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all his rights to protection, has no vested right in what is know in the law as, remedies, nor in any particular existing remedy. He has no such vested interest in the existing laws of the state, as precludes their amendment or repeal by the legislature; nor is there any implied obligation on the part of the state-to protect its citizens against incidental injury occasioned by changes in the law. Whatever belongs merely to the remedy, may be altered according to the will of the state, always provided, the alteration does not impair the obligation of the contract; but if a statute so changes the nature and extent of an existing remedy as materially to impair the rights and interests of the owner of property, it is just as much a violation of the constitutional provision, as if it directly overturned his rights and interests. a If the remedy does not impair the right or property itself, if it still leaves the party a substantial remedy according to the course of justice, as the right existed at the time of the passage of the statute, it does not impair the obligation of the contract, b nor will it be held to do so, merely because the new remedy is less efficient, less speedy, or less convenient than the old one. c
Among the class of statutes which have been held not to have impaired the contract, is that of the abolition of imprisonment for debt in this state, upon existing contracts. The power of confinement of the debtor, as a means of inducing him to perform, and punishment for nonperformance, was an efficient power, but the courts have held that imprisonment was no part of the contract; and to release the debtor from the liability to imprisonment did not impair the obligation. d A good remedy is still left, and the contract still remains in full force. So another statute of this state abolishing the right of distress for rent in arrear. Though this statute took away a part of the remedy existing at the time of making the leases, it was held to be no violation of this constitutional provision; and an express stipulation between the parties contained in the lease, that the lessor should have this remedy, did not prevent the legislature from abolishing it, because this was a Brunson v. Kinzie, 1 How, U. S. R. 316; Green v. Biddle, 8 Wheat, 75-76 b Story v. Furman, 25 N. Y. 233; Van Rensselaer v. Snyder, 12 N. Y. 299-305 e Morse v. Gould, 11 N. Y. 281.
d Sturges v. Crowninshield, 4 Wheat. 200, 201.
a subject concerning which, it was not competent for the parties to contract in such a manner as to prohibit the exercise of legislative powers. a The court said, "this act provided a new remedy in the cases where the right of re-entry was reserved to enforce the collection of the debt due the landlord. This was an ordinary and proper exercise of legislative power, unless individuals by contract can perpetuate a legal remedy in spite of the legislature, which is absurd." And in another case, they said, "If this is a subject on which parties can contract, and if their contracts when made, become, by virtue of the constitution of the United States, superior to the power of the legislature, then it follows, that whatever at any time exists, as part of the machinery for the administration of justice, may be perpetrated, if the parties choose so to agree. That this, can scarcely have been within the contemplation of the makers of the constitution, and that if it prevail as law, it will give rise to grave inconveniences, is quite obvious. Every such stipulation is in its own nature conditional upon the lawful continuance of the process. The state is no party to the contract. It is bound to afford adequate process for the enforcement of rights; but it has not tied its own hands as to the modes by which it will administer justice. Those, from necessity, belong to the supreme power to prescribe, and their continuance, is not the subject of contract between private parties."
So too, a statute of this state, which exempts a portion of a debtors property from liability to execution for debts, even existing debts, and further acts modifiing and increasing such exemptions, are not violations of the constitution, although they seem to diminish the security of the creditor. Chief Justice Taney in relation to that class of cases, said, b "Undoubtedly, a state may regulate at pleasure the modes of proceeding in its courts in relation to past contracts as well as future. It may for example, shorten the period of time within which claims shall be barred by the statute of limitations. It may, if it thinks proper, direct that the necessary implements of agriculture, or the tools of the mechanic, or articles of necessity in household furniture, shall, like wearing apparel, not be liable to execution or judgments. Regulations of this
a Van Rensselaer v. Snyder, 13 N. Y. 299; Conkey v. Hart, 14 N. Y. 22. b Bronson v. Kenzie, 1 How. 815.
description have always been considered, in every civilized com munity, as properly belonging to the remedy, to be exercised or not by every sovereignty, according to its own views of policy and humanity. It must reside in every state, to enable it to secure its citizens from unjust and harrassing litigation, and to protect them in those pursuits which are necessary to the existence and well being of every community."
There is no doubt, however, that a statute which should deprive a party of all legal remedy, would necessarily be void. The legislature by such statute, intending it to have effect upon legal contracts lawfully made and binding upon the parties, would exceed their legitimate powers. Such an act must necessarily impair the obligation of the contract within the meaning of the constitution. This has been adjudged. a "And where a statute does not leave a party a substantial remedy according to the course of justice, as it existed at the time the contract was made, but shows upon its face an intention to clog, hamper or embarrass the proceedings to enforce the remedy, so as to destroy it entirely, and thus impair the contract, so far as it is in the power of the legislature to do it, such statute cannot be regarded as a regulation of the remedy, and is void." But a lawful repeal of a statute cannot constitutionally be made to destroy contracts made under it.
We have intended to dwell no longer upon this branch of the law, than was necessary to lay down the principles which govern it, and cite to the support of such principles, undoubted authority of the courts. As we do not intend this to be a work of practice, we shall not extend the reference to the multitude of cases which illustrate the principles stated.
The question as to the effect of a state to pass insolvent or bankrupt laws, and the classes of cases to which they extend, or can be made to apply, may be considered under this head. The fourth subdivision of section eight article first of the constitution of the United States provides, "that congress shall have power to establish laws on the subject of bankruptcies throughout the United States." This, it has been supposed, amounted to an exclusion of the state legislatures, to enact insolvent or bankrupt
a Call v. Hagger, 8 Mass. 429.
b Cooley on Lim. 289; Oatman v. Bond, 15 Wis. 28.
laws, and for a time, legal controversies were frequent which involved the constitutional effect, and operation of state insolvent laws. More recently, the subject has received the consideration of the federal courts, and certain propositions relating to that question may be regarded as having been finally settled. The unquestioned conclusions of that tribunal may be stated as follows: That there are only three cases, in which the states are excluded from the exercise of any power antecedently possessed by them. 1. When a power is granted to congress in exclusive terms. 2. When the states are expressly prohibited from exercising it in a specific form. 3. When a power is granted to congress, the cotemporaneous exercise of which by the states would be incompatible. a
It had been previously established, that any state in the union has a right to pass a bankrupt law, provided such law does not impair the obligation of the contracts, and, provided there be no act of congress in force to establish a uniform system of bankruptcy conflicting with such law. That although some of the powers of congress are exclusive, from their nature, without any express prohibition of the exercise of the same powers by the states, the power of establishing bankruptcy laws is not of this description. b
More recently it was held, 1. That the power given to the United States to pass bankruptcy laws is not exclusive. 2. That the fair and ordinary exercise of that power by the states, does not necessarily involve a violation of the obligation of contracts, multo fortiori, of posterior contracts. c And still more recently it was repeated, that a bankrupt or insolvent law of any state, which discharges both the person of the debtor and his future acquisitions of property, was not a law impairing the obligation of contracts so far as respects debts contracted subsequent to the passage of such law. But, it was further settled in the same case, that when in the exercise of that power, the states pass beyond their own limits, and the rights of their own citizens, and act upon the rights of citizens of other states, there arises a conflict of sovereign power, and a collision with the judicial powers granted to the United a Ogden v. Sanders, 12 Wheat. 229
b Sturgis v. Crowninshield, 4 Wheat. 192.
c Cook v. Moffat, 5 How. 310.
States, which renders the exercise of such a power incompatible with the rights of other states, and with the constitution of the United States, a so that, insolvent laws of our state, cannot discharge the contracts of citizens of other states, because they have no extra territorial operation, and consequently the tribunal sitting under them, unless in cases where a citizen of such other state becomes a party to the proceeding, has no jurisdiction in the case.
But though the constitution of the United States does not, in terms, grant to the states the power of passing bankrupt laws, nor prohibit them, they may, in the absence of a law of congress, lawfully pass such acts. So too, it is held, that congress, finding a state in possession of such an act, may by an act of their own, prohibit its future exercise entirely, or restrain it, so far, as national policy may require. The constitution itself has restrained it, so far, as to prohibit the passage of any law impairing the obligation of contracts. And though they may, until the power of congress shall be exercised, so to prohibit or restrain the state law, to pass laws concerning bankrupts, yet they cannot, constitutionally introduce into such laws, a clause which discharges the obligations the bankrupt has already entered into. b
The case in which this was held, was the construction of the terms of an act of the legislature of the state of New York entitled, "An act for the benefit of insolvent debtors and their creditors," passed in April, 1811, which contained a provision discharging the debtor from all liability upon debts contracted previous to his discharge, and including such as were contracted previous to the passage of the act, upon his surrendering his property in the manner prescribed by the act. The defendant had obtained a discharge under this act, and was sued upon obligations made before, though payable after the taking effect of the act. He set up this discharge, as a defence to the suit upon the notes. The case received great consideration, and Chief Justice Marshall, expressing the opinion of the court, held the New York statute, so far as it attempted to discharge contracts made prior to the taking effect of the act, to be unconstitutional, because, impairing the obligation of contracts.
a Baldwin v. Hale, 1 Black. 231.
b Sturgis v. Crowninshield, 4 Wheat. 199.