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particular whistle. The question was referred to the law officers of the Crown, and, acting upon their advice, the board “refused the application, on the ground that it was impossible to discriminate between one noise and another, and that it was the aggregate rather than any particular part of the total sound which caused the annoyance.” It thus appears that the labors of the legislature have been crowned with this triumphant result, – the intervention of a government department may be obtained to stop a solitary whistle, but two or more whistles or trumpets may rend the air with impunity, so far as the Local Government Board are concerned. — The Solicitor's Journal.
THE PRINCE OF Wales. — As the expenditure of the present heir apparrent has been lately made a subject of extensive public comment, it is not indecorous to direct attention to the effective but perhaps not very well-known Act, 35 Geo. III. c. 135, entitled “ An Act for preventing the accumulation of debts by any future Heir Apparent of the Crown." By this statute, then, which applies to every heir apparent after 1795, within fourteen days after a separate establishment is made by Parliament for the heir apparent, a plan of this establishment and salaries is to be made out, and all payments on account of the establishment are to be entered in a book which the Commissioners of the Treasury are bound annually to inspect. An account is to be made out, and all creditors paid quarterly. Arrears, if any, are to be carried to the account of the next quarter,“ provided that no arrears of any sort shall, on any account or under any pretence, be carried on for more than two quarters of a year after the quarter when the same shall accrue due, and that if it shall happen that any arrears shall have been carried on for two quarters of a year, the same shall be discharged out of the sum due in the quarter to which such arrear shall be carried, in preference to all demands." Finally, all demands are to be delivered within ten days after the expiration of the quarter in which they accrued ; and if any creditor do not deliver a particular in writing of his debt within ten days after the expiration of the quarter in which it was incurred,“ every such debt shall be barred at law and in equity," and all “ securities for money given in consideration of any demand whereof the particulars in writing shall not be delivered,” according to the act, “ shall be void to all intents and purposes.” — The Law Times.
In the case of the Ohio Life and Trust Co. v. Debolt, the question arising as to what position the Supreme Court of the United States should take when called upon to decide a point of construction under a state constitution or law, the state decisions being conflicting, Chief Justice Taney said, among other things :
“That if a contract when made was valid by the laws of the state, as then expounded by all departments of its government and administered in its courts of justice, its validity and obligation cannot be impaired by any subsequent act of the legislature of the state, or decision of its courts altering the construction of the law.”
In Gelpcke v. The City of Dubuque,2 the facts being that the state decisions had held county bonds, issued in aid of railroads, to be valid under the state constitution, and that then the plaintiff acquired his rights, after which the state courts overruled their former decisions, the United States Supreme Court applied the rule laid down in Trust Co. v. Debolt, and allowed him to recover.
It is proposed first to give the history of this doctrine from the earliest cited to the last decided cases; and then, first,
1 16 How. 432.
2 1 Wall. 175.
to ascertain from these its scope, and, secondly, to inquire what place in the body of the law ought to be assigned to it by the jurist. Under the first head a full digest of the cases, as well the opinions of the judges as the actual points decided, will not give us more light than we need ; and here the reader's careful attention is asked, for a mastery of this adjudged law is an indispensable pre-requisite to the resolution of the two questions in hand. There is something which is not far from startling in the statement that, as regards a case not res judicata, rights can vest under a judicial decision, and that courts must hold a contract legal merely because such a one had been previously held to be so; that a species of estoppel can be thrown into the scales of justice; and that, instead of the one duty of declaring truth, judicial tribunals, apart from the maxim of stare decisis, are bound, like individuals, to hold in any degree to a step once taken, because of the rights of third parties affected thereby. To the attainment of juridical verity and logical consistency, we cannot be too careful in the scrutiny of a doctrine which contains such new and strange elements, and whose consequences may be of a character altogether revolutionary.
We shall begin with two or three Federal cases which are in point, and which seem not to have contemplated the course taken by the later authorities. These are Shelby v. Guy, United States v. Morrison,2 Green v. Neal, and Groves v. Slaughter.4 In Shelby v. Guy, Shelby pleaded the Statute of Limitations. Guy replied, • Beyond seas.” The contract was under the law of Tennessee. Shelby relied on a decision of that state contrary to a case decided in North Carolina previous to the Tennessee separation, and contrary to the law as generally understood in Tennessee, to the effect that “ beyond state” was not “beyond seas.” The Supreme Court of the United States thought that such decision was not enough, under the circumstances of that case, for them to rely on, but that, if it had been, they would have followed it, though this should have involved overruling their own previous decision. The opinion was by Mr. Justice Johnson.
The United States v. Morrison was as follows: By a state decision of 1799, it was ruled that by acting in a certain way the plaintiff in an execution would lose his lien. The United States,
such a plaintiff, having so acted, Morrison bought the property of the execution debtor. In 1830, several years after this transaction, the decision of 1799 was overruled. The principal case followed the later ruling, and held that Morrison's property was subject to the lien. Marshall, C. J., giving the opinion.
In Green v. Neal (Neal v. Green below), Green set up a statute of limitations of seven years. Under a state decision of 1805 this would have been no defence, but by a decision of 1828 such a title as Green's was held good. Neal must have taken prior to 1828, and relying, as we may believe, upon that decision, may have refrained from asserting his adverse claim. Yet in the principal case the Supreme Court followed the decision of 1828, and entered judgment accordingly. Judge Baldwin dissented. Judge McLean, who delivered the opinion of the court, says:1
“ The decision of this question [the local law] by the highest tribunal of a state should be considered final by this court, not because the state tribunal in such a case has any power to bind this court, but because, in the language of the court in the case of Shelby v. Guy,2 « a fixed and received construction by a state in its own courts makes a part of the statute law.' The same reason which influences the court to adopt the construction given to the local law in the first instance, is not less strong in favor of following it in the second, if the state tribunals should change the construction. A reference is here made, not to a single adjudication, but to a series of decisions which shall settle a rule.”
And the learned judge goes on in this strain for some length.
In Grove: v. Slaughter,3 Thompson, J., considered that there being so much difference of opinion in the state courts, the question was open to the United States Supreme Court. Prior to the acquisition of the party's rights there had been no state decision.
In Rowan v. Runnels 5 was sounded the first note of the new doctrine. That case was as follows: When the plaintiff acquired his rights, no state decision had been made. Then came a decision of the Supreme Court of the United States, laying down the doctrine contended for by the plaintiff. Afterwards there was
1 Citing, as authorities for following state decisions on questions of state law, McLean v. Delancy, 5 Cranch, 22; Bodley v. Taylor, Id. 221; Taylor v. Brown, Id. 255; Massie v. Watts, 6 Id. 165; 9 Cranch, 87; 5 Wheat. 279; 2 Id. 316; 6 Id. 119; Elmendorf v. Taylor, 10 Id. 152; 7 Id. 361; 12 Id. 153. · 2 11 Wheat. 361.
3 15 Pet. 499. 4 See Moore v. Clopton, 22 Ark. 125, 128.
5 5 How. 138.
a state decision the other way. The court, in the principal case, refused to depart from its former ruling, and follow the state decision, Taney, C. J., saying:
“ Acting under the opinion deliberately given by this court, we can hardly be required by any comity or respect for the state courts to surrender our judgment to decisions since made in the state, and declare contracts to be void which, upon full consideration, we have pronounced to be valid. Undoubtedly this court will always feel itself bound to respect the decision of the state courts, and from the time they are made will regard them as conclusive in all cases upon the construction of their own constitution and laws. But we ought not to give them a retroactive effect, and allow them to render invalid contracts entered into with citizens of other states, which, in the judgment of this court, were lawfully made. For, if such a rule were adopted, and the comity due to state decisions pushed to this extent, it is evident that the provision in the Constitution of the United States which secures to the citizens of another state the right to sue in the courts of the United States might become utterly useless and nugatory."
Judge Daniel dissented, saying, among other things :
“If these expositions (Mississippi decisions] establish the meaning of the Constitution of Mississippi, such meaning must have relation to the period of the consummation of that instrument, &c. The decision of the causes now before this court gives to the Constitution of Mississippi different meanings at different periods of its existence.”
In the Ohio Life and Trust Co. v. Debolt," says Taney, C. J.:
“When the constitution of a state for nearly half a century has received one uniform, &c., construction by all the departments of the government, legislative, executive, and judicial, I think it must be regarded as the true
It is true that this court always follows the decision of the state courts in the construction of their own constitution and laws. But where those decisions are in conflict, this court must determine between them. And certainly a construction acted on as undisputed for nearly fifty years, &c., ought to be regarded as sufficient, &c. Contracts with the state authorities were made under it. And upon a question as to the validity of such a contract, the court, upon the soundest principles of justice, is bound to adopt the construction it received from the state authorities at the time the contract was made."
Then, citing Rowan v. Runnels (vide Judge Miller's opinion in Gelpeke v. Dubuque), Taney, C. J., goes on to say:
1 16 How. 432.