Lapas attēli
PDF
ePub

est after the maturity of the debt, where the contract is silent; in the liability of the drawer of a protested bill to pay exchange and damages, and in the right of the drawer and indorser to require proof of demand and notice. These are as much incidents and conditions of the contract as if they rested upon the basis of a distinct agreement. Green v. Biddle, 8 Wheat. 92, 5 L. Ed. 547; Bronson v. Kinzie, 1 How. 319, 11 L. Ed. 143; McCracken v. Hayward, 2 How. 612, 11 L. Ed. 397; People v. Bond, 10 Cal. 570; Ogden v. Saunders, 12 Wheat. 231, 6 L. Ed. 606.

In Green v. Biddle, the subject of laws which affect the remedy was elaborately discussed. The controversy grew out of a compact. between the states of Virginia and Kentucky. It was made in contemplation of the separation of the territory of the latter from the former, and its erection into a state, and is contained in an act of the legislature of Virginia, passed in 1789, whereby it was provided "that all private rights and interests within" the district of Kentucky "derived from the laws of Virginia prior to such separation shall remain valid and secure under the laws of the proposed state, and shall be determined by the laws now existing in this state.” By two acts of the legislature of Kentucky, passed respectively in 1797 and 1812, several new provisions relating to the consequences of a recovery in the action of ejectment--all eminently beneficial to the defendant, and onerous to the plaintiff-were adopted into the laws of that state. So far as they affected the lands covered by the compact, this court declared them void. It was said: "It is no answer that the acts of Kentucky now in question are regulations of the remedy, and not of the right to the lands. If these acts so change the nature and extent of existing remedies as materially to impair the rights and interests of the owner, they are just as much a violation of the compact as if they overturned his rights and interests."

In Bronson v. Kinzie, 1 How. 311, 11 L. Ed. 143, the subject was again fully considered. A mortgage was executed in Illinois containing a power of sale. Subsequently, an act of the legislature was passed which required mortgaged premises to be sold for not less than two-thirds of their appraised value, and allowed the mortgagor a year after the sale to redeem. It was held that the statute, by thus changing the pre-existing remedies, impaired the obligation of the contract, and was therefore void.

In McCracken v. Hayward, 2 How. 608, 11 L. Ed. 397. the same principle, upon facts somewhat varied, was again sustained and applied. A statutory provision that personal property should not be sold under execution for less than two-thirds of its appraised value. was adjudged, so far as it affected prior contracts, to be void, for the same reason. * * *

A statute of frauds embracing a pre-existing parol contract not before required to be in writing would affect its validity. A statute

declaring that the word "ton" should thereafter be held, in prior as well as subsequent contracts, to mean half or double the weight before prescribed, would affect its construction. A statute providing that a previous contract of indebtment may be extinguished by a process of bankruptcy would involve its discharge, and a statute. forbidding the sale of any of the debtor's property, under a judgment upon such a contract, would relate to the remedy.

It cannot be doubted, either upon principle or authority, that each of such laws passed by a state would impair the obligation of the contract, and the last-mentioned not less than the first. Nothing can be more material to the obligation than the means of enforcement. Without the remedy the contract may, indeed, in the sense of the law, be said not to exist, and its obligation to fall within the class of those moral and social duties which depend for their fulfilment wholly upon the will of the individual. The ideas of validity and remedy are inseparable, and both are parts of the obligation, which is guaranteed by the Constitution against invasion. The obligation of a contract "is the law which binds the parties to perform their agreement." Sturges v. Crowninshield, 4 Wheat. 157, 4 L. Ed. 529. The prohibition has no reference to the degree of impairment. The largest and least are alike forbidden. In Green v. Biddle, 8 Wheat. 84, 5 L. Ed. 547, it was said: "The objection to a law on the ground of its impairing the obligation of a contract can never depend upon the extent of the change which the law effects in it. Any deviation from its terms by postponing or accelerating the period of performance which it prescribes, imposing conditions not expressed in the contract, or dispensing with those which are, however minute or apparently immaterial in their effect upon the contract of the parties, impairs its obligation. Upon this principle it is that if a creditor agree with his debtor to postpone the day of payment, or in any other way to change the terms of the contract, without the consent of the surety, the latter is discharged, although the change was for his advantage."

"One of the tests that a contract has been impaired is that its value has, by legislation, been diminished. It is not, by the Constitution, to be impaired at all. This is not a question of degree or cause, but of encroaching, in any respect, on its obligation-dispensing with any part of its force." Planters' Bank v. Sharp et al., 6 How. 327, 12 L. Ed. 447.

This has reference to legislation which affects the contract directly, and not incidentally or only by consequence.

The right to imprison for debt is not a part of the contract. It is regarded as penal rather than remedial. The states may abolish it whenever they think proper. Beers v. Haughton, 9 Pet. 359, 9 L. Ed. 145; Ogden v. Saunders, 12 Wheat. 230, 6 L. Ed. 606; Mason v. Haile, 12 Wheat. 373, 6 L. Ed. 660; Sturges v. Crowninshield, 4 Wheat. 200, 4 L. Ed. 529. They may also exempt from sale, under

execution, the necessary implements of agriculture, the tools of a mechanic, and articles of necessity in household furniture. It is said: "Regulations of this description have always been considered in every civilized community as properly belonging to the remedy, to be exercised by every sovereignty according to its own views of policy and humanity."

It is competent for the states to change the form of the remedy, or to modify it otherwise, as they may see fit, provided no substantial right secured by the contract is thereby impaired. No attempt has been made to fix definitely the line between alterations of the remedy, which are to be deemed legitimate, and those which, under the form of modifying the remedy, impair substantial rights. Every case must be determined upon its own circumstances. Whenever the result last mentioned is produced, the act is within the prohibition of the Constitution, and to that extent void. Bronson v. Kinzie, 1 How. 311, 11 L. Ed. 143; McCracken v. Hayward, 2 How. 608, 11 L. Ed. 397.

If these doctrines were res integræ the consistency and soundness of the reasoning which maintains a distinction between the contract and the remedy-or, to speak more accurately, between the remedy and the other parts of the contract-might perhaps well be doubted. 1 Kent's Commentaries, 456; Sedgwick on Stat. and Cons. Law, 652; Mr. Justice Washington's dissenting opinion in Mason v. Haile, 12 Wheat. 379, 6 L. Ed. 660. But they rest in this court upon a foundation of authority too firm to be shaken; and they are supported by such an array of judicial names that it is hard for the mind not to feel constrained to believe they are correct. The doctrine upon the subject established by the latest adjudications of this court render the distinction one rather of form than substance.

When the bonds in question were issued, there were laws in force which authorized and required the collection of taxes sufficient in amount to meet the interest, as it accrued from time to time, upon the entire debt. But for the act of the 14th of February, 1863, there would be no difficulty in enforcing them. The amount permitted to be collected by that act will be insufficient; and it is not certain that anything will be yielded applicable to that object. To the extent of the deficiency the obligation of the contract will be impaired, and if there be nothing applicable, it may be regarded as annulled. A right without a remedy is as if it were not. For every beneficial purpose it may be said not to exist.

It is well settled that a state may disable itself by contract from exercising its taxing power in particular cases. New Jersey v. Wilson, 7 Cranch, 166, 3 L. Ed. 303; Dodge v. Woolsey, 18 How. 331, 15 L. Ed. 401; Piqua Branch v. Knoop, 16 How. 369, 14 L. Ed. 977. It is equally clear that where a state has authorized a municipal corporation to contract and to exercise the power of local taxation

to the extent necessary to meet its engagements, the power thus given cannot be withdrawn until the contract is satisfied. The state and the corporation, in such cases, are equally bound. The power given becomes a trust which the donor cannot annul, and which the donee is bound to execute; and neither the state nor the corporation can any more impair the obligation of the contract in this way than in any other. People v. Bond, 10 Cal. 570; Dominic v. Sayre, 5 N. Y. Super. Ct. 555.

The laws requiring taxes to the requisite amount to be collected, in force when the bonds were issued, are still in force for all the purposes of this case. The act of 1863 is, so far as it affects these bonds, a nullity. It is the duty of the city to impose and collect the taxes in all respects as if that act had not been passed. A different result would leave nothing of the contract but an abstract right, of no practical value, and render the protection of the Constitution a shadow and a delusion.

Judgment reversed.

[blocks in formation]

INHABITANTS OF GOSHEN v. INHABITANTS OF STONINGTON.

(Supreme Court of Errors of Connecticut, 1822. 4 Conn. 209, 10 Am. Dec. 121.)

[Motion for new trial. Joseph Cooke was legally settled in the town of Stonington, and in 1807 was married to Betsey Cooke by an ordained but itinerant minister of the Methodist church. The statute law then in force gave no validity to such marriages unless the minister were settled instead of itinerant. In 1820 a statute purported to render valid to all intents and purposes marriages performed by ordained ministers qualified thereto by the forms. and usages of any religious society. If constitutional, this statute validated Cooke's marriage. From 1818 to 1820 the town of Goshen had supported Betsey Cooke and five children of herself and Joseph, as paupers, and in 1821 sued to recover the expense thereof from Stonington, which was legally chargeable therewith if said marriage was valid. A verdict was found for the plaintiffs under a direction of the court upholding the curative statute of 1820, and defendants moved for a new trial.]

HOSMER, C. J. * * * First, it was said that the retrospective operation of the law may and ought to be obviated by construing it to intend the validation of marriages merely, without imparting to it any retrospection as to the rights of others. It must be admitted that by construction, if it can be avoided, no statute should have a retrospect, anterior to the time of its commencement. Helmore v. Shuter et al., 2 Show. 17; Dash v. Van Kleeck, 7 Johns. (N. Y.) 477, 485, 5 Am. Dec. 291. This principle is founded on the supposition, that laws are intended to be prospective only. But when a statute, either by explicit provision or necessary implication, is retroactive, there is no room for construction; and if the law ought not to be effectuated, it must be on a different principle. The act of May, 1820, is, in its expression, inconvertibly clear and definite. It does not pause, after imparting validity to marriages, but confirms them "to all intents and purposes." By this phraseology, they are declared to be valid ab initio. *

Secondly, it has been insisted, that the law in question is unconstitutional. There is no pretence that it is opposed to the Constitution of the United States; that is, that the confirmatory act is a

1 For discussion of principles, see Black, Const. Law (3d Ed.) §§ 295–299.

« iepriekšējāTurpināt »