1. In writs of error under the 25th section of the Judiciary Act
of 1789, which gives jurisdiction to this Court to review no error
but such as appears on the face of the record &c. -- where the
writ is to the Supreme Court of Louisiana, the code of which state
enacts that
"When the defendant alleges on his part new facts, these shall
be considered as denied by the plaintiff; therefore neither
replication nor rejoinder shall be allowed,"
a question was
held to appear sufficiently on the face
of the record when the petition for review in the supreme court of
the state set out that the question was raised in the court below
and decided against, and when the supreme court, on the question
being thus before it, decided the case in the same way.
2. The Act of June 11, 1864, "in relation to the limitation of
actions in certain cases," is not prospective alone in its
operation. Under it, the time which elapsed while a plaintiff could
not prosecute his suit by reason of the rebellion, whether before
or after the passage of the act, is to be deducted from the
operation of any state statute of limitations.
3. The act applies to cases in the courts of the states as well
as to those in the federal courts.
4. Thus construed, it is constitutional.
On the 10th August, 1860, Bloom, Kahn & Co., of which firm
one Levy was a member, all parties being resident traders in New
Orleans, gave their promissory note to A. T. Stewart & Co.,
resident traders of New York, payable March 13, 1861. Payment was
refused on demand at maturity. Very soon after this -- that is to
say, in April, 1861 -- the late rebellion broke out, and from the
15th of that month, when its existence was announced by
proclamation from President Lincoln, until sometime after, May 4,
1862, at which date the government troops took possession of New
Orleans, [
Footnote 1] the
ordinary course of judicial proceedings was so interrupted by
resistance to the laws of the United States that none of the
defendants could have been served with process if suit had been
brought on the note against them.
On the 11th of June, 1864, Congress passed this act,
entitled
Page 78 U. S. 494
"An act in relation to the limitation of actions in certain
cases:"
"That whenever, during the existence of the present rebellion,
any action, civil or criminal, shall accrue against any person who
by reason of resistance to the execution of the laws of the United
States, or the interruption of the ordinary course of judicial
proceedings, cannot be served with process for the commencement of
such action or arrest of such person:"
"Or whenever, after such action, civil or criminal, shall have
accrued, such person cannot by reason of such resistance of the
laws, or such interruption of judicial proceedings, be served with
process for the commencement of the action:"
"The time during which such person shall be beyond the reach of
judicial process shall not be deemed or taken as any part of the
time limited by law for the commencement of such action."
On the 16th April, 1866, the federal courts being now
reestablished in New Orleans, Stewart & Co. sued Bloom, Kahn
& Co. on the note. These set up what is called in Louisiana
"the prescription of five years," equivalent to that which is
elsewhere known as a statute of limitation, barring an action after
five years. No replication to this plea was put in. The Code of
Practice in Louisiana bars replications generally. This code enacts
that
"When the defendant in his answer alleges on his part new facts,
these shall be considered as denied by the plaintiff; therefore
neither replication nor rejoinder shall be admitted."
And by the settled practice of the state, what was embraced in
the defendants' answer was open to every "objection of law and fact
the same as if specially pleaded." The plaintiffs therefore were to
be considered as denying the validity of the state statute of
prescription which the defendants had set up in their plea and as
declaring that in virtue of the act of Congress above quoted, it
was suspended by the rebellion.
The court in which the suit was brought gave judgment
Page 78 U. S. 495
for the defendants. The plaintiffs then filed a petition in the
Supreme Court of Louisiana for a rehearing of the case, and, among
other things represented in the petition, that in the court
below
"They mainly relied upon the act of Congress entitled 'An act in
relation to the limitation of actions in certain cases,' approved
June 11, 1864, as a complete answer to the plea of prescription set
up by the defendants."
The petition for rehearing also declared that the plaintiffs had
filed a written brief in the said district court, which the rules
of that court required them to file, setting out the said act of
1864. This petition was inserted in the record.
The Supreme Court of Louisiana affirmed the judgment in the
court below, in these words:
"This is an action upon a promissory note. The defendants
pleaded the prescription of five years. The note fell due on the
13th of March, 1861, and the citations were served on the 18th day
of April, 1866. More than five years having elapsed after the
maturity of the note before the citations were served on the
defendants, the plea of prescription must be sustained. It is
therefore ordered, adjudged, and decreed, that the judgment of the
lower court be affirmed, and that the appellant pay the costs of
the appeal."
The plaintiffs now brought the case here.
Prior to the 5th of February, 1867, there was but one enactment
on the subject of bringing judgments from the supreme courts of
states to this Court, the well known 25th section of the Judiciary
Act of 1789. [
Footnote 2] On
the day first above mentioned, however, Congress passed another act
on the subject, [
Footnote 3]
following in most respects the language of the old act, though
changing it in some places and leaving out one whole clause in the
old act. The important parts of the two acts are here set lines,
words in the act of 1789 omitted in the act of 1867 being enclosed
in
Page 78 U. S. 496
brackets, and words variant in the two enactments being put in
italics:
"
Judiciary Act of 1789"
"SEC. 25.
And be it further enacted that 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 had
where is drawn in question the validity of a treaty or statute of
or an authority exercised under the United States and the decision
is against their validity, or where is drawn in question the
validity of a statute of, or an authority exercised under any
state, on the ground of their being repugnant to the Constitution,
treaties or laws of the United States and the decision is in favor
of such their validity,
or where is drawn in question the
construction of any clause of the Constitution, or of a treaty, or
statute of, or commission held under the United States and the
decision is against the title, right, privilege
or
exemption specially set up or claimed by either party, under
such [clause of the said] Constitution, treaty, statute, or
commission, may be reexamined and reversed, or affirmed in the
Supreme Court of the United States upon a writ of error, . . . in
the same manner and under the same regulations, and the writ shall
have the same effect as if the judgment or decree complained of had
been rendered or passed in a circuit court. [But no other error
shall be assigned or regarded as a ground of reversal in any such
case as aforesaid than such as appears on the face of the record
and immediately respects the beforementioned questions of validity
or construction of the said Constitution, treaties, statutes,
commissions, or authorities in dispute.]"
"
Judiciary Act of 1867"
"SEC. 2.
And be it further enacted that a final
judgment or decree in any suit in the highest court of a state in
which a decision in the suit could be had, where is drawn in
question the validity of a treaty or statute of, or an authority
exercised under the United States, and the decision is against
their validity, or where is drawn in question the validity of a
statute of or an authority exercised under any state on the ground
of their being repugnant to the Constitution, treaties, or laws of
the United States and the decision is in favor of such their
validity,
or where any title, right, privilege, or immunity is
claimed under the Constitution, or any treaty or statute of, or
commission held, or authority exercised under the United
States and the decision is against the title, right, privilege, or
immunity specially set up or claimed by either party under
such Constitution, treaty, statute, commission [or authority], may
be reexamined and reversed or affirmed in the Supreme Court of the
United States, upon a writ of error . . . in the same manner, and
under the same regulations, and the writ shall have the same effect
as if the judgment or decree complained of had been rendered or
passed in a
court of the United States."
The case being now in this Court, two questions were made:
1. Of jurisdiction in this Court.
2. Assuming jurisdiction to exist, the correctness of the
judgment below.
Page 78 U. S. 500
MR. JUSTICE SWAYNE delivered the opinion of the Court.
This is a writ of error to the Supreme Court of the state of
Louisiana. The record discloses the following case:
On the 16th of April, 1866, the plaintiffs in error, citizens
and residents of the State of New York, brought suit against the
defendants in error in the Fourth District Court of New Orleans
upon a promissory note made at New York on the 10th day of August,
1860, by the defendants, under their firm name of Bloom, Kahn &
Co., to the plaintiffs, by their firm name of A. T. Stewart &
Co., for the sum of $3,226.24, payable at the office of A. Levy
& Co., in the city of New Orleans, with the current rate of
exchange on New York,
Page 78 U. S. 501
seven months from date. The plaintiffs, by their petition,
claimed also to recover a few dollars for the balance of an
account. The note was duly protested at maturity for nonpayment. On
the 28th of the same month of April, the defendant Levy filed his
answer wherein he alleged that he knew nothing of the correctness
of the note or account and demanded full proof. He also pleaded the
statutory prescription of that state of five years as a bar to the
action. The other defendants, Bloom, Kahn & Adler, answered
subsequently. They denied all the allegations of the petition, and
also set up the defense of prescription.
A statute of the state provides that when "new facts" are
alleged in the answer, "neither replication nor rejoinder shall be
admitted." The facts are "considered as denied by the plaintiff."
[
Footnote 4]
Kahn was examined upon interrogatories, and answered that the
defendants' firm was constituted as alleged in the plaintiffs'
petition, and that their place of business at the date of the note
was Clinton, Louisiana. Another witness testified that he had known
the defendant Levy since the year 1854 or 1855; that Levy had
resided in New Orleans since that time, and was there during the
period of the rebellion. At the trial the plaintiffs submitted this
testimony, and the note and protest, to the court. It does not
appear that any evidence was offered touching the account. The
court gave judgment for the defendants. Upon what ground it was
given is not disclosed in the record.
The plaintiffs appealed to the supreme court of the state. In
that court, they insisted that the Act of Congress of June 11,
1864, entitled "An act in relation to the limitation of actions in
certain cases," interrupted the running of the prescription and
entitled them to recover. The Supreme Court affirmed the judgment
of the district court. The record shows they held that
"more than five years having elapsed after the maturity of the
note before the citations were served
Page 78 U. S. 502
on the defendants, the plea of prescription must be
sustained."
It is clear that the judgment was given solely upon this ground.
The case would have been more satisfactorily presented if a bill of
exceptions had been taken at the proper time, and the material
facts in that way placed upon the record. But enough is shown to
develop clearly the action of the supreme court of the state, and
the point we are called upon to review. There is no controversy as
to the facts. Under the circumstances, a refusal on our part to
exercise the jurisdiction invoked would involve a sacrifice of
substance to form and unwarrantably defeat the ends of justice.
Our attention has been called to the second section of the Act
of Congress of February 5, 1867, amending the Judiciary Act of
1789. [
Footnote 5] That section
is to a great extent a transcript of the 25th section of the prior
act. There are several alterations of phraseology which are not
material. A change of language in a revised statute will not change
the law from what it was before unless it be apparent that such was
the intention of the legislature. [
Footnote 6] But at the close of the second section there
is a substantial addition and omission. The addition in no wise
concerns this case, and need not be remarked upon. The omission is
of these words in the 25th section of the original act:
"But no other error shall be regarded as a ground of reversal in
any such case, as aforesaid, than such as appears on the face of
the record, and immediately respects the before-mentioned questions
of validity or construction of the said Constitution, treaties,
statutes, commissions, or authorities in dispute. [
Footnote 7]"
It is a rule of law that where a revising statute, or one
enacted for another, omits provisions contained in the original
act, the parts omitted cannot be kept in force by construction, but
are annulled. [
Footnote 8]
Page 78 U. S. 503
Whether the 25th section of the original act is superseded by
the second section of the amendatory act is a point not necessary
in this case to be determined, for, conceding the negative, the
question before us is within the omitted category, is presented by
the record, and is the only one we are called upon to consider. It
is alike within the section in question of the original and of the
amendatory act. In either view. there is no jurisdictional
difficulty.
In
Hanger v. Abbott, [
Footnote 9] this Court held that the time during which the
courts in the states lately in rebellion were closed to the
citizens of the loyal states is, in suits since brought, to be
deducted from the time prescribed by the statutes of limitations of
those states respectively, although the statutes themselves contain
no such exception, and this independently of the act of Congress of
1864. In the case of
The Protector, [
Footnote 10] the same rule was applied to the
acts of Congress of 1798 and 1803 fixing the time within which
appeals shall be taken from the inferior federal tribunals to this
Court. The case before us was decided prior to the decision of this
Court in
Hanger v. Abbott, with which is in direct
conflict. But apart from the act of 1864, it would present no
ground of federal jurisdiction.
Hanger v. Abbott came into
this Court under the 22d section of the Judiciary Act of 1789, or
if that section is superseded, under the second section of the
amendatory act of 1867. Its determination, therefore, depends
necessarily upon the construction and effect to be given to the act
of 1864.
The note upon which the suit is founded matured upon the 13th of
March, 1861. The prescription of five years expired on the 13th of
March, 1866. This action was commenced on the 16th of April, 1866,
one month and three days after the period of limitation had
elapsed.
The act of 1864 consists of a single section containing two
distinct clauses. The first relates to cases where the cause of
action accrued subsequent to the passage of the act. The second to
cases where the cause of action accrued before its
Page 78 U. S. 504
passage. The case before us belongs to the latter class. The
first clause of the statute may therefore be laid out of view. The
second enacts that
"Whenever, after such action -- civil or criminal -- such have
accrued, and such person cannot, by reason of such resistance of
the laws, or such interruption of judicial proceedings, be arrested
or served with process for the commencement of the action, the time
during which such person shall be beyond the reach of legal process
shall not be deemed or taken as any part of the time limited by law
for the commencement of such action."
A severe and literal construction of the language employed might
conduct us to the conclusion, as has been insisted in another case
before us, [
Footnote 11]
that this clause was intended to be made wholly prospective as to
the period to be deducted and that it has no application where the
action was barred at the time of its passage. Such, we are
satisfied, was not the intention of Congress. A case may be within
the meaning of a statute and not within its letter, and within its
letter and not within its meaning. The intention of the lawmaker
constitutes the law. [
Footnote
12] The statute is a remedial one, and should be construed
liberally to carry out the wise and salutary purposes of its
enactment. The construction contended for would deny all relief to
the inhabitants of the loyal states having causes of action against
parties in the rebel states if the prescription had matured when
the statute took effect, although the occlusion of the courts there
to such parties might have been complete from the beginning of the
war down to that time. The same remarks would apply to crimes of
every grade if the offenders were called to account under like
circumstances. It is not to be supposed that Congress intended such
results. There is no prohibition in the Constitution against
retrospective legislation of this character. We are of the opinion
that the meaning of the statute is that the time which elapsed
while the
Page 78 U. S. 505
plaintiff could not prosecute his suit, by reason of the
rebellion, whether before or after the passage of the act, is to be
deducted. Considering the evils which existed, the remedy
prescribed, the object to be accomplished, and the considerations
by which the lawmakers were governed -- lights which every court
must hold up for its guidance when seeking the meaning of a statute
which requires construction -- we cannot doubt the soundness of the
conclusion at which we have arrived.
On the 15th of April, 1861, President Lincoln issued his
proclamation announcing the existence of the rebellion and calling
for volunteers to the number of 75,000 to suppress it. On the 19th
of the same month, he issued a further proclamation announcing the
blockade of Louisiana and other states in rebellion. By a
proclamation of the 16th of August, 1861, he declared that the
states named in it, Louisiana being one of them, were in a state of
insurrection against the United States, and forbade all commercial
intercourse between them and the other states of the Union. This
proclamation was authorized by the 5th section of the Act of July
13, 1861. The authority of the United States was excluded from the
entire State of Louisiana from the date of the first proclamation
down to the month of May, 1862, when the City of New Orleans and a
small strip of adjacent territory lying along the Mississippi River
below that city was reclaimed from the dominion of the rebels by
the military forces of the United States. Even then, no court
there, state or federal, was open to the plaintiffs. Levy was
there, but the other defendants were elsewhere in the state whither
the arms of the United States had not penetrated. But without
pursuing the subject further, here was a period of more than a year
to be deducted, according to the act of Congress, from the time
necessary under the state law to create a bar, and this defeated
the prescription relied upon by the defendants.
But it has been insisted that the act of 1864 was intended to be
administered only in the federal courts, and that it
Page 78 U. S. 506
has no application to cases pending in the courts of the
states.
The language is general. There is nothing in it which requires
or will warrant so narrow a construction. It lays down a rule as to
the subject, and has no reference to the tribunals by which it is
to be applied. A different interpretation would defeat, to a large
extent, the object of its enactment. All those who could not sue in
the courts of the United States, including the loyal men who were
driven out by the insurrection and returned after it ceased, and
those of the same class who remained at home during the war, would
be deprived of its benefits. The judicial anomaly would be
presented of one rule of property in the federal courts and another
and a different one in the courts of the state, and debts could be
recovered in the former which would be barred in the latter. This
would be contrary to the uniform spirit of the national
jurisprudence from the adoption of the Judiciary Act of 1789 down
to the present time.
The act thus construed, it is argued, is unwarranted by the
Constitution of the United States, and therefore void.
The Constitution gives to Congress the power to declare war, to
grant letters of marque and reprisal, and to make rules concerning
captures on land and water; to raise and support armies, to provide
and maintain a navy, and to provide for calling forth the militia
to execute the laws of the Union, suppress insurrections, and repel
invasions.
The President is the commander-in-chief of the army and navy,
and of the militia of the several states when called into the
service of the United States, and it is made his duty to take care
that the laws are faithfully executed. Congress is authorized to
make all laws necessary and proper to carry into effect the granted
powers. The measures to be taken in carrying on war and to suppress
insurrection are not defined. The decision of all such questions
rests wholly in the discretion of those to whom the substantial
powers involved are confided by the Constitution.
Page 78 U. S. 507
In the latter case, the power is not limited to victories in the
field and the dispersion of the insurgent forces. It carries with
it inherently the power to guard against the immediate renewal of
the conflict and to remedy the evils which have arisen from its
rise and progress. This act falls within the latter category. The
power to pass it is necessarily implied from the powers to make war
and suppress insurrections. It is a beneficent exercise of this
authority. It only applies coercively the principle of law of
nations, which ought to work the same results in the courts of all
the rebellious states without the intervention of this enactment.
[
Footnote 13] It promotes
justice and honesty, and has nothing penal or in the nature of
confiscation in its character. It would be a strange result if
those in rebellion, by protracting the conflict, could thus rid
themselves of their debts, and Congress, which had the power to
wage war and suppress the insurrection, had no power to remedy such
an evil, which is one of its consequences. What is clearly implied
in a written instrument is as effectual as what is expressed.
[
Footnote 14] The war power
and the treatymaking power, each carries with it authority to
acquire territory. [
Footnote
15] Louisiana, Florida, and Alaska were acquired under the
latter, and California under both. The act is within the canons of
construction laid down by Chief Justice Marshall. [
Footnote 16]
This objection to the statute is untenable.
The judgment of the supreme court of the state is reversed.
The cause will be remanded to that court, with directions to
overrule the plea of prescription, and to proceed in the case in
conformity to law.
[
Footnote 1]
See The
Circassian, 2 Wall. 141.
[
Footnote 2]
1 Stat. at Large 85.
[
Footnote 3]
14
ib. 385.
[
Footnote 4]
Code, Art. 329.
[
Footnote 5]
14 Stat. at Large 385.
[
Footnote 6]
Theriat v. Hart, 2 Hill 381, note;
Douglass v.
Howland, 24 Wendell 47.
[
Footnote 7]
1 Stat. at Large 85.
[
Footnote 8]
Ellis v. Paige, 1 Pickering 43;
Nickols v.
Squire, 5
id. 168;
Bartlet v. King's
Executors, 12 Mass. 537.
[
Footnote 9]
73 U. S. 6 Wall.
532.
[
Footnote 10]
73 U. S. 6
Wall. 687.
[
Footnote 11]
See infra, 511 [argument of counsel -- omittede],
United States v. Wiley, the case immediately succeeding --
REP.
[
Footnote 12]
United States v.
Freeman, 3 How. 565;
Same v.
Babbit, 1 Black 61;
Slater v. Cave, 3 Ohio
St. 80.
[
Footnote 13]
Hanger v.
Abbott, 6 Wall. 532.
[
Footnote 14]
United States v.
Babbit, 1 Black 61.
[
Footnote 15]
American Insurance Company v.
Canter, 1 Pet. 511.
[
Footnote 16]
McCulloch v.
Maryland, 4 Wheat. 316.
