Trustees Internal Improvement Fund, Appellant, vs. William Bailey, Appellee, 10 Fla. 238

FORWARD, J., delivered the opinion of the Court. .

The Court having at this term decided that the Chief Justice and Associate Justice Walker were qualified in law to hear and determine this motion, or any of the questions arising in said cause, the said motion was argued, and, the Court having considered the same, deliver the following opinion : The history of the action of this Court in said causéis stated in the decision of the Court on the question of the disqualification of said Judges, aiid the question now presented is, whether the Court will docket said cause and grant-the rehearing asked in said petition ?

In the argument, it is ■^contended on the part of William Bailey, the appellee, that the act of the Legislature which directs the Attorney Gen-oral to file an application before the Supreme Court for a rehearing in this cáse is a legislative interference with the Judicial Department of the State, or in violation of the 2d

article of the Constitution, which declares “ the powers of the government of the State of Florida shall be divided into three distinct departments, and each of them confided to a separate body of magistracy, to wit: Those which are legislative to aone, those which are executive to another, and those which are judicial to another. “No person, or .collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances expressly provided in this Constitution; ” and that, as a consequence of the exercise of said power, the said statute, by directing the Attorney General as aforesaid, seeks to take aw.ay the vested rights of the said William Bailey by providing for the revision of a judgment of this Court in his favor, and in this way impairs the obligation of the contract. .

In support of the application, it is contended that said provision, requiring the Attorney General to make the same, is not the exercise of any power prohibited by the Constitution, nor the seeking to divest any of the vested right's of said. William Bailey, and cites the following eases as sustaining the legislative provision, to wit: Baltimore and Susquehanna Railroad Co. vs. Nesbet et al., 10 Howard U. S. Reports, page 395; Calder and wife, vs. Bull and wife, 3 Dallas, 386; Sattarlee vs. Mathewson, 2 Peters, 381; Wilkinson vs. Leland, 2 Peters, 627; Same vs. same, 10 Peters, 295 ; Lessee of Livingston vs.

Moore and others, 7 Peters, 469; Watson and others vs. Mercer, 8 Peters, 88. The application to this Court for rehearing is not made, by either of the parties to this suit. On the contrary, the At* torney General expressly informs the Court, that he makes the application, “ not as the Attorney of the appellants, but solely in obedience to the said act of the General Assembly Herein it is an anomaly and unlike' any cases presented, and without parallel in all the'adjudicated cases, in this particular, which we'-have been able to find.

For all the Court knows the parties to the suit are satisfied with the -decision of the Court. No complaint is heard from them, or either of them. No application is made by either of the parties; the presumption is that they are content, and the question in the abovg' ease, so far as the parties'thereto are concerned, are settled. But the Legislature, it seems, were .not satisfied. They seem to have arrived at the conclusion that the questions j therein were not settled.

In order that they may be settled to the satisfaction of the' General Assembly, they employ new counsel, by directing the law officer of the State to in terpose by application for a rehearing, or by bill or .otherwise, and to do this;befox-e a competent tribunal. It will bo noticed the Legislature have not granted the rehearing, ox-directed the Court to grant it, xxor does it confine the Attox-xxey General to axx application for a rehearing ; but it is left to that'officer-, in exercise of his owix judgment, to proceed, either by bill, applicatioxx for rehearing, or otherwise, as he may deem best.

Had the act of the Legislature directed a rehearing, the hearing of the case would necessarily carry with it the right to set aside the judgment of the Court, and would be unquestionably an exercise of judicial powei\ It is argued, however, by the Solicitor for appellee that the directing of'the Attorney General to take steps in the suit which had been decided, and virtually making, a new party thereto, was the exercise of a power properly belonging to the judicial department, although it does not dictate what __the Court shall do or grant the rehearing, In a case where “ the exercise of power by the Legislature properly belonging to the judicial department is clear and manifest, there is no doubt it would be incumbent upon this Court to declare it a violation of the Constitution. j The Legislature, under this provision of the Constitution, may pass

an act which is ministerial and simply remedial of an existing right, which may not amount to-the exercise of judicial power, whiel/wasthe act of the Legislature in Pennsylvania in the case of Lessee of Livingston vs. Moore and pothers. It is a great blessing to ns as a people that we have a written Constitution, in which the powers of-the Government are divided and a prohibition is put upon the exercise or usurpation of any of the powers properly belonging to either of the other.

The framers of the Constitution of Florida, doubtless, had in mind the omnipotent power often exercised by the British Parliament, the exercise of judicial power by the Legislature in those States where there are no written Constitutions restraining them, when they wisely prohibited the exercise of such powers in our State. ■ That Convention was composed of men of the best legal minds in the country — men ■ of experience and skilled in the law — who had witnessed the breaking down by unrestrained legislation all the security of property derived from contract, the divesting of vested rights by doing away the force of the law as decided, thé overturning of solemn decisions of the Courts of the last resort, by,- under the pretence of acts, enacting for one or the other party litigants such provisions as would dictate to the judiciary their decision, and leaving everything which should be expounded by the judiciary to the variable and ever-changing mind of the popular branch of the Government.

To prohibit the exercise of such power in this State, they provided that the judiciary department shall not exercise any power properly belonging to the legislative department, nor the Legislature any power properly belong to the judicial department. tff Under such provisions, the rights of property are not solely dependant on the will of the legislative body, without an; restraints. Their province is to set the machinery of the rights’ of property in motion, but they have ■ not the power of determining those rights. The latter is left to the judiciary, who are independent of the other branches of the government.

No Court of justice in this State would be justified in as(suming that the power to violate or disregard the sacredness of private rights or private property- — a power so repugnant to the common principles of justice — -could be derived under any grant of legislative authority. The Legislature assume, in said 8th

section of said act, that the questions in the case of the Trustees of the Internal Improvement Fund, vs. William Bailey were not “settled" Flow or by what means they arrived at that conclusion, this Court does not know, nor has it any right to know,- but we feel bound, in justice to the Court, to say, that each and every of the questions presented by counsel were carefully, attentively and thoroughly considered, discussed and decided, as far as they could be between the parties to that suit, which fact will appear to any one who will take the pains to read the opinion of the Court.

This brings us to consider whether, the granting by tbe Legislature of a rehearing in a case decided by an appellate Court is tlie exercise of a power properly belonging to tbe judiciary ? ** In the first place, let us see where the right of a rehearing of a cause in this Court is derived. Is it from any act regulating judicial proceedings, or is it derived from the exclusive favor of the Court. ' In the practice of Courts of Equity in England and. in America, a distinction exists as to the allowance of a rehearing between tbe Courts of original jurisdiction and those fcery, a rehearing is altogether unknown.

In the Court of Equity in Florida, which is a Court of original jurisdiction, it is provided by statute and by tlie rules of equity in tlie Circuit Courts of tbe United States, which we bave adopted, that rehearings shall be granted. It is in those Courts a matter of right resting in the discretion of the Court, subject to ajipeal, and thus they are almost’ uniformly allowed. But in the Supreme Court, which is a Court of appellate jurisdiction only, the Court cannot be compelled to rebear — tbe rehearing is only authorized by rule oí Court, and seldom allowed.

Such is the rule adopted by the Supreme Court of the United States. In the cáse of Brown vs.

Aspden, 14 Howard, 25, it was held that the rules of the English Court of Chancery, in respect to rehearings, had not been adopted by that Court; that tliey were applicable to a Court of original jurisdiction, and. were not appropriate to an appellate Court. ' Chief Justice Taney, in delivering tlie opinion, after alluding in forcible terms to the natural result of this practice iu that Court, of producing enormous expenses and delays, oftentimes ruinous to suitors, proceeds to say: “If this Court should adopt a practice analogous to that of the English Chancery, we should soon find ourselves in the same predicament; and we should be hearing over again, at a second term, almost all the cases which we- had heard and adjudged at a former one, and upon which our own opinions would have been definitely made up upon the first argument.

We deem it safer to adhere to the rule we have heretofore acted on; and.no reargument will be granted in any case,- unless a member of the Court, who concurred in the judgment, desires it; and, when that is the case, it will be ordered without the application of.counsel.” In this State, as we have already stated, it is by a rule the Supreme Court a rehearing or .application for rehearing is allowed. This rule provides that “Rehearings must applied for by petition in writing within fifteen days after the judgment or decree, setting forth the cause or causes for which judgment or decree is supposed to be erroneous.

The Court will consider the petition without argument, and, if rehearing is granted, direct it as to one or more points, as the ease may require.” \Rehearings, therefore, in this Court, are not authorized by statute, nor are they .a matter of right^ but rest in the sound discretion of -the Court, and on such points as may be directed by them — -therefore a power properly belonging to this branch of the Judicial Department.^- The right of rehearing being derived from a rule of this Court, which is an appellate Court only, it follows that

an act of the Legislature, directing a rehearing, is the exercise of a power properly belonging to .the Judicial Department. It is contended, however, that the ease of the Baltimore and Susquehanna Railroad Co. vs. Nesbit et al., 10 Howard, is one directly in point and holds the act valid. It is true the syllabus or head note of that case does hold out the Comt as having decided in general terms, “ The States have a/ to direct a rehearing of eases decided in their own right Courts.” But, after careful examination of that case, we cannot think they^ intended laying down tile rule 'of law in sutíh broad terms.

In that Court, the syllabus is made by the reporter and not by tine Court, as in this State. As a precedent of

an act of the State Legislature in awarding a neW trial, where, the retrospective law was not considered such as is technically éx post facto, or such as impair the obligation of contracts, they rely on the case of Calder and wife vs. Bull and Wife, 3 Dallas, 386, and Watson et al. vs. Mercer, 8 Peters, 110. The question as to whether the act violated the constitution, of Maryland; wfts not before the Court in the case in 10 Howard.

The question there was, whether it was in Violation of the Constitution of .the United States, and the Court say, “ the act of the Maryland Legislature, of December, 1841, simply ordering a new trial of the inquisition, does not fall within any definition given of an ex post facto law, and is not, therefore, assailable on that- ac-^ count,” Upon turning to the Constitution of Maryland, we do not fifid that its Legislature Were restrained from passing said as in this State. The 6th

article of their. Declaration of Eights leads, “that bhe Legislative, Executive and Judicial powers of Governfanent ought to be forever separate and distinct from each other.” There was not added to this a provision similar to that in the Constitution of Florida.' As we have already stated, the question whether said act was in violation of the Constitution of Maryland was not raised; and if it had been, doubt if the decision would have been any different from what it was, for the reason the Legislature of that State' were not restrained from exercising any such power. The case of Calder and wife vs.

Bull and wife was a case from Connecticut, in which State there was not at that time any written Constitution or restraint upon such legislation. In the case of Livingston, lessee, vs. Moore and-others, the consideration of the Constitution of Pennsylvania, as to the powers of its Legislature, was before the Court; and the question was whether there was a constitutional restraint. The Court decided the Legislature were under no restraint. Of all the cases cited by the learned counsel in this case, the case of Livingston, lessee, vs. Moore is the only one in which the State Constitution was considered.

In all the others, the questions were whether the Constitution of the United States had been violated by the State Legislature.

Did the syllabus in the case cited in 10 Howard represent that Court as having decided, the States wh&rein there is no constitutional restrcomt have a right to direct a rehearing of cases decided in their own Courts, we should agree with them.' As it is, the question is upon the construction of our 0wn constitution, which instrument, upon this shbject, is clear and distinct, and means just what'it says,- to wit: The Legislature shall not exercise any power .properly belonging to the Judiciary.

It is important to keep up this line of demarkation in the different branches of the' Government, otherwise the respective departments will often be in serious conflict, to the injury of the Government and country; and rights, once considered as sacred as justice itself, consignee? to popular will and popular excitements. This Court has always endeavored to act with the legal deference to a co-ordinate part of the Government,- and at all times aimed not to tread upon the province of any of its powers. This principle we announced in the case of Cotten et al. vs.

The Commissioners of Leon Co., 6 Florida, 613, wheréin we say: “"While it is an essential element in.the character of an independent judiciary firmly to maintain. and resolutely to exercise its appropriate powers when properly invoked, it is equally its duty to be careful not rashly and inconsiderately to trench upon or invade the precincts the other departments of the Government.” With these views, we turn to the act of Assembly under which this application is authorized, to consider whether the directing of the Attorney General to take steps in the suit which had been decided was the exercise of a power properly belonging to the judicial department, and whether it impairs the obligation. a In an ordinary suit between two private parties, it woulcl unquestionably be a very improper interference, to say the least of it.

But in this case the .Trustees, who are a party, are public officers. The trust committed to their charge is placed there by the General Assembly; their duties are defined; the objects of their trust are of the most public nature,'to wit: internal improvements. -The Legislature is their creator — they are responsible to them as well as to the cestui que trusts. The General is the law officer of the State, and,^ as such, subject to the direction of the General Assembly, in the prosecution of all suits in which it is lawful for him to act. To him the Legislature look for legal advice and counsel.

Suppose it had come to the knowledge of the Legislature that the Trustees of the Internal Improvement Fund were miswaging a suit in which the fund was involved, and the trust would be perverted — in short, the. objects of the trust were not likely to be carried out in- consequence of their dereliction — would it not be proper and the duty of the Legislature to direct.tlie action of the Attorney General in the matter ?

Suppose a suit had been decided, in which the trusts delegated to- the said Trustees were seriously affected, injured and perverted, would it'not be-proper legislation for the General Assembly to direct the Attorney — by bill' or other-. wise, in any legal way in which it can be done — if not in a rehearing between said parties, then by any other suit in which said injury could be arrested? -We tliinlc it would. Whether the Attorney General can -by any act reach this suit, is another thing, and to be determined when application is made.

So, whether the questions in this suit can be settled to the .satisfaction of the General Assembly, will be a matter to be determined when the Attorney General institutes his suit by bill or otherwise, It is argued that this act impairs the obligation of a contract, and thereby affects the vested rights of said William Bailey. If this is done at all, it is because it does away the force of the law as decided by the*Supreme .Court tin this cause — that is to say, the right to havedhe judgment carried out.

This it has not attempted by any ■ express, provision,' and if any such result is likely to flow from it, then it will be time to consider whether the act directing it is unconstitutional or not. Let us return to the motion to docket the cause. To docket the cause would imply there was such a cause in Court, and to entertain a rehearing would be a farce, unless the judgment entered on the 19th of April, 1862, (about one year and eight months ago,) was vacated or recalled.

In cases where application is. made under the rule of Court, the judgment of the Court is not enrolled until the applica-/l tion is disposed of. In this case, the ^ application was denied and judgment enrolled. The term of Court in which said," judgment was entered has long since passed, and the ques-1 tion arises, can this Court recall or vacate said judgment ? If this can be done now, it can be done twenty years from this time, and there is no telling when litigation would cease. The exercise of such a power, if it existed at all, woiild'be the most uprooting and dangerous act ever exercised by anj Court.

No such power, however, exists. The judgment of this Court during 'the term in which it is pronounced, like any other order, may be vacated, corrected and changed. But-alter it is enrolled, and tlie term passed at which it was pronounced, the power of the' Court over the record ceases and the judgment possesses a solemnity and sanctity which holdsut sacred, and cannot be even appealed from, much le'ss recalled. —Horn’s Executors vs. Gartman, 1 Florida, 197; Bobb vs. Bobb, 2 A. K. Marshall, 240. It is therefore ordered that the motion to docket this cause be denied.