ings, 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. And for like reasons a statute vali decree, the legacies given to those absent defendants by the will are taken from them and given to others, according to our statute of descents. Until the passage of the act in question, they were not bound by the verdict of the jury in this case, and it could not form the basis of a valid decree. Had the decree been rendered before the passage of the act, it would have been as competent to make that valid as it was to validate the antecedent proceedings upon which alone the decree could rest. The want of jurisdiction over the defendants was as fatal to the one as it could be to the other. If we assume the act to be valid, then the legacies which before belonged to the legatees have now ceased to be theirs, and this result has been brought about by the legislative dating proceedings * had before an intruder into a judicial [* 108] office, before whom no one is authorized or required to appear, and who could have jurisdiction neither of the parties nor of the subject-matter, would also be void.1 act alone. The effect of the act upon them is precisely the same as if it had declared in direct terms that the legacies bequeathed by this will to these defendants should not go to them, but should descend to the heirs-at-law of the testator, according to our law of descents. This it will not be pretended that they could do directly, and they had no more authority to do it indirectly, by making proceedings binding upon them which were void in law." See, to the same effect, Richards v. Rote, 68 Penn. St. 248; Pryor v. Downey, 50 Cal. 388; s. c. 19 Am. Rep. 656; Lane v. Nelson, 79 Penn. St. 407; Shonk v. Brown, 61 Penn. St. 320; Spragg v. Shriver, 25 Penn. St. 282. 66 1 In Denny v. Mattoon, 2 Allen, 361, a judge in insolvency had made certain orders in a case pending in another jurisdiction, and which the courts subsequently declared to be void. The legislature then passed an act declaring that they are hereby confirmed, and the same shall be taken and deemed good and valid in law, to all intents and purposes whatsoever." On the question of the validity of this act the court say: "The precise question is, whether it can be held to operate so as to confer a jurisdiction over parties and proceedings which it has been judicially determined does not exist, and give validity to acts and processes which have been adjudged void. The statement of this question seems to us to suggest the obvious and decisive objection to any construction of the statute which would lead to such a conclusion. It would be a direct exercise by the legislature of a power in its nature clearly judicial, from the use of which it is expressly prohibited by the thirtieth article of the Declaration of Rights. The line which marks and separates judicial from legislative duties and functions is often indistinct and uncertain, and it is sometimes difficult to decide within which of the two classes a particular subject falls. All statutes of a declaratory nature, which are designed to interpret or give a meaning to previous enactments, or to confirm the rights of parties either under their own contracts or growing out of the proceedings of courts or public bodies, which lack legal validity, involve in a certain sense the exercise of a judicial power. They operate upon subjects which might properly come within the cognizance of the courts and form the basis of judicial consideration and judgment. But they may, nevertheless, be supported as being within the legitimate sphere of legislative action, on the ground that they do not declare or determine, but only confirm rights; that they give effect to the acts of parties according to their intent; that they furnish new and more efficacious remedies, or create a more beneficial interest or tenure, or, by supplying defects and curing informalities in the proceedings of courts, or of public officers acting within the scope of their authority, they give effect to acts to which there was the express or implied assent of the parties interested. Statutes which are intended to accomplish such purposes do not necessarily invade the province, or directly interfere with the action of judicial tribunals. But if we adopt the broadest and most comprehensive view of the power of the legislature, we must place some limit beyond which the authority of the legislature cannot go without trenching on There is another class of cases in which it would seem that action ought to be referred exclusively to the judicial tribunals, 66 but in respect to which the prevailing doctrine seems to [*110] be, that the legislature *has complete control unless specially restrained by the State constitution. The granting of divorces from the bonds of matrimony was not confided to the courts in England, and from the earliest days the Colonial and State legislatures in this country have assumed to possess the same power over the subject which was possessed by the Parliament, and the clear and well-defined boundaries aside their judgments, or to take of judicial power." Although it cases out of the settled course of may be difficult, if not impossible, judicial proceeding. It is on this to lay down any general rule which principle that it has been held, that may serve to determine, in all cases, the legislature have no power to grant whether the limits of constitutional a new trial or direct a rehearing of a restraint are overstepped by the ex- cause which has been once judicially ercise by one branch of the govern- settled. The right to a review, or to ment of powers exclusively delegated try anew facts which have been deto another, it certainly is practicable termined by a verdict or decree, to apply to each case as it arises some depends on fixed and well-settled test by which to ascertain whether principles, which it is the duty of this fundamental principle is violated. the court to apply in the exercise If, for example, the practical operation of a sound judgment and discretion. of a statute is to determine adver- These cannot be regulated or govsary suits pending between party and erned by legislative action. Taylor party, by substituting in place of the v. Place, 4 R. I. 324, 337; Lewis v. well-settled rules of law the arbitrary Webb, 3 Me. 326; Dechastellux v. will of the legislature, and thereby Fairchild, 15 Penn. St 18. A fortiori, controlling the action of the tribunal an act of the legislature cannot set before which the suits are pending, aside or amend final judgments or no one can doubt that it would be an decrees." The court further conunauthorized act of legislation, be- sider the general subject at length, cause it directly infringes on the and adjudge the particular enactment peculiar and appropriate functions of under consideration void, both as an the judiciary. It is the exclusive exercise of judicial authority, and province of the courts of justice to also because, in declaring valid the apply established principles to cases void proceedings in insolvency against within their jurisdiction, and to en- the debtor, under which assignees had force their jurisdiction by render- been appointed, it took away from ing judgments and executing them the debtor his property, "not by due by suitable process. The legislature process of law or the law of the land, have no power to interfere with this but by an arbitrary exercise of legisjurisdiction in such manner as to lative will." See, further, Griffin's change the decision of cases pending Executor v. Cunningham, 20 Grat. before courts, or to impair or set 109; State v. Doherty, 60 Me. 504. from time to time they have passed special laws declaring a dissolution of the bonds of matrimony in special cases. Now it is clear that "the question of divorce involves investigations which are properly of a judicial nature, and the jurisdiction over divorces ought to be confined exclusively to the judicial tribunals, under the limitations to be prescribed by law ;" and so strong is the general conviction of this fact, that the people in framing their constitutions, in a majority of the States, have positively forbidden any such special laws.2 1 2 Kent, 106. See Levins v. Slea- powers on the courts of justice. tor, 2 Greene (Iowa), 607. 2 The following are constitutional provisions: Alabama: Divorces from the bonds of matrimony shall not be granted but in the cases by law provided for, and by suit in chancery; but decrees in chancery for divorce shall be final, unless appealed from in the manner prescribed by law, within three months from the date of the enrolment thereof. Arkansas: The General Assembly shall not have power to pass any bill of divorce, but may prescribe by law the manner in which such cases may be investigated in the courts of justice, and divorces granted. California: No divorce shall be granted by the legislature. The provision is the same or similar in Iowa, Indiana, Maryland, Michigan, Minnesota, Nevada, Nebraska, Oregon, New Jersey, Texas, and Wisconsin. Florida: Divorces from the bonds of matrimony shall not be allowed but by the judgment of a court, as shall be prescribed by law. Georgia: The Superior Court shall have exclusive jurisdiction in all cases of divorce, both total and partial. Illinois: The General Assembly shall not pass . . . special laws . . . for granting divorces. Kansas: And power to grant divorces is vested in the District Courts subject to regulations by law. Kentucky: The General Assembly shall have power to grant divorces, . . . but by general laws shall confer such no ... Louisiana: The legislature may enact general laws regulating the . . . granting of divorce; but no special laws shall be enacted relating to particular or individual cases. Massachusetts: All causes of marriage, divorce, and alimony . . . shall be heard and determined by the Governor and Council, until the legislature shall by law make other provision. Mississippi: Divorces from the bonds of matrimony shall not be granted but in cases provided for by law, and by suit in chancery. New Hampshire: All causes of marriage, divorce, and alimony. . . shall be heard and tried by the Superior Court, until the legislature shall by law make other pro vision. New York: . . . nor shall any divorce be granted otherwise than by due judicial proceedings. North Carolina: The General Assembly shall have power to pass general laws regulating divorce and alimony, but shall not have power to grant a divorce or secure alimony in any particular case. Ohio: The General Assembly shall grant no divorce, nor exercise any judicial power, not herein expressly conferred. Pennsylvania: The legislature shall not have power to enact laws annulling the contract of marriage in any case where by law the courts of this Commonwealth are, or hereafter may be, empowered to decree a divorce. Tennessee: The legislature shall have no power to grant divorces, but may authorize [* 111] *Of the judicial decisions on the subject of legislative power over divorces there seem to be three classes of cases. The doctrine of the first class seems to be this: The granting of a divorce may be either a legislative or a judicial act, according as the legislature shall refer its consideration to the courts, or reserve it to itself. The legislature has the same full control over the status of husband and wife which it possesses over the other domestic relations, and may permit or prohibit it according to its own views of what is for the interest of the parties or the good of the public. In dissolving the relation, it proceeds upon such reasons as to it seem sufficient; and if inquiry is made into the facts of the past, it is no more than is needful when any change of the law is contemplated, with a view to the establishment of more salutary rules for the future. The inquiry, therefore, is not judicial in its nature, and it is not essential that there be any particular finding of misconduct or unfitness in the parties. As in other cases of legislative action, the reasons or the motives of the legislature cannot be inquired into; the relation which the law permitted before is now forbidden, and the parties are absolved from the obligations growing out of that relation which continued so long as the relation existed, but which necessarily cease with its termination. Marriage is not a contract, but a status; the parties cannot have vested the courts of justice to grant them for such causes as may be specified by law; but such laws shall be general and uniform in their operation throughout the State. Virginia: The legislature shall confer on the courts the power to grant divorces, . . . but shall not by special legislation grant relief in such cases. West Virginia: The Circuit Courts shall have power under such general regulations as may be prescribed by law, to grant divorces, . . . but relief shall not be granted by special legislation in such cases. Missouri: The General Assembly shall not pass any local or special law. . . granting divorces. In Colorado the provision is the same. Under the Constitution of Michigan it was held that, as the legislature was prohibited from granting divorces, they could pass no special act authorizing the courts to divorce for a cause which was not a legal cause for divorce |