
    No. XI.
    Taylor v. Duncan.
    (See .)
    
      Appeal from Gonzales.
    
    
      
      .—Taylor v. Duncan, p. 514.
      1 Appeal will be dismissed if transcript is not sent up within the time prescribed by law unless satisfactory excuse be shown. Lockhart v. Lock-hart, 1 T„ 199, 201; Hicks v. Harlan, 1 T., 560; State v. Kroner, 2 T., 492; Keese v. Swift, 3 T., 111; Urbane v. Johnson, 3 T., 191; Reynolds v. De-chaumes, 22 T., 116; Hall v. Claiborne, 27 T., 217; House v. Bennett, 40 T., 346; Wilson v. Adams, 50 T., 5, 13; Warren v. Wooters, 52 T., 568; Mills v. Paul, 1 T. C. A., 419. Where right of appeal is lost by lapse of time it can not be revived by statute subsequently passed. Lockhart v. Lockhart, 1 T., 199, 201; First Nat. Bank v. Preston Nat. Bank, 85 T., 560; First Nat. Bank v. Preston Nat. Bank, 3 T. C. A., 545.
      2 Retrospective laws prohibited by Constitution are such as give rights or impair vested rights, by relation back. Sutherland v. De Leon, 1 T., 250; De Cordova v. Galveston, 4 T., 470; Paschal v. Perez, 7 T., 348; Hamilton v. Flinn, 21 T., 713; Sherwood v. Fleming, 25 T. Supp., 408; Bender v. Crawford, 33 T., 745; Moore v. Letchford, 35 T., 185; Chalk v. Darden, 47 T., 438; White v. Martin, 66 T., 340; Mellinger v. Houston, 68 T., 37; Maynard v. Freeman (T. C. A.), U. R. C., 1900; Calder v. Bull, 3 Dal., 386; Cummings v. Missouri, 4 Wall., 277; Campbell v. Holt, 115 U. S., 630. Providing a remedy for existing rights, or changing remedy, is not a retrospective law prohibited. Hall v. Allcorn, Dal., 433; De Cordova v. Galveston, 4 T., 470; Paschal v. Perez, 7 T., 348; Treasurer v. Wygall, 46 T., 447; Worsham v. Stevens, 66 T., 89; Parker v. Buckner, 67 T., 20; Odom v. Garner, 86 T., 374; Association v. Newman, 86 T., 380; Fristoe v. Blum, 92 T., 76; Standifer v. Wilson, 93 T., 232; Capps v. Carvey (T. C. A.), U. R. C., 1897; Maynard v. Freeman (T. C. A.), U. R. C., 1900. Statutes are never construed to operate retrospectively unless their plain language requires it. Taylor v. Duncan, Dal., 614; Linn v. Scott, 3 T., 67; Martin v. State, 24 T., 61; Orr v. Rhine, 45 T., 346; Insurance Co. v. Ray, 50 T., 511; Grigsby v. Peak, 57 T., 142; Johnson v. Taylor, 60 T., 360; Mellinger v. Houston, 68 T„ 37; Rockwall Co. v. Kaufman Co., 69 T., 172; McGregor v. Goldammer, 2 U. C., 49; Murray v. Gibson, 15 How., 421; Harvey v. lyler, 2 Wall., 329; Chewheong v. United States, 112 U. S., 536; Shreveport v. Cole, 129 U. S., 36.
    
   MORRIS, Justice.

A motion has been made in this case to dismiss the writ of error granted to Taylor, because the judgment which that writ was granted to revise was rendered previous to any law authorizing such writ, and after the right of appeal, under the laws existing at the time of the rendition of the judgment, had been lost by lapse of time.

The principal questions that arise in the determination of this motion are two: First, that at the time of the rendition of this judgment, was the method known to the law of obtaining a revision in a higher court of a case adjudicated in a lower? Second, whether the laws passed subsequent to that time giving additional or enlarged remedies can be considered as applying either directly or by implication to cases which had been previously adjudicated. The judgment in this cause was rendered in November, 1839, and upon an examination of the statute law of the Eepublic up to that time, we find that the only means by which a cause could be transferred from an inferior to a superior tribunal in order to its revision by the latter was an appeal; the terms, time and manner whereof are variously modified by different provisions in those statutes. Vide 1 vol. Stats., p. 203, sec. 15; 2 vol. Id., p. 94, sec. 1. All of these provisions require the notice of appeal to be given at the term of the court at which the appeal was prayed, and time only was extended by the amendment for the filing of the appeal bond in those instances in which it was necessary that .such bond should be given. That time varied from the term at which the appeal was taken, to six days subsequent to the expiration of the term of the court at which the appeal was prayed. But it is contended that we must conclude, from words and expressions in the same statutes, that Congress contemplated some other method of obtaining a revision of the decisions of an inferior by the Supreme Court than appeal. The expressions used in the statutes and referred to as raising this presumption will be found in volume 1, page 79 (statute organizing the Supreme Court), section 3; where it is said “that the Supreme Court shall have jurisdiction over and hear and determine all manner of pleas, plaints, etc., which may be brought before it from any court in this Eepublic, either by appeal or other legal process,” etc. In section 8 “the said court or any judge thereof, in vacation, may grant writs of injunction, supersedeas, and such other writs as the laws permit to the judgments and decrees of the district or county courts, on such terms and conditions as the laws prescribe in cases of appeal, etc., returnable either to the Supreme Court or before any judge of said court, as the case may require.” Section 16 requires that a copy of the bond given by the plaintiff shall be transmitted, with a transcript of the record of the cause in which such appeal was taken, or which may he taken in any other way, to the Supreme Court.

In volume 1 (under the law organizing district courts, page 203, section 4), the judges of the district courts are authorized, in vacation or term time, to grant writs of habeas corpus, mandamus, and all other remedial writs known to the law, returnable according to law, either in the Supreme Court or either of said district courts, as the case may be.

Other sections of law using similar expressions might be found, but as enough have been quoted to place the argument in a fair light before us, we shall now proceed to a consideration of its force and effect. The legitimate method of construing the statute laws of any country is to view them in connection with reference to the fundamental law of that country, on which they must necessarily be based. When the statutes are silent on any subject, or when doubt or difficulties arise as to the intention of the legislators in any statutory enactment, it is the duty of the courts to look to that fundamental law as the rule of decision in the one case, and the proper method of arriving at the intention of the legislators in the other. What, then, at the time of the passage of these various statutes which have been before alluded to, was the fundamental law of the land ? The answer is plain: the Constitution of the Republic of Texas and the Spanish civil law as in force in the Mexican confederacy. Upon these as a basis have our statutes been passed, and to these must we look as the guide of our decisions when the statutes are silent, or as the rule of construction when they are doubtful. By reference to that law we find that appeal is the only remedy by which a party conceiving himself aggrieved by the judgment or decree of an inferior court could obtain a revision thereof in a higher tribunal. The terms, time, and other requisites thereto are expressly given. 1 White, 308; Laws Coahuila and Texas, p. 266, art. 109. Our statutes then, as we have seen, prescribe no other specific remedy but appeal. And reference to the fundamental law of the land shows no method of appeal analogous to the remedy which has been pursued in this case. That remedy is a writ of error, a writ strictly of common law origin, and which has once been decided by the court as an incident to that system of law, necessarily accompanying its introduction unless expressly excluded. The argument of counsel goes to this extent, that because our Constitution provides that the common law shall at some convenient time be introduced by Congress, and because from the expressions used in the statutes before referred to, it would seem that Congress contemplated some other method of revising the decisions of the inferior courts than appeal, that therefore that other method was a “writ of error.” That this does not follow we must at once perceive. At the time of the passage of those statutes and the rendition of this judgment, the “common law” had not been introduced as the law of the land; no writ of this nature was given by these statutes; none analogous to be found in the fundamental law to which we must look as the rule of decision; and were we by our decision to declare its existence, we should be traveling further than the lawmaking power and assuming to ourselves the legislative functions, and by judicial act bringing forth before its time, from the legislative womb, the embryo fetus of the common law .

Upon this point then we must conclude that appeal was the only remedy <known to our law at the time of the rendition of this judgment. Passing then to the consideration of the second point, it is contended that by the introduction of the common law the writ of error as an incident thereto has also been introduced, and even if that be not true, the statute passed in 1841 has expressly recognized it as one of the modes of appeal; and that under those laws this writ has been properly granted and can rightly be determined by this court. It is not necessary for us to determine in this cause whether by the introduction of the common law the writ of error has also been introduced, nor are we to be considered as so doing. But admit it to be so; let us then examine this case with reference to that statute, and also the subsequent statute expressly authorizing that writ. The fair and proper method of construing statutes is to give them a prospective action, having effect only on causes that may arise subsequent to their passage. Unless therefore express words be used, clearly intimating the will of the legislative body that the operation of a statute should be retrospective, the courts will not give such operation by construction. There is nothing in these statutes which either directly or by , implication requires such construction at our hands. But suppose that the intention of the legislative body was that all causes previously adjudicated, where the remedy by appeal had been lost by lapse of time and laches of the parties, should by means of this writ again be revived by this tribunal if the parties so wished; such a statute would be plainly retrospective (1 Cond. Rep. U. S., p. 176) and if it affected the rights of individuals, would under our Constitution be null and void. Const., sec. 16, Bill of Rights. In the case under consideration, the plaintiff had obtained his judgment and the defendant had lost his remedy by appeal, by failing to resort to it in the time prescribed in law. The plaintiff’s right had under the law become final and vested. 4 Burrow, 2, 460; 1 Part., 283, Law 19; Id., 311, Law 24; 1 White, 309, sec. 4. A law then which infringes a vested right by retrospective action is void under our Constitution; the judgment in this case was a vested right at the time of the passage of these -laws; therefore so far as affecting that judgment they are null and void. But as we before said, we do not conceive that the remedy introduced by these laws was intended to apply to cases previously adjudicated and settled, for we can not believe that Congress would lend its aid to those who had slumbered over their rights, or that it would violate another principle, viz., that there should be some end to litigation by calling up the specters of departed causes to pass again in review before the judicial eye; not having expressly done so, we do not feel at liberty to construe such to be their will by implication, especially when after so doing we should then be forced to declare their acts unconstitutional and void. Since the remedy, then, which existed at the time of the rendition of this judgment had been lost to the party by lapse of time, and as the remedies subsequently introduced must be construed as applying only to cases adjudicated since their introduction, we conclude that the writ of error in this case was improperly granted, and must therefore be quashed and the cause dismissed.

Dismissed.  