Herbert v. Gray

Miller, J., delivered the following dissenting opinion, in which Stewart, J., concurred: This suit was brought on the 27th of April, 1872, by the appellants against the appellee and her husband on their joint and several promissory note for $383.61, dated the 28th of March, 1869, payable to the order of the plaintiffs, at ninety days from date, at the Bank of Commerce. The husband was returned non est, but the wife being summoned appeared and pleaded her coverture in bar of the action. Upon demurrer to this plea the Court below gave judgment in favor of the defendant, and from that judgment this appeal has been taken by the plaintiffs. The case has been argued by counsel for the appellants alone.

No argument has been made on the part of the appellee. It involves the very important question, whether the Act of 1872, ch. 270, which took effect on the 1st of April, 1872, the date of its passage, authorizes a suit at law against a husband and wife, upon their joint note executed before that Act was passed. In considering ⁵³⁶ this question, we must look first to the general purpose and intent of .the statute. It is an Act repealing the second section of the 45th Article of the Code of Public General Laws, entitled “Husband and Wife,” and enacting a substitute in lieu thereof.

By that section of the Code enacted in 1861, a very important change was made in the law of this Stale respecting the rights of married women over their property. It provides that all the property real and personal belonging to a married woman at the time of her marriage “she shall hold for her separate use with power of devising the same as fully as if she were a feme sole, or she may convey the same by a joint deed with her husband;” and then provides what interest he shall have in her property, if he survives her, and she dies intestate and leaving children or leaving none. This section is repealed by the Act of 1872, and a substitute enacted in lieu thereof. This substitute contains the whole of the original section with two most important additions.

In the first place it provides that “where the husband is a lunatic or insane, and has been so found upon inquisition, and said finding remains unreversed and in force, she may convey ” her property “ as fully as if she were a feme sole by her separate deed” whether, the conveyance “be'absolute or by way of mortgage.” To this extent at least, I think it quite clear the purpose of the Legislature was to take out of the Code the original section, and put the substitute bade in its place, to speak, take effect, and he operative with the other sections of the same Article as of the date of the Code itself. I cannot suppose that if a marriage has taken place since the Code and before the Act of 1872, and the husband becomes insane, the wife could not exercise the power of sale or mortgage of her property conferred by this substituted section, to support her lunatic husband if she chose so to do. The whole language of the statute clearly evidences this to be its purport and effect, and not to make a new ⁵³⁷ law or rule for marriages occurring after the passage of the Act. The second addition made by this substitute, and upon which the present question arises, is in these words: “ any married woman may be sued jointly with her husband in any of the Courts of this State, or before any justice of the peace, on any note, bill of exchange, single bill, bond, contract or agreement, which she may have executed jointly with her husband, and may employ counsel and defend such action or suit separately or jointly with her husband, and judgments recovered in such cases shall be liens on the property of defendants, and may be collected by execution or attachment in the same manner as if the defendants were not husband and wife ; provided, that in all cases where a married woman has made such contract or agreement as a feme sole under the seventh section of this Article, she may be proceeded against as therein provided.” It was decided by this Court at its last term, in the case of Hall and Hume vs. Heeleston and Wife, 37 Md., 510 , that one of the main purposes of the original section was to enable married women to maintain a separate credit independent of their husbands.

Having thus settled their property upon them for this purpose, the Legislature thought it right and just they should be responsible for their contracts of a certain description, like other persons, and be sued upon them in a Court of law, and their separate estates subjected to the payment of debts so contracted. That was the object the Legislature had in view .by the second addition to the original section made by the Act of 1872. There is nothing in it unwise, or harsh, or inequitable. It merely declares that married women shall not unite with their husbands and put their names and signatures to these contracts and thereby induce honest and bona fide creditors to part with their money, or merchandise, and then when pay-day comes, hold on to their ⁵³⁸ property, repudiate their honest obligations, and consummate cheats and frauds by pleas of coverture.

It applies to them in a limited manner and to a limited extent the same rule of common honesty and morality, by which widows, unmarried women, and other persons having property, are bound when they contract debts. It deprives-them of no honest defences, but on the contrary enables them to employ counsel and defend the suits separately from their husbands. Fraud, duress, coercion, are left them as defences at law, and Oourt-s of Equity are always open to hear their complaints. Such being the purpose of this provision, the question is, has it a retroactive operation ?

Does it apply to and affect contracts that antedate its passage? Of the power of the Legislature to make it retroactive, I entertain- no doubt. Have they so made it ? The rule is universal, that laws are to be so construed if possible, as to give them a prospective operation only.

But in whatever strong terms this rule may be stated, it has always in every well considered case, been qualified by the controlling and paramount principle, that if the language of a statute is too express and plain to be mistaken, and that language gives to it a retroactive operation, then the Courts cannot indulge in construction. It is in my judgment a principle too plain for controversy, that Courts have no power to make retrospective language prospective only by a mere arbitrary declaration that thus it shall be, for that would be judicial legislation and overturn the maxim estjudicis dicere non dare leges. The words of the law axe first to be looked to for the purpose of ascertaining the legislative intent in this as in all other cases. Thus in the case of Clark vs. The Mayor and City Council of Baltimore, 29 Md., 283 , where the rule of prospective construction is most strongly stated, this Court has said that laws must be construed according to the legislative intent, and “to ascertain this, we are first to ⁵³⁹ consider the words employed, and interpret them according to their plain, ordinary and natural import, having some regard to their order and grammatical arrangement.

If they are clear, precise and unambiguous, the Legislature must be understood to mean what it has plainly expressed.” Nor can the Courts look to consequences where the language of a statute is clear and explicit. These, if evil can only be avoided by a change of the law itself, to be effected by legislation and not by judicial action. Sedgwick on Statutory and Constitutional Law, 231. Least of all can they indulge in supposition as to what was the intention of the draftsman Of the Act, or of those who may have voted for it. 4 4 Courts must not even in order to give effect to what they may suppose to be the intention of the Legislature, put upon the provision of a statute a construction not supported by the words, even although the consequences should be to defeat the object of the Act.” Smith’s Commentaries on Statutory Construction, sec. 714.

A very strong case illustrating these doctrines was recently decided by the Supreme Court of Ohio, where the Court say they were satisfied, by considerations outside of the language, that the Legislature intended to enact something very different from what it did enact; but notwithstanding all this, they say ita lex seripta est; the language as it stands is clear, explicit and unequivocal ; it is our legitimate function to interpret legislation, hut not to supply its omissions. Woodberry & Co. vs. Berry, 18 Ohio State Rep. ,456, In this connection I cannot refrain from quoting the terse and 'vigorous language of the late Chief Justice Lb Grand, speaking for the Court, in the case of Alexander vs. Worthington, 5 Md., 485: 44 We are not at liberty to imagine an intent and bind the letter of the Act to that intent; much less can we indulge in the license of striking out and inserting, and remodeling with the view of making the letter express an intent which the statute in its native form does not evidence.” ⁵⁴⁰ I thus find that all the authorities raise a uniform protest against the power of Courts, so to deal with the language of a statute as to substitute the will of the judiciary for that of the Legislature, and declare that Judges-in expounding, as well as citizens who are to obey it, must read the law as it is written without any arbitrary subtraction from, or addition to its meaning. In this respect it makes no difference whether the purpose be to determine whether the words of the law make it retroactive, or to ascertain their meaning in any other respect. What then is the language of the law now to be dealt with?

It is plainly this: “any married woman may he sued at law with her husband, on any note, &c., which she may have executed jointly with him.” I cannot conceive how it is possible to raise an ambiguity, on these words, or to affirm they are wanting in clearness or precision. How can they be made to declare that married women may be sued only on such notes as they 'may execute after the law takes effect, except by a mere arbitrary declaration that they shall mean this an’d nothing more. Punctuation may be disregarded or so made to accommodate the sense, but I cannot, recognize the right of Judges so to deal with the grammar of a plain English sentence, as to change the past tenses of its verbs into future tenses. I have found no case in