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to be wantonly deprived, it is clear the legislature may do so, if it will,
unless the constitution of thestate is in the way.
1 Section 10 of article 1 of the constitution of the state provides: ·"No
court shall be secret, but justice shall be administered openly and with-
out purchase, completely and without delay; and every man shall have
remedy bythe course of law for injury drme him in person, property, or reputa-
tion." In my judgment, the latter clause of this section has an impor-
” tant bearing on this case. To begin with, it may be admitted that the
remedy guarantied by this provision is not intended for the redress of
any novel, indehnite, or remote injury that was not then regarded as
within the pale of legal redress. But whatever injury the law, as it then
_ -stood, took cognizance of and furnisheda remedy for, every man shall
continue to have a remedy for by due course of law. When this con- r
stitution was formed and adopted, it was and had been the law of the
land, from comparatively an early day, that a person should have an
action for damages against a county for an injury caused by its act or
omission; · If this then known and accustomed remedy can be taken
away in the face of this constitutional provision, what other maynot?
Can the legislature, in some spasm of novel opinion, take away every
man’s remedy for slander, assault and battery, or the recovery of a debt?
and, if it cannot do so in such cases, why can it in this? - Y
Contemporaneous construction is always resorted to for the interpre-
tation of constitutions made in the orderly and peaceful progress of or-
ganized society. What was the law, practice, or usage at the time is
assumed to have been known to the framers of the constitution, and the
people who adopted it; and the phrases, capable of a larger or smaller
application, as used therein, are properly interpreted by reference thereto.
For instance, although the constitution requires justice to be "adminis-
tered openly and without purchase," no one doubts that, in the light of
contemporaneous usage, the parties to legal proceedings may be required `
to contribute specially to the expense thereof, or that, in a certain class
of cases, the general public, in the interest of public morals and decency,
may be excluded from the court room. Cooley, Const. Lim. 312. For
» these reasons, in my judgment, the legislature cannot, in the face of this
constitutional provision, deny to any one a remedy by due course of law
for an injury arising from the wrongful act or omission of a county, and
therefore the amendment of section 347 of the Code of Civil Procedure
is null and void. But I am content to rest the decision of this case on
’ the conclusion that the amendment of section 347 does not and was not
intended to affect the plaintiii"s right of action. It is a fundamental
rule in the construction of statutes that they shall only affect future cases,
unless the contrary intent is plainly expressed. The very essence of a
new law is a rule for future cases.
“ In Dash v. Van Kleeck, 7 Johns. 503, Mr. Chief Justice KENT held
that a statute ought never to be construed so as to "defeat a suit already
commenced upon a right already vested," "if it be susceptible of any
other" construction; and said: "It is a principle in the English com-
mon law, as ancient as the law itself, that a statute even of its omnipo-
tent parliament is not to have a retrospective eii"ect."