Imagens das páginas
PDF
ePub

is, that in cases of distress the lessee waives the exemption of certain property from the process, which by law was exempted. This waiver of exemption was undoubtedly the substantial thing which the parties had in view; but yet perhaps their language cannot be confined to this object, and it may therefore be proper to consider the contract as if it had been their clear purpose to preserve their legal remedy, even if the legislature should think fit to abolish it. In that aspect of it the contract was a subject over which they had no control.” 1

But a law which deprives a party of all legal remedy must necessarily be void. "If the legislature of the State were to undertake to make a law preventing the legal remedy upon a contract lawfully made, and binding on the party to it, there is no question. that such legislature would, by such act, exceed its legitimate powers. Such an act must necessarily impair the obligation of the contract within the meaning of the Constitution."2 This has been held in regard to those cases in which it was sought to deprive certain classes of persons of the right to maintain suits, because of their having participated in rebellion against the government. And where a statute does not leave a party

1 Conkey v. Hart, 14 N. Y. 30; citing Handy v. Chatfield, 23 Wend. 35; Mason v. Haile, 12 Wheat. 370; Stocking v. Hunt, 3 Denio, 274; and Van Rensselaer v. Snyder, 13 N. Y. 299. See Briscoe v. Anketell, 28 Miss. 361.

2 Call v. Hagger, 8 Mass. 430. See Osborne v. Nicholson, 13 Wall. 662; U. S. v. Conway, Hempst. 313; Johnson v. Bond, Hempst. 533; West v. Sansom, 44 Geo. 295. See Griffin v. Wilcox, 21 Ind. 370; Penrose v. Erie Canal Co., 56 Penn. St. 46; Thompson v. Commonwealth, 81 Penn. St. 314; post, p. *361. An act withdrawing all the property of a debtor from the operation of legal process, leaving only a barren right to sue, is void. State v. Bank of South Carolina, 1 S. C. N. s. 63.

[blocks in formation]

of a State, in an amendment to their constitution, taking away rights of action, or other rights, so long as they abstain from impairing the obligation of contracts, and from imposing punishments. The power to do so has been exercised with a view to the quieting of controversies and the restoration of domestic peace after the late civil war. Thus, in Missouri and some other States, all rights of action for any thing done by the State or federal military authorities, during the war, were taken away by constitutional provision; and the authority to do this was fully supported. Drehman v. Stifel, 41 Mo. 181; s. c. in error, 8 Wall. 595. And see Hess v. Johnson, 3 W. Va. 645. A remedy may also be denied to a party until he has performed his duty to the State in respect to the demand in suit: e. g. paid the tax upon the debt sued for. Walker v. Whitehead, 43 Geo. 538; Garrett v. Cordell, 43 Geo. 366;

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 [* 290] the legislature to do it, such statute cannot be regarded as a mere regulation of the remedy, but is void, because a substantial denial of right.1

*

It has also been held where a statute dividing a town and incorporating a new one enacted that the new town should pay its proportion towards the support of paupers then constituting a charge against the old town, that a subsequent statute exonerating the new town from this liability was void as impairing the contract created by the first-mentioned statute; 2 but there are cases which have reached a different conclusion, reasoning from the general and almost unlimited control which the State retains over its municipalities. In any case the lawful repeal of a statute cannot constitutionally be made to destroy contracts which have been entered into under it; these being legal when made, they remain valid notwithstanding the repeal.1

So where, by its terms, a contract provides for the payment of money by one party to another, and, by the law then in force, property would be liable to be seized, and sold on execution to the highest bidder, to satisfy any judgment recovered on such contract, a subsequent law, forbidding property from being sold. on execution for less than two-thirds the valuation made by appraisers, pursuant to the directions contained in the law, though professing to act only on the remedy, amounts to a denial or obstruction of the rights accruing by the contract, and is directly obnoxious to the prohibition of the Constitution." So a law which

Welborn v. Akin, 44 Geo. 420. But this is denied as regards contracts entered into before the passage of the law. Walker v. Whitehead, 16 Wall. 314.

1 Oatman v. Bond, 15 Wis. 28. As to control of remedies, see post, p. *361.

112.

Sedgwick, 15 Cal. 515; McCauley v. Brooks, 16 Cal. 11; Commonwealth v. New Bedford Bridge, 2 Gray, 339; State v. Phalen, 3 Harr. 441; State v. Hawthorn, 9 Mo. 389.

5 McCracken v. Hayward, 2 How. 608; Willard v. Longstreet, 2 Doug.

2 Bowdoinham v. Richmond, 6 Me. (Mich.) 172; Rawley v. Hooker, 21

Ind. 144. So a law which, as to ex

See ante, p. *193, and cases cited isting mortgages foreclosable by sale, prohibits the sale for less than half the appraised value of the land, is

in note.

Tuolumne Redemption Co. v.

66

takes away from mortgagees the right to possession under their mortgages until after foreclosure is void, because depriving them of the right to the rents and profits, which was a valuable portion of the right secured by the contract. By this act the mortgagee is required to incur the additional expense of foreclosure, before obtaining possession, and is deprived of the right to add to his security, by the perception of the rents and profits of the premises, during the time required to accomplish this and the time of redemption, and during that time the rents and profits are given to another, who may or may not appropriate them to the payment

of the debt, as he chooses, and the mortgagee in the [* 291] * mean time is subjected to the risk, often considerable, of the depreciation in the value of the security." So a law is void which extends the time for the redemption of lands sold on execution, or for delinquent taxes, after the sales have been made; for in such a case the contract with the purchaser, and for which he has paid his money, is, that he shall have title at the time then provided by the law; and to extend the time for redemption is to alter the substance of the contract, as much as would be the extension of the time for payment of a promis

66

void for the same reason. Gantley's Lessee v. Ewing, 3 How. 707; Bronson v. Kinzie, 1 How. 311. And a law authorizing property to be turned out in satisfaction of a contract is void. Abercrombie v. Baxter, 44 Geo. 36. The scaling laws," so called, under which contracts made while Confederate notes were the only currency, are allowed to be satisfied on payment of a sum equal to what the sum called for by them in Confederate notes was worth when they were made, have been sustained, but this is on the assumption that the contracts are enforced as near as possible according to the actual intent. Harmon v. Wallace, 2 S. C. N. s. 208; Robeson v. Brown, 63 N. C. 554; Hillard v. Moore, 65 N. C. 540; Pharis v. Dice, 21 Grat. 303; Thornington v. Smith, 8 Wall. 1.

1 Mundy v. Monroe, 1 Mich. 76; Blackwood v. Vanvleet, 11 Mich. 252. Compare Dikeman v. Dikeman, 11

Paige, 484; James v. Stull, 9 Barb. 482; Cook v. Gray, 2 Houston, 455. In the last case it was held that a statute shortening the notice to be given on foreclosure of a mortgage under the power of sale, from twentyfour to twelve weeks, was valid as affecting the remedy only; and that a stipulation in a mortgage that on default being made in payment the mortgagee might sell" according to law," meant according to the law as it should be when sale was made. But see Ashuelot R. R. Co. v. Eliot, 52 N. H. 387, and what is said on the general subject in Cochran v. Darcy, 5 Rich. 125. In Bathold v. Fox, 13 Minn. 501, it was decided that in the case of a mortgage given while the law allowed the mortgagee possession during the period allowed for redemption after foreclosure, such law might be so changed as to take away this right. But quere.

sory note.1 So a law which shortens the time for redemption from a mortgage, after a foreclosure sale has taken place, is void; the rights of the party being fixed by the foreclosure and the law then in force, and the mortgagor being entitled, under the law, to possession of the land until the time of redemption expires.2 And where by statute a purchaser of lands from the State had the right, upon the forfeiture of his contract of purchase for the non-payment of the sum due upon it, to revive it at any time. before a public sale of the lands, by the payment of all sums due upon the contract, with a penalty of five per cent, it was held that this right could not be taken away by a subsequent change in the law which subjected the forfeited lands to private entry and sale. And a statute which authorizes stay of exe- [* 292] cution, for an unreasonable or indefinite period, on judgments rendered on pre-existing contracts, is void, as postponing payment, and taking away all remedy during the continuance of the stay. And a law is void on this ground which declares a for

1 Robinson v. Howe, 13 Wis. 341; Dikeman v. Dikeman, 11 Paige, 484; Goenen v. Schroeder, 8 Minn. 387. But see Stone v. Basset, 4 Minn. 298; Heyward v. Judd, 4 Minn. 483; Freeborn v. Pettibone, 5 Minn. 277.

2 Cargill v. Power, 1 Mich. 369. The contrary ruling was made in Butler v. Palmer, 1 Hill, 324, by analogy to the Statute of Limitations. The statute, it was said, was no more in effect than saying: "Unless you redeem within the shorter time prescribed, you shall have no action for a recovery of the land, nor shall your defence against an action be allowed, provided you get possession." And in Robinson v. Howe, 13 Wis. 346, the court, speaking of a similar right in a party, say: "So far as his right of redemption was concerned, it was not derived from any contract, but was given by the law only; and the time within which he might exercise it might be shortened by the legislature, provided a reasonable time was left in which to exercise it, without impairing the obligation of any con

tract." And see Smith v. Packard, 12 Wis. 371, to the same effect.

3 State v. Commissioners of School and University lands, 4 Wis. 414.

4 Chadwick v. Moore, 8 W. & S. 49; Bunn v. Gorgas, 41 Penn. St. 441; Stevens v. Andrews, 31 Mo. 205; Hasbrouck v. Shipman, 16 Wis. 296. In Breitenbach v. Bush, 44 Penn. St. 313, and Coxe v. Martin, 44 Penn. St. 322, it was held that an act staying all civil process against volunteers who had enlisted in the national service for three years or during the war was valid, — “during the war" being construed to mean unless the war should sooner terminate. See also State v. Carew, 13 Rich. 498. A general law that all suits pending should be continued until peace between the Confederate States and the United States, was held void in Burt v. Williams, 24 Ark. 94. See also Taylor v. Stearns, 18 Grat. 244; Hudspeth v. Davis, 41 Ala. 389; Aycock v. Martin, 37 Geo. 124; Coffman v. Bank of Kentucky, 40 Miss. 29; Jacobs v. Smallwood,

feiture of the charter of a corporation for acts or omissions which constituted no cause of forfeiture at the time they occurred.1 And it has been held that where a statute authorized a municipal corporation to issue bonds, and to exercise the power of local taxation in order to pay them, and persons bought and paid value for bonds issued accordingly, this power of taxation is part of the contract, and cannot be withdrawn until the bonds are satisfied; that an attempt to repeal or restrict it by statute is void; and that unless the corporation imposes and collects the tax in all respects as if the subsequent statute had not been passed, it will be compelled to do so by mandamus.2 And it has also been held that a statute repealing a former statute, which made the stock of stockholders in a corporation liable for its debts, was, in respect to creditors existing at the time of the repeal, a law impairing the obligation of contracts.3 In each of these cases it is evi

*

[* 293] dent that substantial rights were affected; and so far as the laws which were held void operated upon the remedy, they either had an effect equivalent to importing some new stipulation into the contract, or they failed to leave the party a substantial remedy such as was assured to him by the law in force

63 N. C. 112; Cutts v. Hardee, 38
Geo. 350; Sequestration Cases, 30 Tex.
688. A law permitting a year's stay
upon judgments where security is
given was held valid in Farnsworth
v. Vance, 2 Cold. 108; but this de-
cision was overruled in Webster v.
Rose, 6 Heisk. 93; s. c. 19 Am.
Rep. 583.
A statute was held void
which stayed all proceedings against
volunteers who had enlisted "during
the war," this period being indefinite.
Clark v. Martin, 3 Grant's Cas. 393.
In Johnson v. Higgins, 3 Met. (Ky.)
566, it was held that the act of the
Kentucky legislature of May 24, 1861,
which forbade the rendition in all
the courts of the State, of any judg-
ment from date till January 1st, 1862,
was valid. It related, it was said,
not to the remedy for enforcing a
contract, but to the courts which
administer the remedy; and those
courts, in a legal sense, constitute
no part of the remedy. A law ex-

empting soldiers from civil process until thirty days after their discharge from military service was held valid as to all contracts subsequently entered into, in Bruns v. Crawford, 34 Mo. 330. And see McCormick v. Rusch, 15 Iowa, 127. A statute suspending limitation laws during the existence of civil war, and until the State was restored to her proper relations to the Union, was sustained in Bender v. Crawford, 33 Tex. 745. Compare Bradford v. Shine, 13 Fla. 393.

1 People v. Jackson and Michigan Plank Road Co., 9 Mich. 285, per Christiancy, J.; State v. Tombeckbee Bank, 2 Stew. 30. See Ireland v. Turnpike Co., 19 Ohio, N. s. 373. 2 Van Hoffman v. Quincy, 4 Wall. 535. See also Soutter v. Madison, 15 Wis. 30; Smith v. Appleton, 19 Wis. 468.

3 Hawthorne v. Calef, 2 Wall. 10.

« AnteriorContinuar »