject to the caprice of an annual assemblage of legislators, acting tumultuously, and without rule or precedent; and without hearing the party, stability in property will cease, and justice be at an end. When the the constitution has interdicted the government from taking private property for public use without compensation, how can the legislature take it and dispose of it according to their will? a Id. 268. |