ture, confirming the sale, was held not an encroachment upon the judicial power. The land, it was said, descended to the heirs subject to a lien for the payment of debts, and there is nothing in the nature of the act of authorizing a sale to satisfy the lien, which requires that it should be performed by a judicial tribunal, or that it should be performed by a delegate rather than by the legislature itself. It is remedial in its nature, to give effect to existing rights. The case showed the actual existence of debts, and indeed a judicial license for the sale of lands to satisfy them had been granted in New Hampshire before the sale was made. The decision was afterwards followed in a carefully considered case in the same court.2 In each of these cases it is assumed that the legislature does not by the special statute determine the existence or amount of the debts, and disputes concerning them would be determinable in the usual modes. Many other decisions have been made to the same effect.3

This species of legislation 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 effects injuriously the rights of no other.*

But a different case is presented when the legislature assumes to authorize a person who does not occupy a fiduciary relation to

1 Wilkinson v. Leland, 2 Pet. 660.

2

Watkins v. Holman's Lessee, 16 Pet. 25 - 60. See also Florentine v. Barton, 2 Wal. 210; Doe v. Douglass, 8 Blackf. 10.

3 Thurston v. Thurston, 6 R. I. 296; Williamson v. Williamson, 3 S. & M. 715 ; McComb v. Gilkey, 29 Miss. 146; Boon v. Bowers, 30 Miss. 246; Stewart v. Griffith, 33 Mo. 13; Estep v. Hutchman, 14 S. & R. 435; Snowhill v. Snowhill, 2 Green, Ch. 20; Dorsey v. Gilbert, 11 G. & J. 87; Norris v. Clymer, 2 Penn. St. 277; Coleman v. Carr, Walker, 258; Davison v. Johonnot, 7 Met. 388; Towle v. Forney, 14 N. Y. 423; Leggett v. Hunter, 19 N. Y. 445; Kibby v. Chetwood's Adm'rs, 4 T. B. Monr. 94; Shehan's Heirs v. Barnett's Heirs, 6 T. B. Monr. 594; Davis v. State Bank, 7 Ind. 316. In Moore v. Maxwell, 18 Ark. 469, a special statute authorizing the administrator of one who held the mere naked legal title to convey to the owner of the equitable title was held valid.

* It would be equally competent for the legislature to authorize a person under legal disability e. g. an infant to convey his estate, as to authorize it to be conveyed by guardian. McComb v. Gilkey, 29 Miss. 146.

the owner, to make sale of real estate, to satisfy demands which he asserts, but which are not judicially determined, or for any other purpose not connected with the convenience or necessity of the owner himself. An act of the legislature of Illinois undertook to empower a party who had applied for it to make sale of the lands pertaining to the estate of a deceased person, in order to raise a certain specified sum of money which the legislature assumed to be due to him and another person, for moneys by them advanced and liabilities incurred on behalf of the estate, and to apply the same to the extinguishment of their claims. Now it is evident that this act was in the nature of a judicial decree, passed on the application of parties adverse in interest to the estate, and in effect adjudging a certain amount to be due them, and ordering lands to be sold for its satisfaction. As was well said by the Supreme Court of Illinois, in adjudging the act void: "If this is not the exercise of a power of inquiry into, and a determination of facts, between debtor and creditor, and that, too, ex parte and summary in its character, we are at a loss to understand the meaning of terms; nay, that it is adjudging and directing the application of one person's property to another, on a claim of indebtedness, without notice to, or hearing of, the parties whose estate is divested by the act. That the exercise of such power is in its nature clearly judicial we think too apparent to need argument to illustrate its truth. It is so self-evident from the facts disclosed that it proves itself." 1

1 Lane v. Dorman, 3 Scam. 242. In Dubois v. McLean, 4 McLean, 486, Judge Pope assumes that the case of Lane v. Dorman decides a special act, authorizing an executor to sell lands of the testator to pay debts against his estate, would be unconstitutional. We do not so understand that decision. On the contrary, another case in the same volume, Edwards v. Pope, p. 465, fully sustains the cases before decided, distinguishing them from Lane v. Dorman. But that indeed is also done in the principal case, where the court, after referring to similar cases in Kentucky, say: "These cases are clearly distinguished from the case at bar. The acts were for the benefit of all the creditors of the estates, without distinction; and in one case, in addition, for the purpose of perfecting titles contracted to be made by the intestate. The claims of the creditors of the intestate were to be established by judicial or other satisfactory legal proceedings, and, in truth, in the case last cited, the commissioners were nothing more than special commissionThe legislative department, in passing these acts, investigated nothing, nor did an act which could be deemed a judicial inquiry. It neither examined proof, nor determined the nature or extent of claims; it merely authorized the application of the real estate to the payment of debts generally, discriminating in favor

ers.

A case in harmony with the one last referred to was decided by the Supreme Court of Michigan. Under the act of Congress "for the relief of citizens of towns upon the lands of the United States, under certain circumstances," approved May 23, 1844, and which provided that the trust under said act should be conducted under such rules and regulations as may be prescribed by the legislative authority of the State," &c., the legislature passed an act authorizing the trustee to give deeds to a person named therein, and those claiming under him; thus undertaking to dispose of the whole trust to the person thus named and his grantees, and authorizing no one else to be considered or to receive any relief. This was very plainly an attempted adjudication upon the rights of the parties concerned; it did not establish regulations for the administration of the trust, but it adjudged the trust property to certain claimants exclusively, in disregard of any rights which might exist in others; and it was therefore declared to be void. And it has also been held that, whether a of no one creditor, and giving no one a preference over another. Not so in the case before us; the amount is investigated and ascertained, and the sale is directed for the benefit of two persons exclusively. The proceeds are to be applied to the payment of such claims and none other, for liabilities said to be incurred but not liquidated or satisfied; and those, too, created after the death of the intestate." See also Mason v. Wait, 4 Scam. 127-134. The case of Estep v. Hutchman, 14 S. & R. 435, would seem to be more open to question on this point than any of the others before cited. It was the case of a special statute, authorizing the guardian of infant heirs to convey their lands in satisfaction of a contract made by their ancestor; and which was sustained. Compare this with Jones v. Perry, 10 Yerg. 59, where an act authorizing a guardian to sell lands to pay the ancestor's debts was held void.

1

1 Cash, Appellant, 6 Mich. 193. The case of Powers v. Bergen, 6 N. Y. 358, is perhaps to be referred to another principle than that of encroachment upon judicial authority. That was a case where the legislature, by special act, had undertaken to authorize the sale of property, not for the purpose of satisfying liens upon it, or of meeting or in any way providing for the necessities or wants of the owners, but solely, after paying expenses, for the investment of the proceeds. It appears from that case that the executors under the will of the former owner held the lands in trust for a daughter of the testator during her natural life, with a vested remainder in fee in her two children. The special act assumed to empower them to sell and convey the complete fee, and apply the proceeds, first, to the payment of their commissions, costs, and expenses; second, to the discharge of assessments, liens, charges, and encumbrances on the land, of which, however, none were shown to exist; and, third, to invest the proceeds and pay over the income, after deducting taxes and charges, to the daughter during her life, and after her decease to convey, assign, or pay over the same to the per

corporation has been guilty of abuse of authority under its charter, so as justly to subject it to forfeiture, and whether a widow is entitled to dower in a specified parcel of land,2 are judicial questions which cannot be decided by the legislature. In these cases there are necessarily adverse parties; the questions that would arise are essentially judicial, and over which the courts possess jurisdiction at the common law; and it is presumable that legislative acts of this character must have been adopted carelessly, and without a due consideration of the proper boundaries which mark the separation of legislative from judicial duties.3

sons who would be entitled under the will. The court regarded this as an unauthorized interference with private property upon no necessity, and altogether void, as depriving the owners of their property contrary to the "law of the land.” At the same time the authority of those cases, where it has been held that the legislature, acting as the guardian and protector of those who are disabled to act for themselves by reason of infancy, lunacy, or other like cause, may constitutionally pass either general or private laws, under which an effectual disposition of their property might be made, was not questioned. The court cite, with apparent approval, the cases, among others, of Rice v. Parkman, 16 Mass. 326; Cochran v. Van Surlay, 20 Wend. 365; and Wilkinson v. Leland, 2 Pet. 657. The case of Ervine's Appeal, 16 Penn. St. 256, was similar, in the principles involved, to Powers v. Bergen, and was decided in the same way. See also Kneass's Appeal, 31 Penn. St. 87, and compare with Kerr v. Kitchell, 17 Penn. St. 438, and Martin's Appeal, 23 Penn. St. 437.

1 State v. Noyes, 47 Me. 189; Campbell v. Union Bank, 6 How. (Miss.) 661; Canal Co. v. Railroad Co., 4 G. & J. 122; Regents of University v. Williams, 9 G. & J. 365. In Miner's Bank of Dubuque v. United States, 1 Morris, 482, a clause in a charter authorizing the legislature to repeal it for any abuse or misuser of corporate privileges was held to refer the question of abuse to the legislative judgment. The appointment of a receiver by the legislature for an insolvent bank was sustained in Carey v. Giles, 9 Geo. 253.

2 Edwards v. Pope, 3 Scam. 465.

The injustice and dangerous character of legislation of this description are well stated by the Supreme Court of Pennsylvania: “When, in the exercise of proper legislative powers, general laws are enacted which bear, or may bear, on the whole community, if they are unjust and against the spirit of the constitution, the whole community will be interested to procure their repeal by a voice potential. And that is the great security for just and fair 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, or 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, in the language of the Chief Justice in Greenough v. Greenough, in 11 Penn. St. 494, 'confesses itself too weak to stand against the antagonism of the legislature and the bar,' one

We have elsewhere referred to a number of cases where statutes have been held unobjectionable which validated legal proceedings, notwithstanding irregularities apparent in them.1 These statutes may as properly be made applicable to judicial as to ministerial proceedings; and although, when they refer to such proceedings, they may at first seem like an interference with judicial authority, yet if they are only in aid of judicial proceedings, and tend to their support by precluding parties from taking advantage of errors which do not affect their substantial rights, they cannot be obnoxious to the charge of usurping judicial power. The legislature does, or may, prescribe the rules under which the judicial power is exercised by the courts; and in doing so, it may dispense with any of those formalities which are not essential to the jurisdiction of the court; and whatever it may dispense with by statute anterior to the proceedings, we believe it may also dispense with by statute after the proceedings have been taken, if the court has failed to observe any of those formalities. But it would not be competent for the legislature to authorize a court to proceed and adjudicate upon the rights of parties, without giving them an opportunity to be heard before it; and, for the same reason, it would be incompetent for it, by retrospective legislation, to make valid proceedings which had been had in the courts, but which were void for want of jurisdiction over the parties. Such a legislative enactment would be doubly objectionable: first, as an exercise of judicial power, since, the proceedings in court being void, it would be the statute alone which would constitute an adjudication upon the rights of the parties; and, second, because, in all judicial proceedings, notice to parties and an opportunity to defend are essential, both of which they would be deprived of in such a case.2 And for like reasons a statute validating proindependent co-ordinate branch of the government will become the subservient handmaid of the other, and a quiet, insidious revolution will be effected in the administration of the government, whilst its form on paper remains the same." Ervine's Appeal, 16 Penn. St. 268.

1 See Chapter XI.

2 In McDaniel v. Correll, 19 Ill. 226, it appeared that a statute had been passed to make valid certain legal proceedings by which an alleged will was adjudged void, and which were had against non-resident defendants, over whom the courts had obtained no jurisdiction. The court say: "If it was competent for the legislature to make a void proceeding valid, then it has been done in this case. Upon this question we cannot for a moment doubt or hesitate. They can no more impart a binding efficacy to a void proceeding, than they can take one man's