Newspaper Page Text
VOLUME XXXVI.]
MILLEDGEVILLE, GEORG I A, TUESDAY, JUNE 26, I860.
HU9BER 47.
Car XT M ENT:
OF
EX. GOV. JOSEPH E. BROWN.
BEFORE THE
SUPREME COURT OF GEORGIA.
AT MU.LEDGEVILLE, Jl'NS 13th., 18Gfi,
OX THE CONSTlTUTIUNAL!TY OF THE STAY LAW,
PASSED BY THE
LEGISLATURE OF GEORGIA,
AT ITS LATE SESSION.
( Continued.)
In Sfcurges rs. Crownshields 4 "Wheaton 200,201, Chief
Justice Marshall says :
The distinction between the obligation of a contract and
the remedy given by the legislature to enlurce that obliga
tion has been taken at Bar and exists in the nature of things.
Without impairing the obligation of the contract the rem
edy may certainly be modilied as the wisdom of the
nation shall direct.
I next invite your attention to the language of Chief
Justice Taney delivering the opinion ot the .Supreme Court
of the U. S. in the case of Bronson rs. Kinzee et nl—1
Howards Reps. 3i5—Hi. In this case the Supreme Court
set aside a certain statute of Illinois as unconstitutional,
because it impaired the obligation ot contracts. The
statute declared that the equitable estate of the mortgagor
should not be extinguished, for twelve months alter a sale
under a decree in Chancery, and that Judgment creditors
might redeem in fifteen months; and it prevented any sale
ever being made until two thirds of the amount at which
the property had been valued by appraisers, should be bid
for it; with other provisions, which 1 need not here men
tion. The Chief Justice puts the decision on the express
ground that these statutes did not act merely on the reme
dy, but directly upon the contract itsself; that they en
grafted new conditions upon it, that they grve a niw estate
which did not before exist, to the judgment creditor to
continue for fifteen months—that they gave both mortga
gor and mortgagee an equitable estate, to which neither
would have been entitled under the original contract—that
they deprived the party of the right to ioreclose his
mortgage, and imposed upon him conditions which would
frequently’ render any sale altogether impossible. And here
as well as in the creation of a new estate was a strong point
in the case, that the act might destroy the right by an in
definite postponement of the remedy, as the property might
never bring two thirds of its appraised value. Upon ,the
subject of statutes operating on the remedy the Chief Jus
tice says : If the laws of the .State passed afterwards bad
do r .e nothing more than change the remedy upon contracts of
this description, they would be liable to no Constitutional
objection. For undoubtedly a State may regulate at pleas
ure the modes of proceeding in its Courts, in relation to
past contracts as well as future. It may for example short
en the peiiod 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 the agriculturalists,
or the tools of the mechanic, or articles of necessity in house
hold furniture, shall, like wearing apparel, not be liable to
execution on judgments. Regulations of this description
have always been considered in every’ civilized community 7 ,
as properly belonging to the remedy, to be exercised or not
by any sovereignty according to its own views of policy
and humanity. * * * And although a new reme
dy may be deemed less convenient than the old one, and
may in some degree render the recovery of debts more tar
dy and difficult, yet it will not follow that the law is uncon
stitutional.
Mr. Justice McLean delivered an able dissenting opinion
in which he sustains the Illinois Statute. 1 quote from
him the following: “ Every contract is entered into with
a supposed knowledge by the parties that the law-making
power may 7 modify the remedy. And this it may do at its
discretion, so far as its acts only on the remedy. It may reg
ulate the mode in which process shall beissuad and served,
how the pleadings shall be filed, and at what tiniejudge-
ments shall or may be entered. And it may also regulate
final process. It may'require that the personal property of
the defendant shall be levied on and sold before land shall
be taken in execution. It may say what notice shall be
given on the sale of real estate on execution, and also re
quire that it shall sell for one-half or two-thirds of its value.
A valuation law, in those States where it has been adopted,
has been found salutary in guarding the rights of debtor and
creditor.”
I next invite the attention of the Court to the language
of Mr. Justice Story in his commentaries on the Constitu
tion, section 13S5, which is as follows : “ Although there
is a distinction between the obligation of a contract and the
remedy upon it; yet if there are certain remedies existing at
the time-when it is made, all of which are afterwards wholly
extinguished by new laws, so that there remain no means oi
enforcing the obligation such an abolition of all remedies ope
rating in presenti is also an impairing of the obligation of
such Contract. But every change and modification of the
remedy does not involve such a consequence. No one will
doubt that the Legislature may vary the nature and extent of
remedies. So always that some substantive remedy be in fact
left. Nor can it be doubted that the legislature may pre
scribe the times and modes in which remedies may be pur
sued, and bar suits not brought within such periods and not
pursued in such modes."
Mr. Justice Johnson in the case already cited, in 12
Wheaton, on page 285, remarks: “The law of the con
tract remains the same everywhere, and it will be the same 7
in every tribunal, but the remedy necessarily varies, and
with it*the effect of the Constitutional pledge, which can
only have relation to the laWs of distributive justice known
to the policy of each Stats severally.” And on page 286 :
“But to assign to contracts universally a literal purport,
and to exact for them a rigid literal fiullillment, could not
have been the intent of the Constitution. It is repelled by
an hundred examples. Societies exercise a positive control
as well over the inception, construction, and fulfillment of
contracts, as over the form and measure of tlje remedy to en
force them. As instances of the first take the.,pontract im
puted to the drawer of a bill or indorser of a uote with its
modifications—the deviation of the law from the literal con
tract of the parties to a penal bond, a mortgage, policy of
insurance, bottomry bond, and various others that might be
enumerated. And for instances of discretion exercised in ap
plying the remedy take the term for which executors are
exempt from suit—the exemption of numbers of the Legis
lature, of Judges, of persons attending Courts, or going to
elections, the preference given in the marshalling of assets ;
sales on credit for a present debt, shutting of Courts alto
gether agair.st gaming debts, and usurious ccmtiacts, and
above all acts of limitation. *
tors to the aid of the public arm for the reeovery of con
tracts, is not absolute and unlimited; but may be modified
by the necessities or policy of societies.” And on page 291:
* There is a very striking illustration of this principle (that
parties are not held to literal performance) to be found in
many instances in the books. I mean those cases in which
parties are released from their contracts by a declaration oj
war: or when laws are passed rendering that unlawful even
incidentally, which was lawful at the time of the contract.
It is therefore far from being true as a general proposition
that a government necessarily violates the obligation of a
contract which it puts an end to, without peiformance.”—
This learned an able Judge, on page 283, uses the following
wise and judicious remarks, which could not have been
more applicablo to the present state of things had they been
intended for this very case: “For it is among the duties
of society to enforce the rights of humanity, and both the
debtor and the society have their interest in the adtninistra
tion of justice, and in the general good—interests which
must not be swallowed up and lost sig'.it of, while yielding
attention to the claim of the creditor. The debtor may
plead the visitations of Providence, and the society has an
interest in preserving every member of the community from
despondency ; in relieving him from a hopeless state of pros
tration in which he would be useless to himself, his family,
and the community. When that state of things has arrived
in which the community has fairly and fully discharged its
duties to the creditor, and in which pursuing the debtor any
longer would destroy the otie, without ban filing the other;
must always be a question to be determined by the common
guardian of the rights of both.”
Take another instance of the power of the Legislature
over the remedy, which is found in our recording laws. Jn
Jackson vs. Lamphire, 3, Peters, 260, the Supreme Court
held that “the Legislature may pass a recording act by
which an elder grantee may be postponed to a younger, if
tfie prior deed is not reeorded within -the limited time
whether the deed is dated before or after the passage of the
act, thus rendering the prior deed fraudulent and void as
against a subsequent purchaser.” Tills presents the power
of the Legislature over the remedy in a very strong light.
A purchases a lot of land from B, pays for it, and takes a
deed. Here is a legal and valid contract, and the rights ofA
have vested, and the land is his both in law and equity.—
That the deed i? to be recorded is no part ot the contract,
and A does not record it, nor is there any act of the Legisla
ture making it void if it is not recorded. Afterwards, the
Legislature passes a law that a younger deed shall take pre
cedence of the older one if recorded first, and that the older
one shall be considered fraudulent as against the younger
one on record. B then sells the kmd to C and makes him a
deed which is recorded before A’s deed, and C sues A and
turns him out of possession. Here the whole matter of the
right is changed by legislation passed after the contract is
made, which was perfectly legal and valid when made. The
effect of the legislation is to take from A the land he had
legally purchased and paid for and give it to C because A
did not do an act not required by law when be made his
contract.
The doctrine laid down by these eminent Judges of the
Supreme Court, than whom none greater have sit upon that
Bench, and the decisions of that Court to which I have re
ferred, are sustained by numerous decisions of the State
Courts.
By an act of tlie Legislature of Maine the right was re
served to repeal a Bank charter on the failure of the Bank
to comply with the provisions of the charter. The Legisla
ture passed an act repealing the charter af the Frankfort
Bank, pending certain actions against the Bank. The effect
of the repeal was a dissolution of the corporation, which
caused the actions brought by the creditors against the
Bank to abate, and as the Court admitted defeated their right
to recover unless they might possibly have relief in equity.
Johnson, one of the plaintiffs, contended that this repealing
act, which destroyed his remedy against the Bank, impair
ed the obligation of the contract, and was therefore uncon
stitutional and void. The Court held the act Constitution
al. It says: “A remedy for a party may be changed, or
wholly taken away by the Legislature without contravening
the Constitution of the United States. And such a change
may constitutionally affect suits pending at the time when
made.” 23, Maine Reps., 318, 322*
In IS Maine Reports, 112, the Court says: The Legisla
ture must necessarily possess the power to determine by
law in what manner the person or property of the debtor
shall be subjected to the demands of the creditor; and of
making alterations in such laws, as a change of circumstances,
or the public good may require. And in doing this one may
be deprived of a right which he has by existing laws to ar
rest the body; or attach or seize a certain description of
property without infringing the Constitutional provision.—
When a person by the existing laws becomes entitled to re
cover a judgment, or to have certain real or personal estate
applied to pay his debt he is apt to regard the privilege
which the law affords hiui as a vested right ; not consider
ing that it has its foundation only in the remedy which
may be changed and the privilege thereby destroyed.”
The act passed by the Legislature of Alabama in IS42,
to prevent the sacrifice of real estate provided tor the redemp
tion of the debtors interest in any real estate sold", by the re
payment of the money with ten per cent interest at auy
time within two years; arid allowed another creditor the
same right of redemption, if in addition to the repayment of
the bid with ten per cent interest; he would give the debt
or a credit of ten per cent. The Supreme Court of that
State held this act to be Constitutional. They say:
“ We are unable to See how 7 this act is violative of the
Constitution, at least so far as it governs sales under execu
tion. Conceding that a judgment creditor at the time of
this enactment, had by his active dilligence acquired a lien
on the real estate of his debtor, this may be said to be en
tirely without his contract, and is in no manner affected by
it. The Legislature as it seems to us may modify or even
abolish all suen laws, without in auy manner impairing the
obligation of the contract. The answer to the entire argu
ment is that the creditor has stipulated for no specific lien,
and the only right under his contract is to. have the same
remedies which all other creditors are entitled to under the
general laws of the land. Jt might be contended with
equal force that imprisonment for debt was contracted for,
when the engagements were entered into some years ago, aa
that the right to sell the land of the debtor was uow a part
of the contract. The case of Bronson vs. Kinzie, 1, How
ard, 31 i, goes to show that a creditor who ha % contracted tor
a specific lien, upon his debtors.lands, cannot be deprived
of that right by any subsequent legislation, but certainly
stops far short of the decree in this suit.” It is however
contended the statute should be restricted to such judgments
as are obtained after its enactment. There is bo room to
give this restriction without departing from the very letter,
The right then of credi-i which directs that all sales “hereaftea made shall be gov
erned by it. In New York these statutes are considered re
medial, and as such entitled to be construed in the most
liberal manner to advance the remedy.—Van Ransalier vs.
Sheriff of Albany, 1, Cowan, 501. “With us statutes giving
a new Temedy have frequently been construed fo apply to
suits then existing.”—Bartlett vs. Lang, 2, Ala. Repts. 414.
“And such is believed to be the general construction with
respect to such statutes, unless the intention is apparent to
restrict their operation.”—Iverson vs. Shorter, 9, Ala., 713.
In 1, Texas Repts., 598-GOO, the Supreme Court of that
State says: “It was once thought that the question was
settled in the Supreme Court of the United States on prin
ciples easily understood, acknowledging and defining the
distinction between rights and remedies ; that a law that ef
fected aehange, ora nullity of the first, was prohibited by
the Constitution as impairing the obligation of contracts,
while sueh as only related to the remedy are not prohibited.
Laws of limitation were thought on the same distinction to
be applicable to the forum where tl»e suit was brought; that
as such laws did not abolish the debt, but only referred to
the remedy, their constitutionality was not questioned.—
I also invite your attention to the following Georgia de
cisions : ....
The right to regulate the remedy in its own Courts
must’be incident to each state, who may modify and change
it as the welfare of society may require.—Judge Law, R.
M. Charlton’s. Reps. 331. The Georgia statute to alleviate
the condition of debtors, and afford them temporary relief,
which enact' d that the courts should net issue out any
process or try any civil cases, except for the trial of the
right of property, real and personal, for a definite period,
was held not to impair the obligation of contracts nor
take away the trial by Jury.—Grimball vs. Ross T. U. P
Charitou’s Reps. 175.
The legislature may vary the nature and extent of the rem
edy so always that some substantive remedy be in fact left;
such I apprehend are the rules which generally obtain,
upon this branch of the subject. Nisbet, Judge deliver
ing the opinion of the Court 4 Ga. 220. He cites the fol
lowing authorities : Story on the Const, pp. 250, 251; l
Kent, 454, 45-5; 10 Sergt & Rawls 101; 16 ibid 35; 17
ibid 64; 7 Watts liUO ; 16 Mass. 260; 18 Maine 109. “The
I his is still the acknowledged doctrine of the Supreme obligation- of the contract is one thing—the remedy to
Couit of the United States; but cm what principle that enforce it another ; and while the former cannot be impair-
Court can reconcile the doctrine on that subject, with their
recent decisions, on the appraisement laws, is difficult to be
understood. In the first it is allowed to the legislative
power to say, that after the expiration of an arbitrary peri
od of time that may be adopted, we will refuse to give you
any remedy in our Courts on your contracts. In the latter
the legislature'say we will allow the benefit of process to
enforce your rights, only on the conditions prescribed. In
the first all remedy is withheld, in the latter a remedy is al
lowed coupled with conditions.” If the first is constitution
al how can the last be unconstitutional?
Under a statute of Pennsylvania, a mechanic who had
been employed by any one having an interest in lands, to
erect buildings thereon, had a lien upon the land and the
buildings, for his material and labor ; no matter who might
own the fee simple in the lands. A subsequent act took
away this right, and gave him a lien only on the interest
the employer had in the land—in the case under considera
tion a lease. The Supreme Court of the State held the act
Constitutional. They say:
“ But it is now clearly established, by repeated decisions,
that the Legislature may pass laws altering, modifying, or
even taking away remedies for the recovery of debts, with
out incurring a violation of the clauses in the Constitution
which forbid the passage of «r post facto laws, or laws im
pairing the obligation of contracts.”—4, Watts & Sergeant,
220.
The old law of Mississippi allowed the plaintiff to take
judgment at the first term after actiou brought. Plaintiff
commenced his action under this law, and while it was
pending the Legislature passed an act tint no judgment
should be rendered at the first term. The plaintiff conten I-
ed that this law could not apply to his case, as it would
impair the obligation of the contract, if applied to a case
already in Court. The Supreme Court say : “ The legis
lature have the undoubted right to establish and alter, from
time to time the remedies of parties, to fix the time of hold
ing Courts, the time and mode of trials, &c. And this
course of legislation has never been considered as impairing
the obligation of contracts, and taking away the rights of
the parties, but merely acting upon the remedy.—5, How
ards Miss. Repts., 285.
The legislature of New York passed a law exempting
from levy and sale, in addition to former exemptions, the
household furniture of the debtor, his tools and his team, not
to exceed $ 150, in value. The levy was made on two
horses of the defendant under that value, being the only
team he had ; and the question was whether this exemption
act, which applied as well to past as future debts, impaired
the obligation of contracts. The Supreme Court held that
it did not. The opinion of Judge Denio is a very able one.
Among other things he says: “ The right which a creditor
by becoming such acquires is, to have the use and benefit of
the laws for the collection of debts, which may be in force
when he shall have occasion to resort to them to enforce his
demand against the debtor.” “ The most obvious method
by which a contract may be impaired by legislation, would
be the alteration of some of its terms or provisions, so that
assuming the validity of the law the parties would be reliev
ed from something which they had contracted to do, or
would be obliged to do something which the contract did
not originally require. This is not the case with the law
as applied to the contract in question. The.right of the
defendants to the money agreed to be paid, and the obliga
tion of the plaintiff to pay it remains as when the contract
was made.”
“ These authorities are exemplifications of the principle
that legal remedies are in the fullest sense under the rightful
control of the Legislatures ot the several States, notwith
standing the provision in the Federal Constitution, securing
the inviolability of contracts; and that it is no valid object
ion to legislation on that subject, that the substituted remedy
is less beneficial to the creditors, than the one which obtain
ed at the time the debt was contracted.”
ed the latter may generally be left to the sound discretion
of the legislature.” Lumpkin, Judge 7 Ga. 166. See also
Cox vs. Berry 13th Ga. 30G. In 1847 the legislature pass
ed an act authorizing a party to dismiss his action once,
and recommence in six months ; held that an action brought
in 1846 w’hich was dismissed, and then barred by the lim
itation act, might be recommenced in six months under this
act. The statute acted upon the remedy.
Again, the remedy or mode and manner of enforcing con
tracts have never been considered as a part of their obli
gation, and have always been deemed within the legisla
tive control.—Lumpkin, Judge, 9th Ga. 258.
Another illustration of the control which the states
have a right to exercise over the remedy without impair
ing the obligation of the contract, is to be found in the
power which the states have to modify, arid in some cases
even to destroy the remedy, by means of statutes of limi
tations. It has been held by the Courts generally that
each state has the constitutional right to pass such statutes
of limitations as its own sense of propriety may dictate,
and that these statutes may operate on contracts already
iu existence without impairing their obligation. “The leg
islature may alter the period of limitation of the lien of a
judgment the.n existing, but it being an extraordinary pow
er, the Conrt will not infer the intention to make such al
teration from a doubtful expression.”—5 Watts & Ser«'t
4SS.
A statute of limitations although applying to cases when
the period of limitations has begun to run before the pass
age of the act is constitutional.—2 Shop. 344.
A statute limiting the time of bringing actions to a less
period than was before allowed, applies to contracts made
before its passage, unless it should operate to destroy the
remedy altogether.—1 Morris, 37; Newton vs. Tebatts 2
English Ark. ROp.
Upon this point I beg leave to refer at greater length to
two decisions of the Supreme Court of the United States.
The first is the case of Hawkins et. al. vs. Burney, 5 Pe
ters Reps. 456. The 7th section of the compact between
Virginia and Kentucky at the time Kentucky separated
from Virginia and became a state, declares that “all private
rights and interests of lands within the said state (Ken
tucky) derived from the laws of Virginia, prior to such
separation, shall remain valid and secure under the laws of
the proposed state (Kentucky,) and shall be determined by
the laws now existing in this state. (Virginia.) The statute
of limitations of Virginia at that time run twenty years be
fore theright to recover land was barred in favor of an
adverse claimant in possession. The state of Kentucky af
terwards changed the rule as it then existed, and enacted
that such right should be barred after seven years. And it
was held by the Supreme Court of the United States that
the right of a person holding a Virginia grant for lands in
Kentucky at the date of the compact, was barred by seven
years adverse possession, and that the act o e Kentucky
which changed the period of limitation from twenty years,
which was the law of Virginia at the date of the compact,
to seven years, did not impair the obligation of the com
pact between the two states, and was constitutional,
though it shortened the period of limitation thirteen years,
within which a Virginia grante e at the date of the compact
might sue and recover upon a Virginia grant. This law
of Kentucky, it was held only acted upon the remedy, and
it certainly varied k to a: much greater extent, and much
more to the injury of the pbintiff, than the statute of this
state now under consideration varies the remedy allowed to
plaintiffs in our Courts. 7 * •
The other is the case of the Bank of Alabama vs. Dal
ton 9 Howard 522. ,
The State of Mississippi passed a statute of limitations
in 1844 which barred all sui’s on judgments recovered
within that State after a lapse of seven year*; and all suits
on judgments thereafter rendered out of the State after six
years, and all suits upon Judgments obtained out of the
In commenting on the case of Bronson vs. Kenzie he says :! State before the passage of the act within two years after the
“ The act forbade the sale altogether unless there should be the act. Judgment was obtained bv the plaintiff*
offered for it an amount equal to two thirds of a valuation ^e defendant in Alabama on the 7th of February
to be put upon it by three persons, one of whom was to be The defendant afterwards removed to Mississippi
selected by the debtor. This was interpolating a new fea- w ^ ere arrived on the 10th day of November 1846, more
ture into the law and practice ot judicial sales, and one} ^han two yea is after the date of the limitation act above
which would be quite likely, in many, if not most cases, to| nien ti° ne d. Sqit was commenceifagainst him on thejudg-
render the remedy entirely nugatory. I should have found I oient in Uie U. S. Dist. Court of the Northern Dist. of
no difficulty in saying that no reasonable substantial remedy on day he arrived within that State. The defend-
was left to the creditor underthisact.” 1 ant pleaded the statute of limitations of Mississippi as his de
fence, to wit: That the suit was not commenced within
And in commenting on the case of McCracken vs. Hay
wood, 2, Howard, he says: %
“ In the able and discriminating opinion of Chief Justice
Taney in the first case, (Bronson vs. Kenzie,) the right to
two years from the date of said act. It was admitted that
this was the first day he had been in Mississippi or could
have been sued there. The Supreme Court of the United
States were unanimously of the opinion, and so ruled, that
make such changes is distinctly asserted; and if the opinion j the statute of limitations of Miisissipni ^verned the
in McCracken vs. Haywood, held the contrary it was un-: ease; that kacted only upon the remedy ami violated no
provision of the Consutuuon. The Court says: “In ad-
ministering justice to enforce contracts and judgments, the
States of this Union Set independently of each other, and
their Conits are governed by the laws and municipal reg
ulations of the. State where the remedy is sought, unless
they are controlled by the Constitution of the United States
and the laws euacted under it,” which the Court held
was not so in this case. ’I I ere the plaintiff had lost his
remedy in Ala. by the removal of the defendant from the
State, and though lie sued the first day the defendant resid
ed in Mississippi, it was held that the laws ot that State
whieh denied him any remedy, were not in violation of the
Constitution. In other words it was.ih effeot held by the
Supreme Court that the State might destroy the remedy
upon a judgment from another State, within her jurisdic
tion by 8tatute*)f limitations, without impairing the obli-
(Continued on dth page.)
necessary to go that length, and the doctrine would be hos
tile to the principles of several prior cases, and an unwar
rantable restriction upon the powers of the State govern
ments.”—1, Kernan’s Repts., commencing on page 2S6.
I might add a number of other similar decisions of State
Courts, to the same purport, did not the length of this argu
ment forbid it. The eurrent of decisions is unquestionably
on this line. I refer your honors to Stocking vs. Hunt, 3
Denio, 274; Bolton vs. Johns, 5, Barr, 145; Brown vs.
Schuyler, 4, Gilm, 221 ; Hill vs. Smith, 1, Morris, 70 ;
Ratbborne vs. Bradford, 1, Ala., 312. Some of these cases
establish more than I claim in the propositions-laid down as
the basis of this argument, as they claim for the legislature
the power to destroy jhe existing remedies altogether, whHe
I only claim the right of the Legislature to vary, alter, mod
ify or change them as the public good may require, always
preserving a substantive remedy.