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VOLUME XLVII.
MILLEDGEYHLE, GEORGIA, TUESDAY, MARCH 20, 1806.
NUMBER 12.
K. M . O H ME & SON,
editors and proprietors.
Terms—§3 00 per annum, in Afivanee.
$1 00
3 00
4 5o
3 00
5 OO
3 00
5 00
T a A N a t E X T AO V F. U TIS i S G.
Par square of ton lines,each insertion,
LK(1 Vi- ADVERTISING.
Ordinary's.—Citations for Letters of Ad
ministration, by Administrators. Executors,
(jaardiaus, &c
Application for Letters of Dismission from
Administration —
Application for Letters of Dismission from
Guardianship
Application for leave to sell Laud
N'otico to Debtors and Creditors
Sales of personal or perishable property,
pei square of ten lints -•— — •
Sales of Land, per square of ten lines
Sktrijfs.—Each levy of ten lines, or less,
Mortgage sales of ten lines, or less
All advertisements of sales by Sheriffs
exceeding ten lines, will be charged in pro-
portion.
Tax Collector’s sales, per square
Clerk's.—Foreclosure of Mortgage and
other monthly advertisements, $ 1 (JO per
square of ten lines lor each insertion.
Fora man advertising his wife,inadvdnee, 20 00
Tributes of Respect, Resolutions by So
cieties, Obituaries, &.O., exceediugsiz lines,
l0 l>e charged as transient advertising.
•.■y Sales of Laud, by Administrators, Ex»
editors or Guardians, are required by law to
be held on the first Tuesday in the month, be-
**aen the hours of ten in the forenoon and three
in the afternoon, at the Court-house in the county
in which the property is situated.
Notice of these sales must be given in a public
gazette 40 days previous to the day of sale.
Notices for the sale of personal property must
b3 given in like manner 10 days previous to sale
^ Notices to debtors and creditors of an estate
must also be published 4!) days.
Notice that application will be made to the
Court of Ordinary for leave to sell Land must be
published for two months.
Citations for letters of Administration, Guar
dianship. tSzc., must be published 30 days—for dis
mission from Administration, monthly six months ;
for dismission from Guardianship, 40 days.
Rules for foreclosure of Mortgages must be pub-
Jiihod monthly for four months—for establishing
loot papers, for tl'tc full space of three months—for
compelling titles from Executors or Administra
tors. where bond has been given by the deceased,
the full space of three months.
Publications will always be continued accord
ing to these, the legal requirements, unless other
wise ordered.
VETO OF THE STAY LAW.
1866.i
EXECUTIVE I>Kf ATtTJIKN T,
Milledgeville, March 6,
To the Senate :
Having given serious consideration to “a hill to
b • entitled an act for the relief of the people of
Georgia, and to prevent the ievyand sale of prop
erty under certain circumstances, and within a
limited period, - ’ which originated in your body,
wi;h more than ordinary anxiety, if possible to
concur with the General Assembly in the propriety
of its enactment, 1 am constrained to return it
without approval.
The Constitution cf the United States express
ly ordains that ‘no State shall puss any laic impair
ing the obligation of contracts.”
The appi.cation of this provision to the act un
der consideration involves two enquiries:
First, What is meant by the obligation of a
contract? Secondly, Wftat constitutes an im
pairment of it ?
A proper consideration of the subject requires a
distinction between a contract and its obligation.
ing one. But how, meantime, fares the obliga
tion? The- consolation offered to the- promise,
and repeated to successive generations of his pos
terity, would be, that it flourished in a-greeu old
age, its strength unimpaired by time.
Tho strength of the argument in favor of Stay
laws lies in the'propositicH, that-final process is but
a part of the remedy which must always be with
in the power of the Legislature: otherwise it
would be Impossible to correct errors in jurispru
dence of to improve the system as experience may
develope its defects. The power of the Legisla
ture to modify remedies, even at the cost of de
lay to suitors, then in court, must be couceded ;
but with two qualifications.
First, the intention must be hor.c fide to change
permanently, and to improve thesysiem. Second
ly, this must alwaj’s be done, if possible, so- as
not to affect injuriously antecedent rights.
This act cannot be brought within either of
them. First, it contemplates ueither a^y im
provement nor any permanent change in the ju
dicial system. {Sections 3553 to 3557, and Section
336 of the Revised Code.regulate proceeding after
judgment in suits to enforce contracts. It is obvi-
stay of execution, under it, applied. If separate ( ly tire rights of the judgment creditor affected by
judgments should be obtained in the mouth of Jan- ■ this legislation. If the prohibition quoted from
liary 1807, the one founded on a contract entered j the Constitution does not apply to and prevent
into before the first day of June 1*65, and J speh legislation, I greatly fear it will be a dead let-
tho other on a contract made after the last i ter.
mentioned day, even though they were pass- j CHARLES J. JENKINS,
ed upon considerations equally meritorious, the i Governor,
stay of this law would attach to the former, T bo g enate failed to pass the last named bill
and n^t to tLe latter. I am utterly at a loss to | ov - er t j ie Ooveruor^s veto, by a constitutional ma-
conjecture upon what principle, consistent with J0 , it Jhe bei I5 aays]3 ; aad conse-
equai justice this discrimination is founded. In- qifliat ,y it was not sent to the House. The Senate
deed it would seem that if any discrimination were j £, 63( ./ tbe iirst Iia n.ed bill over the Go vr nor’s. veto,
made, it should be in favor of that class of credi- b a conrtil utibnal majority, years 19, nays 9;
tors, a very large majority of whom have already j b , Jt tbc f)tiie j t0 J pa8! ’ it by a constitutional
been subjected to live of these legislative iujuuc j niljorh the y eas being 64, nays 39. So both
tions, successively enacted, and so linked, as to j b jjj 3 % J re lost*
compose a chain, extending over as may yosre.— I "
1 he termer is ‘‘an agreement to do or not to do a j ous jy 1>c t the intention of the General Assembly
a particular thing.” The latter 13 that which bums | to nia fe e aa y change iu these further than to sus-
the promisor to perform his agreement. W e of- p end them for a time, in the class of cases de-
ten speak of amoral obligation po perform a prom- j 8cr j bqd j a t] ie act. No other course of proceed
ise, the sanction of which is found in a pure and j ; a g. j s substituted—judgments rendered for special
enlightened conscience. But it is evidently not this j purposes are excepted—and none that may here-
which the Constitution was designed to save from j a ft er be rendered on contracts made since the first
impairment, because it is simply impossible for j da> . of j une) 1865, are included in the stay. In
legislative action to change the dictate oi. con- | g a uh cases, therefore, the course of the law will
D R. JOHN GANTT tenders his professional
services to the citizens of Milledgeville and
vicinity. Office that of the late Dr. Fort.
March 6, 1866 10 tf
PUBLIC Xa-fiL'VSTiS,
Ordinances, &-o.
W ILL BE READY for delivery to subscri
bers within five days from the adjourn
ment of the Legislature, a Tamphlet containing,
1st. The new Constitution and public ordinanc
es passed by the late Convention.
2d. Such portion of the “Frcr.dmen’s Code, as
may be adopted by the Legislature.
:id. All other public Acts which may be passed
during the present session.
The.price of the work is two dollars, or three
copies for five dollars. Copies sent by mail post
age paid. The volume will contain matter of
much 'interest to all classes. Persons desiring
the work are requested to send their orders ac
companied by tiie cash, to us at Milledgeville, as
early as possible, so that we may know what
uuniber of conies it may be necessary to publish.
C. J. WELLBORN,
W. H. HUNT.
Milledgeville, March 6, 1S66 10 2t
Citizens! Male and Female:
Arouse yourselves to your duties. One
ot which is to practice economy in mak
ing your purchases.
riBCHAOSZSB. AMD H20HT.
OF OOILTTIS/xBTTS, GkA..,
science regarding any antecedent duly which one
person may owe to another.
We speak, also, of the legal obligation of a
contract, by which is meant the force of law,
compellingits performance or giving an equivalent
after its breach. In arguing the case of Ogden
vs. Sanders, Mr. Webster remarked, “?Ae muni
cipal laic is the jorce of society, employed to com
pel the performance of contracts." This force con
sists of a 11 the means provided by law, to enable the
promisee, without disturbing the peace of society,
to compel the performance, by a reluctant prom
isor, of his engagement. Thus understood it is
clear that the Legislature, if unrestrained, would
be capable of impairing or destroying the obliga
tion ; and it is precisely to guard it, that this pro
hibition was inserted in the Constitution.
T he question then is presented, whether or not
this act against the intendment of the Constitu
tion, impairs the obligation of contracts. It pro
vides that there shall bo no levy or sale of prop
erty of defendants in this State under any execu-
tiQn founded on any judgment, order or decree, of
any court heretofore, or hereafter to be rendered,
upon any contract or liability made or incurred
prior to the 1st of June, 1865, provided the said
defendant shall pay or cause to be paid during
each year one-fourth of the amount of principal
and interest of such execution, or of the debt- or
claim, on which such execution has been or may
hereafter be obtained, so that tho entire indebted
ness, shall be paid iu four years from the first day
of January—the first instalment to be paid by tho
first of January, 1867, and the fourth and last by
the first of Jauuarj', 1870.” Any officer levying
or selling is made liable for a trespass. Here we
remark that the prohibition of the Constitution is
not directed solely’against the destruction of the
obligation. It is not that no State shall pass any
lay destroying the obligation. Wore it so ex
pressed, however impolitic or unjust it might be,
m any supposable case to impair without destroy
ing it, the Constitution could not be interposed as
a barrier to such action. But it is explicitly
against impairment that the prohibition is direct
ed. The intention being negative, not positive—
prohibitory, not mandatory, the lesser interference
be the same as heretofore. Secondly. if the change
were permanent—if it contemplated just such a
stay of execution, under judgments to be obtained,
founded on contracts made since the first day of
June last, the office of sheriff is nevertheless con
tinued, and therefore all judgments founded on
contracts heretofore made, might be executed as
well as in times past, and the obligation of the
contract be unaffected ; but in point of fact the
bill not only affects them, but injuriously discrim
inates against them.
Here, then, is plenary evidence that it is not
one of those great reformatory measures, designed
to improve the judicial system, for the permanent
advantage of the body politic—that in truth it
makes no chango in the system, but onjy with
draws for a time from a certain class of contracts its
obligatory operation. It is a temporary expedi
ent, interposed between the debtor and creditor
for the relief of the former. It postpones for one
year absolutely and for four conditionally the full
performance of all the contracts entered into be
fore the first, of June last, and in my opinion as
flagrantly violates the Constitution as it affected
contracts running to maturity, by postponing the
day of payment one, or four-years, beyond that
fixed by the terms of each.
The course of reasoning adopted, the principles
affirmed, and the rules of construction applied to
this clause o f the Constitution by the Supreme
Ceurt'of the United States in several cases, seem
to me to lead to the conclusion, although in none
of them were the Legislative acts reviewed iden
tically in their provisions with this. These I shall
simply state without quoting from them. They
are Sturges rs. Crowningshield, 4th Wheaton, 122;
Green rs. Biddle, 8th Wheaton, 1; Ogden vs.
Sanders, 12th, Wheaton, 213 ; Bronson rs. Kinzec
i, Howard, 311 ; McCraken rs. Hayward 2; How
ard, 60S.
In these cases, stay laws are, by way of illus
tration, more than once referred to as violating
this clause of the Constitution. In the first, Chief
Justice Marshall, who bore a part iu tho
The elder creditor is tied up and the junior left uu
trameled; nay more, the judgment creditor of five
or more years standing is arrested, whilst to the
simple contract creditor of yesterday, the high
way to full and complete compulsory performance
is left open. It may belaid that whenever a jun
ior execution, not stayed by the proposed law,
shall by levyj and sale cause money to be made,
the older-executions are not rest rained from being
interposed to claim it. But this can scarcely be
intended,for in that event, the law must fail to gi\e
the promised relief. Under any circumstances
this could only occutwhere there were judgments
of both classes again the same debtor, and the sug
gestion therefoie does not rlieve the measure from
the alleged discrimination. Even in those cases
the debtor would be under a strong temptation io
apply his means to the satisfaction of the junior
judgment., reserving for the senior only the an
nual instalment necessary to keep him in fetters, j p ^ e y 9 . and to define the same.
lust of Acts signed by the Governor.
1. An act to consolidate the offices of Secretary
of State and Surveyor General, and to provide sal
aries for the Comptroller General, State Treasurer
and Secretary of State and State Librarian.
2. An act to make free penons of color compe
tent witnesses in the Courts of this State in cer-
| tain cases therein mentioned, and to authorize the
j making and declaring the force of affidavits by
I them in certain cases.
j 3. An act to change the place of holding the Su-
| perior and Inferior Courts, and Court6 of Ordina-
I ry of Bartow county, until a Court House is built.
4. An act to authorize an advance of payment were nfemme sole.
to be made to the public printer of the present
session of the Legislature.
ft. Ari act to amend the several acts of force in
relation to the city of West Point, in Troup coun
ty, and to grant Mayor and Aldermen additional
52. To legalize the acts of John C. Wells, and ail
other persons in this State acting r.s Ordinaries
under commission from his Excellency James
Johnson, Provisional Governor.
53. To authorize the Justices of the Inferior
Courts of the countj- of Heard to levy aud collect
a tax for certain purposes.
54. To amend an act incorporating the town of
Weifton, Webster county, Georgia, passed March
6th, 1856.
55. To change the time of holding the Courts of
Ordinary of this State,
56. To alter and amend paragraph 1232, chap.
2, of the Revised Code of Georgia.
57. To authorize attorneys and solicitors of this
State to argue their causes in the Supreme Court
of Georgia by written argument and for other pur
poses.
68. To fix the times of holding the Supreme
Coarts of the State, and for o-her purposes.
59. To amend the charter of the Macon and Wes
tern Railroad, assented to December 14. 1563.—
Also, to amend the charter of the Macon and Wes
tern Railroad, assented to December 14, 1863, as
sented to March 19, 1861.
60. To authorize Artimesle A. E. Jones, wife of
James U. Jones, of Bibb county, to receive any
property 6he is or may hereafter be entitled to by
inheritance or otherwise, when the same is not
limited over in the same manner as though she
and thus the discrimination will still operate inju
riously.
I take no pleasure in the performance of this du
ty. Always reluctant to disagree with the Gener
al Assembly, I can truly say this disagreement is
painful in the extreme. I have abundant sympa
thy for the. suffering people of Georgia, and in the
desire of the General Assembly to alleviate their
sufferings. But on entering this office I took at
the threshold, iu presence of you all, a solemn oath
to preserve, protect and defend the Constitution
of the United States, and of the State of Georgia:
and this I must de, as I, not as others understand
those instruments. If I doubted I would give the
measure the benefit of the doubt and leave its con
stitutionality to the courts; but, not doubting. I
must dissent as I regard my oath. Upon such sub
jects, men equally earnest iu search of truth, and
fair, in their habits ef thought, are prone lo differ.
Whenever such a difference occurs, it becomes
each party to extend to the other the meed of up
right intention. I have done what I conceive to be
my duty, and if after re-consideration, which I re
spectfully invite, a constitutional majority of the
General Assembly should adhere to the measure,
1 shall indulge the hope that no detriment will
come to the state, either from its seemingly une
qual practical operation or from its imputed viola
tion of the fundamental law.
(Signed) Chalks J. Jkkkins,
Governor.
6. An act to incorporate tho Richmond Fire
Company, No. 7, and tor other purposes.
7. An act to extend the corporate limits ef the
town of Forsyth, in Monroe county, Ga., and to
increase the powers of Commissioners thereof as
to taxes aud the enforcement of fines and penalties.
8. An act to appoint certain persons herein
named, Trustees of the Knoxville Camp Ground _ dolph county, a city : to extend the limits of said
Have opened a BRANCH STORE,
at tho Northern extremity of the Mil-
ledgevitic Hotel building—one store South
tf Newell 1 s Hall building, in which they
hure on hand now, and will receive almost
daily, both from the Northern market and
their Columbus store, everything usually
kept in their line, which consists princi
pally of DRY GOODS,
CLOTHING,
boots,
SHOES,
HATS,
FURNISHING
GOODS, ?
R1ECE GOODS,
FANCY
GOODS,
NOTIONS.
STATIONRY, fyc. $c.,
We respectfully announce to the public that we
positively sell-our goods At the rcry LOIVKST
PRICES, as we have adopted the safe plan of
"Small Profits and Quick Sales.”
Give us atryal and you will be fairly aud lion
orably dealt with.
FISCHACIIER &. HECHT.
Mi.ilcdgeviille, Ga.. Feb. 20.8 tf
Guar. p. MqCalla. M. T. McGregor.
M’OALLA CO.,
sommzmE
Particular attention given lo the Sale und pur-
«hase of COTTON and COUNTRY PRODUCE,
liberal Advances made.
°* I vax winkle range Corner of Jackson
and Ellis Streets,
AUGUSTA, G-AM.
Storage for Cotton-
August 8 ,.1665 32 ly
Nff arrtecL
A SITUATION as Assistant teacher in a eol-
“-A. lege or good school, by a young lauy. For
Particulars address.
R. G. E. Acwortli, Cebb co. Ga.
November 21,1865 57 tf
proceedings for the adoption of the Constitu
tion expresses the opinion that the passing of
such laws by the States was one of tbe chief cans-
is expressed, because being included in the great-j eS which induced the insertion of this clause.—
er, its prevention piovenrs both, lienee it ap- Judge Parson, at page 793, of tbe 2d volume of
pears that something more was intended than to j his authoritative treatise on contracts, affirm the
proposition as established by authority, that “an
exemption of property from attachment (by which
is meant levy)-or a subjection of it to a stay law
or appyaismeut law, impairs the obligation of the
contract." He adds: ‘ Such a statute can be en
forced only as to contracts made subsequently to
the law.”
There are, I concede, eases supporting the op
posite conclusion, but I think they are sustained
neither by the weight of authority nor by the
force of logic.
Our own constitution contains a clanss similar
to that quoted from the Constitution of the Unit
ed States. But it is not alone, this duplicated pro
hibition which, iu my opinion, precludes legisla
tion of this character. The first clause of the first
section of the second article of tire constitution of
Georgia, js in the.se words : “The Legislative, Ex
ecutive and judicial departments shali be confided
to a separate body of magistracy. No person, or
collection of persons.icing of one department, shall ex
ercise any power properly attached to either of the
others, except in cases herein expressly excepted."—
It is to the latter sentence I particularly refer.—
The investigation aud determination of private
rights; the enforcement of contracts betw-een in
dividuals when one of tire parties refuses compli
ance, are cleaiy powers properly belonging to the
judiciai.department. Their exercise is invoked by
suit in court, which, being instituted, is properly
under the control of that department, from the fil
ing of the petition to the return of final process,
exeentued; w hen, for the purpose of preventing
wrong or oppresion, or of doing full and complete
justice in any case, it becomes necessary to arrest
keep the obligation alive; which is all that can
be claimed for a stay law.
Let it be borne in mind, that the obligation of
a contract is the force cf law, compelling its per
formance, or giving satisfaction for its breach.—
This force has a two-fold operation, first, it acts
judicially, whereby the oxisteneo of the contract,
■its breach and the mode of enforcement are de
termined, all of which are expressed in the judg
ment. Secondly, it acts ministerially, wherein,
rni'Per command in writing, an officer of law, eith
er transfers certain specific property from the
possession of the promisor to that of the promisee,
or converts into money, in a .mode prescribed,
such portion of the promisor’s property as will
satisfy the judgment, and delivers it to the pos-
sessee. This done, the ouligntion cf the contract
is consummated—its performance is enforced.
But if, when the judgment shall have been ren
dered, and the next step according to the law which
creates the obligation, :6 to issue this w-ritten au
thority (called an execution,) without which the
judgment would be vaiuless, the State shall pass
a law forbidding the issuance for one year; or, if,
after it shall have been issued, tho proper officer
is forbidden to execute it, within a year, what ef
fect has this legislation upon the obligation ? We
are told the effect is to suspend it, leaving its vitality
untouched. Turn, by the terms of the law, vitality
remains, but docs this satisfy the Constitution ?
Is tiiore no diminution, no weakening, no impair
ment of the force of the law compelling perform
ance 7
Lexicographers tell us that to impair, ts to “di
minish—to injure—to lesson m value." Suppose A
another against D, at the same time , each founded
on contract, aud both according to the general law,
whence the obligation of contracts spring., capa
ble of immediate execution. Then suppose thp
Legislature to intervene, and enact that the form
er shall not be executed within one year, leaving
the latter untouched, would there then be no dif
ference in the relative strength of the two obliga
tions 7 A man in paralysis has vitality as positive
as has he in good health ; yet it is impaired. So
A’s judgment has an obligation, but is paralyzed.
to obtain a judgment agRinst B—and C to obtain [ the proceeding; whether before r>r after judgment.
' “ ’ | this can only be done by the writ of injuntion, and
that issues properly out of Chancery, which ap
pertains. exclusively to the judicial department.
\yhat are the rights upon which the bill under con
sideration acts ? 'Thev are those which have been
asserted by suits in courts of justice t have been
there investigated and adjudicated, and which
those courts are proceeding to enforce by tnoir final
processes, called executions. What action does
this bill propose upon them 7 It does not,*indeed,
set. them aside—annul them—but it suspends ac-
weahtned," “diminished," by the temporary loss t:on under them for a specified time.^ V\ hat is this
of its active quality, and, therefore impaired.
In executory contracts, time is always an im
portant element. It will probably be conceded
that it would be unconstitutional for the General
Assembly to enact that no more promissory notes
heretofore made, and to mature on the first day
of January, J8G7, shali be Considered due, and
payable before the first day of January, 1868.—
If this be so it is difficult to perceive how the con
stitutionality of this act can be obtained. If the day
of payment may not be postponed bejore maturity
by legislative action, it would seem a “fortiori."
that it may not be after maturity ; or, rather, that
the contract mky not be thrown back into imma
turity, and a new day of payment appointed by
such action. Pursuing the line of argument, the
right of tbe promissee does not lose its character
of contract by the institution of a suit, nor by the
rendition of a judgment to enforce it. That char
acter abides, and to it tbe constitutional guaranty
adheres u*til it is extinguished by performance or
smothered by a statute of reposo. Indeed, this
act specially refers to constracts in judgment and
to their dates. Hence I conclude the Legislature
has no more power to appoint a new and distant
day of payment after suit commenced or judg
ment rendered, than before. In all other respects
the promisee’s condition is considered better af
ter judgment ;• why worse in this ? Before judg
ment his will is impoteht to cdfnpel immediate
performance of the contract. Tho. judgment
makes that will the motive power ot the ob
ligation, for by it the execution—the final
process—may be put in action. But, by leg
islation of this character, that .motive power
is suspended—-temporarily abstracted rr ® m
tbe obligation. Perpettial injunction would de
stroy tbe obligation, quo ad the action of this State;
and I cannot resist the conclusion that tempora
ry injunction would impair it.
Again, the judgment and execution which are
intended to be the consummation, or end of the
obligation, are lawful subject* of traffic, are sale
able commodities. It is indisputable that the pos
session, and exeTcise by the Legislation of the
power of suspending their operation, would “les
sen their value," as much; and this brings such
legislation within another definition ot- impair
ment, viz it “lessens the value.”
If one Legislature miy postpone for a year, each
subsequent gne may do the same.
Already have the judgments affected by this
act been suspended five yoars by such action.
Upon principle. tUese successive postponements
might as well be continued an hundred years or
through all time.
The hundredth would be as valid as any preced-
suspeusion but an injunction of a judicial proceed
ing? Tho form.of the writ used in the depart
ment to which the power properly pelongs, is not
observed, but the precise end is attained—the in
junction is as effectually imposed as if a writ in due
form had emanated from the legitimate source.
-Let us look a little more iu detail into this mat.
ter. A writ called an execution issued from the
Inferior Court of Baldwin county directed to the
sheriff, commanding him to make by levy and sale
of the property of C D one hundred dollars, which
A B lately in that court recovered of him, and
further that he return that writ into court at the
next term, w hich means in iaw, that he return it
executed. If the sheriff do not make tho money
as required, he may at the return term of the writ
be ruled aud compelled to pay it himself, unless
ha can show good cause for his failure. This is
the conre of the law, and this its end. But sup
pose when so called on he should exhibit a writ,
sued out of the Chancery side mf the Superior
Court of Baldwin countj, at the suit of G D, com
manding him to desist from levy and sale, under
that particular execution, ninil the further irdrr of
the court; he stands justified because he is enjoin
ed. One branch of the judicial department, arm
ed by law with the power, has arrested another,
and no violence is done to the constitution. But
Suppose instead of exhibiting a writ of injunction
from the Superior Court, he should exhibit an act
of tbe Legislature forbidding him to execute with
in a year, nuyfifa issued by any court. If he be
excused, on whfit ground? Clearly that he was-
enjoined. That the judicial injunction, in the one
case wm in the exercise of “a power property at-
tached"4o tbe judicial department cannot pssibly
be denied. 'Then-huw can it be maintaineddhat
the imposition of the legislative injunction, in the
other case, would be conformable to the provisions
of the Constitution I have quoted ? ' Isii not’man-
ifest that Such legislation produced. flii'ee* collis
ion between the departments T .The.maudaSc is
sued by tbe juliciai department w*a in strict con
formity with the laws of the State. Without repeal
ing those laws, without permanently curtAilibg the
po"wers of the courts,- tao lagislavive department
simply intervenes and forbids th* pffmtterial offi
cer obeying the judicial mandate. It, was dor the
express purpose of preventing such conflict'this
provision was inserted in the (Joiis&tatKra.
Thdro is ainOtber objection to the bill which I
cannot pass over in silent e. 'It classifies contracts
and betw<^u.tt»e olases, iojnriqBsly
to one of them, or rather to the parties interested
in their enforcement. Contracts prior to the Erst
day of June! 1865, constitute one class* those made
subsequently, another. To the former only is the j
EOT. JEX&l.fS’ VETO,
Of a Bill to be Entitled "An Act to Allow the
Redemption of Real Estate sold under Execu
tion within a (Specified Time,” and of a Bill to
be Entitled “An Act to Exempt from Levy and
Sale Certain Property of every Debtor in this
State, and for other Purposes.”
Executive Dzpartmevt, ?
Milledgeville, March 13, 1866. i
To the Senate:
I regret the necessity of interposing my dissent
to another Act of the General Assembly which
originated in your body, aud which I herewith re
turn.
It is entitled “an act to allow the redemption of
refil estate sold under execution, within a speci
fied time.” •
The 1st section provides that the purchaser of
the property sold, shall be held, and taken as the
Trustee of the Delendant in execution, for the
space of two years alter the sale.
The 2nd section reserves to the Defendant the
right to redeem the property at any time within
two years, by paying the purchase money, with
interest at ten per cent, per annum.
The 4th section allows any creditor of the Defend
ant to raise the bid of the purchaser and take ali the
right acquired by him, within sixty days after
the public sale, if net previously redeemed, un
less the purchaser will pay an additional sum
equal to the difference between his bid at the
sale, and the subsequent bid of the creditor. And
this operation may be repeated any number of
times within the sixty days.
The 5th section reserves to the Defendant the
right of occupancy during the two years, ailowed
for redemption, without paying any considera
tion therefor, to any person whomsoever.
Should he redeem at the end of two years, he
pays interest on tho money. But failing te re
deem, he pays nothing as interest—nothing for
the use and occupation of the premisas.
That it is in the power o£ the General Assembly
lo pass such an Act, entirely prospective iu its op
eration, I do not question, however fatal the
legislation might be to the credikof men having
moderate possession*. But this act is not so lim
ited in its operation. By its very terms it will ap
ply “whenever any real estate shall hereafter be
sold in this State, under any execution, order or
decree of any Court,” etc.
This clearly includes sales under judgments
rendered before tho passage of this Act. It mod
ifies tho lien of such judgments after it was at-j
Cached to the property, and is, to that extent, re
troactive. By section 3499 of the revised Code,
judgments "bind all the property- of thejiefend-
sut, both real and personal, from the date of such
judgments.” Tbe universal acceptation of this
clause is tliat judgments bind, not only every ar
ticle of tho defendant’* property, but his entire
interest in. eachai tide. 'This is the lien, nothing
less. A sale under it, totally extinguishes the
defendant’s title, as much so as tho most-absolute
sale he . could make ill the absence of any judg
ment.
Tho manifest effect of the Act nnder considera
tion is to prevent tbe sale under such a judgment
of the defendant’s entire interest iu real estate.—
This it does iu several particulars.
1st. It reserves to him the right of redemption.
2nd. It reserves to him the right of occupancy
against all the worid, for two years rent free, thus
carrying out, out of the entire interest, a legal es
tate for years-
3rd. It keeps the Sheriff’s sale open for sixty*
days, after the bidding has commenced, during all
which time he may receive bids.
It surely needs uo argument to prove that prop
erty exposed to sale under such incumbrances
would yield a much lower price than if sold free
from them. Hence the conclusion is, that the Act
imposing these iucuiubrances upon a sale uuder a
judgment affects injuriously the prior lieu of that
judgment, and of course affects injuriously the
right of the plaintiff in execution, in whom that li
eu had vested before the passage of this Act.—
This is fetroactive legislation.
If it be asked why ihe Legislature may nut do
this, in the plenitude of their discretion, the answer
is brief and simple. The 14th clause ot this 1st i . ,
... .. . ■ ., ^ , .. 43. An act to amend the charter of tue town of
article ot the Constitution contains these emphatic I ,
words: “retroactive legislation injuriously affecting j . ,, .
the right of the cituen is prohibited. ’ This does not I . 44 f A £ ac * to ™ eC(3 t0 the 39{*>th sec-
mean law* punishing acts previously committed, An \ ct ° t of^ r aud amond 8ectiooa 459G and
4597 of the Cod-.
46. An act to make the ov/mars aud possessors
of mischit'vious dogs, dr persons having charge of
tiie same liable for damages and for other purpo
ses.
47. An act for the relief of the Muscogee Build
ing aud Loan Association, and the Columbus
Building and Loan Associaliou.
48. An actio alter the 2d and 3d Cougfesftfoo-
al Districts, so far as relates to tbe county of
Schley.
in.Crawford county, and to vest certain powers in
them.
9. An act to chango the place of holding the
Justices Court in the 97th district, Georgia Militia,
Washington county.
10. An act to suspend the operation of section
1528 of the Code ot Georgia.
11. An act to alter and amend the 10th para
graph, of the 2d article, part 1st, title 16th, chap
ter 5th, of the Code.
12. An act to change the line between Worth
and Irwin counties, so as to include No. 30, sec
ond district of Irwin in Worth county.
13. An act to repeal an act assented to on the
21st day of December, 1857, requiring the Court
of Ordinary of Tattnall connty to be held on the
2d Monday in October, instead of the 1st Monday,
as provided for by iaw.
14. An act to authorize and require the Treasu
rer of this State to make certain advances and for
other purposes.
15. An act to establish the seal to be used in
the office of the Secretary cf State.
16. An act to change the time when the Justices
of the Inferior Court must draw juries for the Su
perior Courts.
17. Au act to amend the charter of the City of
Rome by authorizing the Mayor and City Coun
cil to raise the fee for retail license, and to prohibit
the erection of wooden buildings.
18. Auact to authorize and empower the Judg
es of the Superior Courts of this State to hold spe
cial terms for the trial of criminals and for other
purposes.
19. An act for tbe relief of securities on recogni
sances hi certain cases.
20. Au act to confer certain powers on the com
missioners of Louisville.
21. An act to permit certain persons to build
stock gaps on the Western and Atlantic Railroad.
22. An act to amand an act assented to March
9, 1865, entitle An act to extend the civil jurisdic
tion of the city courts of Augusta, to abolish the
tax or court Yee, and to make the fees of tho offi
cers of that court the same as in the Superior courts
of this State.
23 An act to make ail suits, writs and process
es, which were returnable to the Houston Superi
or Oburt as of October term, i865, returnable to
the February term of said Superior Court, to be
held in the year 1866.
21. An act to repeal an act entitled, an act,
to incorporate the city of Americus, and to alter
and amend an act to incorporate the town of. Amer
icas, iri the county of Sumter, and for other pur
poses, assented to December 17, 1861.
25. An act to prevent the spread of small pox in
this State.
26. Au act to enable the Superior Court of the
several counties in this State to raise a fund to
pay off th» indebtedness of the several counties
in this State, aud for other purposes.
27. An act to legalize the issue of bills and
bonds by the Mayor and Council of tho city of
Atlanta.
28. An act to authorize the Phoenix Loan and
Building Association, aud the Union- Loan and
Building Association of Atlanta, to resnme and
carry on, or close said Associations.
29. An act to change the line between the conn-
ties of Early and Milier.
30. An act to carry into effect a portion of the
third paragraph ot the first section of the fonrth
article of the Constitution, and to provide the mode
of carrying eases from the City Coarts of the cities
of Savannah and Augusta, and snch other like
Courts as may hereafter be established, and for
other purposes.
31. Au act to amend section 4564 of the Code
of Georgia.
32. Am act to change and fix the time of hold
ing the January term of the Courts of Ordinary
in this State, from the Second Monday in said
month, as now fixed by law, to the first Monday
in January in each and every year.
33. An act to amend aud alter section 4321, of
the Code.
34. An act to amend the act incorporating the
town of Quitman iu Brooks Co., and to confer
additional powers upon the commissioners, and to
prescribe qualifications of officers and voters of
the town.
35. An act to prescribe the oath to be administered
to voters for members cf the Gene'l Assembly, Gov
ernor of this State, members of Congress, Judg
es o! the Superior Courts, States Attorney, Solici
tors General and County officers.
36. An act to alter and amend an act, entitled
an act to incorporate the town of Dawson, in the
county of Terrell.
37. An act for the relief of the Savannah Mutu
al Loan Association,
38. An act to authorize the Justices of the Infe
rior Court of Elbert, county, to levy and collect a
tax for county purposes.
39. An act to authorize tbe sale of the Exile
Camp in Terrell Co.
40. An act to increase the salary of the Super
intendent of the Western &. Atlantic R. R.
41. Au act to amend an act, entitled an act to
incorporate the Georgia and Alabama R. R. Com
pany, and to grant certain powers and privileges
to the same,
42. An act to fix thp salarifs of the Judges, aud
certain other officers of the State.
61. To repeal an act assented to December 10th,
1803, incorporating the town of Etberton, and to
re-incorporate said town: aud to give the town
council cf said town certain powers hereinafter
named.
62. To amend sections 3981 and 3965 of the
Code.
63. To incorpoiate the town of Smithville In
Lee county, and to confer other po wers on tire
same.
64. To change, define and make permanent the
county line between Irwin aud Wilcox counties.
65. To constitute the town of Cuthbert, Raii-
city, and for other purposes ; assented to Decem
ber 19, H>59.
66. To change the timo cf holding the Superior
Courts of Polk, Floyd, Paulding and Campbell
counties, of the Tallapoosa circuit.
67. To authorize the Inferior Court of Camden
county to regulate and prescribe the rates of fer
riage in said county.
68. To provide for the payment of officers presid
ing at the polls on elections in Taliaierro county,
and for other purposes therein mentioned.
69. For the relief of Arthur Hutchinson, of the
eounty of Campbell, administrator on the estate of
Benjamine G. Parker, deceased, against a tax fi fa ■
issued by the tax collector ofthe county of Clinch.
70. For tho relief of Terry L. Cox, a convict in
the Penitentiary.
71. To relieve certain persons therein named
from jury duty.
72. For the relief of Isaac Hardeman, of Jones
county.
73. To reduce the bond of the Sheriff of Forsyth
county.
74. To incorporate the Chattahoochee Mining
Company
75. To chango the line between the counties of
Lee and Terrell; to add a portion of Lee to Ter
rell, and for other purposes.
76. To authorize the Justices cf thee Infrior
Court of Screven to levy and collect a tax for the
support of th# widows and orphans of deceased or
disabled soldiers of said county.
_ 77, To declare valid all trie official acts of the
civil officers, both principals aud deputies, of this
State, whether said r.ffieers have been pardoned
by tbe President of the United States or not.
78. lo increase tbe per diem pay of teachers
entitled to the benefit of the poor school fund of
this State, assented to March the 3d, 1865, and
for other purposes.
79. To amend the 6tb. 8th and ] 1th sections of
an act incorporating the town of Georgetown,
Quitman county, and to add additional sections
thereto.
80. To extend the time in relation to grants on
head rights, so as to extend the time for granting
the same until the 25th of December. 1«66, aud to
authorize the Secretary of State to issue grants to
ali surveys now in office.
81. To inenrpon^e the town of Steadman, in
the county of Newton, and to confer tbe privilege
of electing commissioners, with certain rights and
powers therein enumerated.
82. To authorize the appointment- of vendure
masters in ail the incorporated towns and cities of
this State.
83. To amend seel ion 3320 of the Code.
84. For the relief of Martha A. Lester of tbecoun-
ty of Fulton.
85. To amend the charter and corporate laws of
the city of Milledgeville as to tbe mode of electing
Aldermen assented to March 7th, 1865.
86. To authorize the use of the water power on
the shoal and falls on the Reserve at Indian Sprign,
with the privilege of building saw and grist mills
thereon.
87. To perfect service against Express Comna-
nies.
88. To amend sections 1775 and 1776 ofthe new
Code of Georgia, relative to orphans.
89. lo authorize the Justices of the Inferior
Court of Bartow county, to settle or compromise
tho Bonds of said county that are now due and
unpaid, and to issue new bonus tor the same. •
90. To amend the act incorporating the town of
Blackshear in Pierce county.
91. To repeal an act to authorize the trustees
of the Glynn county Academv to lease or sell the
Academy.
92. lo authorize the Justices of the Inferior
Coort of the county of Early, to levy and collect an
extra tax to pay for provisions heretofore nur-
chased by them for the poor of said county and for
the use of disabled soldiers and their famalies.
93. To change the name of she Milledgeville
Rai 1 road Company, and for other purposes.
such are called “expost facto” laws, and are also
prohibited by the same clause ; but the object, in
extending the prohibition to ‘ retroactive legisla
tion" was to protect private rights already vested.
I also return without approval, because repug
nant to-the same clause ofthd Constitution ofthe
Seats ot Georgia, a Bill to be entitled “An Act to
exempt from levy and - sale certain ^property of
every debtor in this Bute, and far other purposes.”
This Act, iiko the other affects injuriously to plain-
tiFsin-scscatiun, the liens cf judgment obtained, I
before its passage, upon the exempted property. 49. 'An act for the relief of all-persons who were
These )iens are vested rights, as already explain- j bona fide soldiers ot the army of the : late'Confed'
ed. To the extent of such judgments and their i erate States, fbr acts done ot committed under an
liens, it is retroactive. And therefore; it is within i order pr orders from any officer of the same ; also,
the-prohibition of clause 14 of the 1st a: tide ofthe to relieve officers for any act done under orders
Constitution. ! from a'su perior-officer.
Tho difference between the two A ts is only f 50. Au act to authorise the Inferior Court of the
this* The first, herein mentioned, divests the lien ! county of Lumpkin, Jr. levy extra tax For the pnr-
of j*dg4iq*>t* previously obtained, upon a porteal pose of ■building of a' Jail upon the rocommeiida-
intefest; in ail the property ofthe debtor; the s«c-1 tion of the Grand Jury Of said county,
ond divests it entirely as to a portion of his proper- i 51. Ati act to provide for the election of atown
ty. Taking -the two into connection, it is easy council the town of IJingoFd. in Catoosa county
enough to perceive how groatiy aud how injurious in certain cases. ✓
94. To amend an act to incorporate in the State
of Georgia, an Insurance Company to be called
the “Great Southern Insurance Comnanv ” assent
ed to Dec. 17, 1861.
95. To incorporate the town of Wrightsville in
Johnson county, and appoint commissioners for
the same.
96. To repeal an act, entitled an act, to better
regulate the liquor traffic in the counties of Talia
ferro, Greene, Washington aud Henry, so far as
said act relates to Taliaferro co.
97. To amend an act to incorporate the Skida-
waj bhell Road Company, and for other purposes.
98. To authorize the inferior Court of Twiggs
county, to borrow money to pay the indebted
ness of said county.
99. To amend the charter of the Dalton and
Jiickeonviile R&iiroad Company, and acts passed
in relation to the same.
100. To incorporate the Atlanta Street Railroad
Company.
101. To alter the road laws of this State and to
amend the 585, 588, 594, 602 and 604 sections of
the Code.
102. To define certain acta of trespass and make
the same penal.
103. To amend an act incorporate cr the Etowah
and Auraria Hydraulic Hose Mining Company.
104. To amend an act incorporating the Mechau-
ics having Association ofthe city of Columbus.
105. To exempt from road and jury duty Pro
fessors of Colleges and teachers of public or coun
ty schools.
To amend the 4613 section ofthe Code.
107. To ameod the 349 section of the Code.
108. To amend fbe 4391 section of the Code.
109. To^ change' the time of holding terms of
the Superior Court of Muscogee connty.
MO. For the relief R. L. Hayne s and others, of
Milton county, securities of B. T. Handly, who
was indicted nnder the name of Thomas Handley
at tbeMnrch term of the Superior Conn IsGRof
said county of Miltou for the offience of robbing.
IM. Allowing the redemption of lands forfeited
or sold for taxes dne State or anv countv or city
thereof, by paying the taxefs of each, and The legal
rate of interest per annum thereon together with
^oets which may have occurred.
112, To incorporate the Empire State Manufac-
turing Company, Newton connty.
113. To alter and amend the first number of
section 1954th article, part 2d, title 3d, chanter
2d, ofthe Code. *
•-H4. To incorporate the McClusky Gold Mining
Company.
M5.’To change the name ofthe Confederate
Fire and Insurance Company, and to make more
definite the liabilities of the stockholders.