Imagens das páginas

or to impair the right, it necessarily bears on the obligation of the contract, in favor of one party, to the injury of the other; hence any law which, in its operations, amounts to a denial or obstruction of the rights accruing by a contract, though professing to act only on the remedy, is directly obnoxious to the prohibition of the Constitution." 1 "It is the civil obligation of contracts which [the Constitution] is designed to reach; that is, the obligation

which is recognized * by, and results from, the law of the [* 286] State in which it is made. If, therefore, a contract when made is by the law of the place declared to be illegal, or deemed to be a nullity, or a nude pact, it has no civil obligation; because the law, in such cases, forbids its having any binding efficacy or force. It confers no legal right on the one party, and no correspondent legal duty on the other. There is no means allowed

1 McCracken v. Hayward, 2 How. 612. “The obligation of a contract . . . is the law which binds the parties to perform their agreement. The law, then, which has this binding obligation, must govern and control the contract, in every shape in which it is intended to bear upon it, whether it affects its validity, construction, or discharge. It is, then, the municipal law of the State, whether that be written or unwritten, which is emphatically the law of the contract made within the State, and must govern it throughout, whenever its performance is sought to be enforced." Washington, J., in Ogden v. Saunders, 12 Wheat. 259. "As I understand it, the law of the contract forms its obligation." Thompson, J., ibid. 302. “The obligation of the contract consists in the power and efficacy of the law which applies to, and enforces performance of, the contract, or the payment of an equivalent for nonperformance. The obligation does not inhere and subsist in the contract itself, proprio vigore, but in the law applicable to the contract. This is the sense, I think, in which the Constitution uses the term obligation."" Trimble, J., ibid. 318. And see Van Baumbach v. Bade, 9 Wis. 577;

[ocr errors]

Johnson v. Higgins, 3 Met. (Ky).
566; People v. Ingersoll, 58 N. Y. 1.
Requirement of a license tax for
permission to do what a contract with
the city gives authority to do, without
"let, molestation, or hindrance,” is
void. Stein v. Mobile, 49 Ala. 362;
20 Am. Rep. 283. But licenses in
general are subject to the taxing
Home Ins. Co. v. Augusta,
93 U. S. Rep. 116; Read v. Beall, 42
Miss. 472; Cooley on Taxation, 386,
and cases cited. That a constitu-
tional convention has no more power
to violate the obligation of contracts
than the legislature, see Oliver v.
Memphis, &c. R. R. Co., 30 Ark. 128;
ante, p. 33, and cases cited. A law
giving interest on debts, which bore
none when contracted, was held void
in Goggans v. Turnispeed, 1 S. C.
N. s. 40; s. c. 7 Am. Rep. 273. The
legislature cannot authorize the com-
pulsory extinction of ground rents, on
payment of a sum in gross. Palairet's
Appeal, 67 Penn. St. 479; s. c. 5
Am. Rep. 450. A State law, discon-
tinuing a public work, does not im-
pair the obligation of contracts, the
contractor having his just claim for
damages. Lord v. Thomas, 64 N. Y.

or recognized to enforce it; for the maxim is ex nudo pacto non oritur actio. But, when it does not fall within the predicament of being either illegal or void, its obligatory force is coextensive with its stipulations." 1

Such being the obligation of a contract, it is obvious that the rights of the parties in respect to it are liable to be affected in many ways by changes in the laws, which it could not have been the intention of the constitutional provision to preclude. "There are few laws which concern the general police of a State, or the government of its citizens, in their intercourse with each other or with strangers, which may not in some way or other affect the contracts which they have entered into or may thereafter form. For what are laws of evidence, or which concern remedies, frauds, and perjuries, laws of registration, and those which affect landlord and tenant, sales at auction, acts of limitation, and those which limit the fees of professional men, and the charges of tav ern keepers, and a multitude of others which crowd the codes of every State, but laws which affect the validity, construction, or duration, or discharge of contracts?"2 But the changes in these laws are not regarded as necessarily affecting the obligation of contracts. Whatever belongs merely to the remedy, may be altered according to the will of the State, provided the alteration does not impair the obligation of the contract; and it does not impair it, provided it leaves the parties a substantial remedy, according to the course of justice as it existed at the time the contract was made.1

1 Story on Const. § 1380. Slave contracts, which were legal when made, are not rendered invalid by the abolition of slavery; nor can the States make them void by their constitutions, or deny remedies for their enforcement. White v. Hart, 13 Wall. 649; Osborn v. Nicholson, 13 Wall. 653; Jacaway v. Denton, 25 Ark. 641. An act of indemnity held not to relieve a sheriff from his obligation on his official bond to account for moneys which had been paid away under military compulsion. State v. Gatzweiler, 49 Mo. 17; s. c. 8 Am. Rep. 119.

2 Washington, J., in Ogden v.

Saunders, 12 Wheat. 259. As to the indirect modification of contracts by the operation of police laws, see post, pp. *574-*584. The taxing power conferred upon a municipal corporation is not a contract between it and the State. Richmond v. Richmond, &c. R. R. Co., 21 Grat. 611.

› Bronson v. Kinzie, 1 How. 316, per Taney, Ch. J.

4 Stocking v. Hunt, 3 Denio, 274; ' Van Baumbach v. Bade, 9 Wis. 578; Bronson v. Kinzie, 1 How. 316; Me Cracken v. Hayward, 2 How. 605; Butler v. Palmer, 1 Hill, 324; Van Renselaer v. Snyder, 9 Barb. 302, and 13 N. Y. 299; Conkey v. Hart, 14

* Changes in Remedies. It has accordingly been held [* 287] that laws changing remedies for the enforcement of legal contracts will be valid, even though the new remedy be less convenient than the old, or less prompt and speedy.1

"Without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation shall direct." To take a strong instance; although the law at the time the contract is made permits the creditor to take the body of his debtor in execution, there can be no doubt of the right to abolish all laws for this purpose, leaving the creditor to his

N. Y. 22; Guild v. Rogers, 8 Barb. 502; Story v. Furman, 25 N. Y. 214; Coriell v. Ham, 4 Greene (Iowa), 455; Heyward v. Judd, 4 Minn. 483; Swift v. Fletcher, 6 Minn. 550; Maynes v. Moor, 16 Ind. 116; Smith t. Packard, 12 Wis. 371; Grosvenor r. Chesley, 48 Me. 369; Van Renselaer v. Ball, 19 N. Y. 100; Van Renselaer v. Hays, 19 N. Y. 68 ; Litchfield v. McComber, 42 Barb. 288; Paschal v. Perez, 7 Tex. 365; Auld v. Butcher, 2 Kan. 155; Kenyon v. Stewart, 44 Penn. St. 179; Clark v. Martin, 49 Penn. St. 299; Rison v. Farr, 24 Ark. 161; Oliver v. McClure, 28 Ark. 555; Holland v. Dickerson, 41 Iowa, 367; Wales r. Wales, 119 Mass. 89; Sanders v. Hillsborough Insurance Co., 44 N. H. 238; Huntzinger v. Brock, 3 Grant's Cases, 243; Mechanics', &c. Bank Appeal, 31 Conn. 63; Garland v. Brown's Adm'r, 23 Grat. 173.

1 Ogden v. Saunders, 12 Wheat. 270; Beers v. Haughton, 9 Pet. 359; Bumgardner v. Circuit Court, 4 Mo. 50; Trapley v. Hamer, 17 Miss. 310; Quackenbush v. Danks, 1 Denio, 128, 3 Denio, 594, and 1 N. Y. 129; Bronson v. Newberry, 2 Doug. (Mich.) 38; Rockwell v. Hubbell's Adm'rs, 2 Doug. (Mich.) 197; Evans v. Montgomery, 4 W. & S. 218; Holloway v. Sherman, 12 Iowa, 282; Sprecker . Wakeley, 11 Wis. 432; Smith v. Packard, 12 Wis. 371; Porter v.

Mariner, 50 Mo. 364; Morse v. Goold, 11 N. Y. 281; Penrose v. Erie Canal Co., 56 Penn. St. 46; Smith v. Van Gilder, 26 Ark. 527; Coosa River St. B. Co. v. Barclay, 30 Ala. 120; Baldwin v. Newark, 38 N. J. 158; Simpson v. Savings Bank, 56 N. H.


2 Sturges v. Crowninshield, 4 Wheat. 122, per Marshall, Ch. J. A statute allowing the defence of want of consideration in a sealed instrument previously given does not violate the obligation of contracts. Williams v. Haines, 27 Iowa, 251. See further Parsons v. Casey, 28 Iowa, 436; Curtis v. Whitney, 13 Wall. 68; Cook v. Gregg, 46 N. Y. 439. A statutory judgment lien may be taken away. Watson v. N. Y. Central R. R. Co., 47 N. Y. 157; Woodbury v. Grimes, 1 Col. 100. Contra, Gunn v. Barry, 15 Wall. 610. It may be extended before it has expired. Ellis v. Jones, 51 Mo. 180. The obligation of the contract is not impaired if a substantial remedy remains. Richmond v. Richmond, &c. R. R. Co., 21 Grat. 611. Whether the legislature may take away retrospectively the liability of stockholders for corporate debts, see Coffin v. Rich, 45 Me. 507; Sawyer v. Northfield, 7 Cush. 490. See further Baldwin v. Newark, 38 N. J. 158; Augusta Bank v. Augusta, 49 Me. 507; Thistle v. Frostbury Coal Co., 10 Md. 129.

"Confinement of the debtor

remedy against property alone. may be a punishment for not performing his contract, or may be allowed as a means of inducing him to perform it. But the State may refuse to inflict this punishment, or may withhold this means, and leave the contract in full force. Imprisonment is no part of the contract, and simply to release the prisoner does not impair the obligation."1 So the exemption laws of a State may be modified from time to time, and the modifications made applicable to existing contracts, provided the exemptions are not so increased as to impair and lessen the value of the contract itself. The State "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 on judgments. Regulations of this description have always been considered, in every civilized community, as properly belonging to the remedy, to be

exercised or not, by every sovereignty, according to [* 288] its own views of policy and humanity. It must reside in every State to enable it to secure its citizens from unjust and harassing litigation, and to protect them in those pursuits which are necessary to the existence and wellbeing of every community.'

[ocr errors]


1 Sturges v. Crowninshield, Wheat. 122, per Marshall, Ch. J.; Mason v. Haile, 12 Wheat. 370; Bronson v. Newberry, 2 Doug. (Mich.) 38; Maxey v. Loyal, 38 Geo. 531. A special act admitting a party imprisoned on a judgment for tort to take the poor debtors' oath was sustained in Matter of Nichols, 8 R. I. 50.

2 Bronson v. Kinzie, 1 How. 311, per Taney, Ch. J.; Rockwell v. Hubbell's Adm'rs, 2 Doug. (Mich.) 197; Quackenbush v. Danks, 1 Denio, 128, 3 Denio, 594, and 1 N. Y. 129; Morse v. Goold, 11 N. Y. 281; Sprecker v. Wakeley, 11 Wis. 432; Cusic v. Douglas, 3 Kan. 123; Maxey v. Loyal, 38 Geo. 531; Hardeman v. Downer, 39 Geo. 425; Hill v. Kessler, 63 N. C. 437; Farley v. Dowe, 45 Ala. 324; Sneider v. Heidelberger, 45 Ala. 126; In re Kennedy, 2 S. C. N. s. 216;

Gunn v. Barry, 44 Geo. 351. It has been decided that a homestead exemption may be made applicable to previously existing contracts. Hardeman v. Downer, 39 Geo. 425; Ladd r. Adams, 66 N. C. 164. Contra, Homestead Cases, 22 Grat. 266; Edwards v. Kearsey, 96 U. S. Rep. 595, which must be regarded as settling the question.

And see Gunn v. Barry, 15 Wall. 622; Kibbey v. Jones, 7 Bush, 243; Kennedy v. Stacey, 57 Tenn. 220; Lessley v. Phipps, 49 Miss. 790. "Statutes pertaining to the remedy are merely such as relate to the course and form of proceedings, but do not affect the substance of a judgment when pronounced." Per Merrick, Ch. J., in Mortun v. Valentine, 15 La. Ann. 150. See Watson v. N. Y. Central R. R. Co., 47 N. Y. 157.

And laws which change the rules of evidence relate to the remedy only; and while, as we have elsewhere shown, such laws may, on general principles, be applied to existing causes of action, so, too, it is plain that they are not precluded from such application by the constitutional clause we are considering.1 And it has been held that the legislature may even take away a common-law remedy altogether, without substituting any in its place, if another and efficient remedy remains. Thus, a law abolishing distress for rent has been sustained as applicable to leases in force at its passage; and it was also held that an express stipulation. in the lease, that the lessor should have this remedy, would not prevent the legislature from abolishing it, because this was a subject concerning which it was not competent for the parties to contract in such manner as to bind the hands of the State. In the language of the court: "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 perpetuated, if 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 their contract. [* 289] 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. In truth, it is not at all probable that the parties made their agreement with reference to the possible abolition of distress for rent. The first clause of this special provision is, that the lessor may distrain, sue, re-enter, or resort to any other legal remedy, and the second

1 Neass v. Mercer, 15 Barb. 318; Rich v. Flanders, 39 N. H. 304; Howard v. Moot, 64 N. Y. 262; post, pp. *367-369. On this subject see the discussions in the federal courts, Sturges v. Crowninshield, 4 Wheat. 122; Ogden v. Saunders, 12 Wheat. 213;

Bronson v. Kinzie, 1 How. 311; Mc-
Cracken v. Hayward, 2 How. 608;
Curtis v. Whitney, 13 Wall. 68.

2 Van Rensselaer v. Synder, 9 Barb. 302, and 13 N. Y. 299; Guild v. Rogers, 8 Barb. 502; Conkey v. Hart, 14 N. Y. 22.

« AnteriorContinuar »