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fc "r.--* .. " '| -'.> \ ' V' " <> '. f * ' -V -.. t ? ? ? %..*- 4/ ** V. ' * ... * J^v,A % " I* * * ' * * - ? feY W. A. LEBANI) im*H WILSON. 1 lr?r ^ fc' " '^ '- -?- ? ? :? _!:' ' bt>* VOLUME XIV. NO. 14 ok Oftat sh>bloo*. vs. n. tA. riv*bb. frn the Court 6/ Errors, Columbia, May, 1861. V ^uiiAin Chief Justice. On 21st December, 1861, the Legislature of South' Carolina passed an Act entitled "An Aot to extend relief to debtors and to prevent the sacrifice of property at public sales." By the first section it is provided that <iT? .i?ii u i.?r..i fu- -f *? mill uub niwi ivt ?uj vrrnvQt v* this State to serve or execute any mesne or fioal process of any of the Courts of this State for the collection of money until after the expiration of the first session of the next General Assembly of this State, except In the cases therein after specially proTided." This Act was renewed in February and December, 1863?again in December, 1804?and in December, 1865, it was continued in force until the adjourn meat of the next regular session of the General Assembly. But, by the second section of the last mentioned Act, it was declared that nothing therein contains'1 should be construed to apply tc any ca? ,? of action which might' thereafter originate; nor should any debtor be entitled to the benefit of the Act, who should fail, on three months' previous notice, to pay his ct?4itor, on or before 1st December, 1860, one-tenth of the aggregate amount due nt the time of demand ; and on such failure the oreditor was authorized to prooeed to judgment and execution; but that no execution should be enforced far mnrA limn one-tenth as aforesaid during the continuance of the Act. Similar provision was ?uade in regard to any debtor on final process at tbe time subsisting. XbocaM first entitled i? that of a Rule on the Sheriff to shew cause why he had failed to serve the writ. The second case wtM a motion, on behalf of the defendant, to set aside tbe service of tbe writ. The ~rau*e shewn by Abe Sheriff was that tbe original cause of action was a money bood .executed in February, 1880, and he relied .on tbe prohibition in the Acts above rebelled as the justification of ibis refusal to -serve the process. Tbe cause of action in the second case was a due bill payable od demand ia 1860. The-culeagaiast the Sheriff was ditehvg -ed, aod the service or the writ ia the latter /cata was set aside by order of the Cireuit Count. Ao appeal was taken upoc tbe folbwiug :grouods: " {Because tbe Act of December,, 1861, .entitled "an Act to extend relief to debtors < and to prevent the sacrifice of property at .public tales, as also the Act of 21st Decani, ber J 865, entitled "an Act to amend the lav !known as the Stay Law," impair the obligation of contracts existing at the time of -said Act; are repugnant to the Constitution of the United States and of this State; and ate unconstitutional and void.' The cases vera transferred from the ?Ceurt of Appeals to the Court of Errors; as the highest tribunal in .the State, 4or fi,oal adjudication. . | 'By lO Sectton, 1 Article, Constitution (United States, pa?aed Wth September, ft 786, it in declared that no State shall en M>r tnu> uuy ueaiy, aiuacca or cod federation, grant letter* of marque and reprisal, -coin money, emit bllU of credit, make anything but gold and.aUrer coina tender in payment of debte, paaa any .bUl ofattainder, ex pott facto law, orlaw.impairing the obligation of eo* tracts./ So, in tha Conatitation of the State of 8o?th Carolina* Adopted id Jane, 1790, ft Article, 2 Seclion, it is declared,''nor aball any bill of attainder, tx poet facto law, or lair impair tag tb? obligation of contract? ?r?r bepaa* ??d by the Leghlatore ?f this State.*' A.. prohibition in tha wine terms ia adopted iu the'Cc^tUntioa of thU of 8opt?mbft i4&. (&&** fV*^6o 2.J It fa "v ,fe, ? , "V . * ? ( ' ?. - t m ,?? ',*'**'< *J hiabed from that great treasury and reservoir of rational jurisprudence, the Roman law ? We are inclined to believe this. The tradition is that Mr. Jastice Wilson, .who was a member of tbe Convention, and a Scottich lawyer, and learned in the civil law, was the author of tbo phrase.' Whatever may be the correctness of the tradition, the terra "obligation" it certain-. Iit rtwoffnirnd familiar!v bv the Roman iu? v - '"-O v ^ - * rista as denoting the legal tie which irapones a necessity of doing or abstaining from a particular aot as distinguished from the imperfect obligation arising from gratitude, charity or other moral duties, binding upon conscience, but having no legal remedy for their enforcement. This latter is the essence of the legal obligation. Silo hac condition*, ti volam, nulla fit obligatio. (Corpus Juris, Book 44, Chapter 7, Lex. 8.) According to the Roman law, where the legal obligation ceases to exist. Cum nulla subest causa constat nonposse constitui obligationem. (Corpus Juris, Book 2, Chapter 14, L. ? 2-4 de pactis.) ' In Ogden vs. Saunders, 12 Wheat it is said, "the obligation of a contract as spoken of in the Constitution, is a legal not a mere moral obligation; it is the law which binds the party to perform his Undertaking. The obligation does not inhere or subsist in the contract itself proprio vigor*, but in the law applicable to the contract; and this law i9 not the universal law of nations, but it ia the law of the StAte where the oontraot ia made; any law, which enlarges, or in any manner changes the intention of the parties resulting from the stipulations iu the cootract, necessarily impairs it. A drorting to these principles, Mr. Justice Trimble, who acted with the majority of the Court, Uius expresses himself: "The great principle intended lobe established br the Constitution waa the frivioIabiliU' of ^ ? j the obligation of contracts as the obligation existed, and was recognized. by the laws in force at the time the contracts were made." Whether the law professes to apply to the contract itself, or to regulate the remedy, it is equally within Lhe true meaning of the Constitution, if it, in effect, impairs the obligation of existing contracts. I do not mean to say that every alteration of the existing remedies would impair tbe the obligation of oontracta ; but I do say, with great confidence, that a law taking away all remedy from existing contracts would be manifestly a law imDairinp the W * ?a obligation of contrast*. Oa the other i band, a great variety of balances may toadily be imagined in which the Legislature of a State might alter, modify, or repeal existing remedies and enact othera in their stead without the slightest ground for a supposition that the new law4impaiced the obligation of contracts. If there be in- ' termediate bates of a more doatbful character, it will be time enough to decide tbem when they arise." In Mather vs. Bush, 16 John Bn 233, Chief Justice Spenser commented on the esse of Stnrgea wrl Orowbinsbisld then recently decided. His' said be bowed'tolbe supermaoy of the Supreme Court of the UnitedStatee upon the point 'AotuaUy derided j Vie ; the limited power of jk, State Legislature to pass bankrupt laws. But in reference to the distinction taken betweea "aCAae. iapairiog the obligation of a contrast and, operatiog dirdetiy upon it, and a law affecting or modifying the remedy upon the contract aud that latter is under ' the control - of the legislative power of a State," ha proceeds thus; "And,.although we nay ndt feel the full force of the di&tinctioo, it does .not become us to analyze the opinion, or to reason upon it any further than to observe that.the remadv is iMMniul. in duat M*, t? the ooDtract ; and to modify iit# so -M to render it law saluabl^'Buuihfisve th? Indirect effe&i io > impair its obligation." The crjticiam of ; *J- * / -' i - ... **#? . > -, t. -^ - ' '/ " . <:. ^ * V-;' *.' >" '" ' '?..' ' -. * v'-v ^ ^ *2^-'"* '*' ^^ji^jjjj^Q eel of tbe creditor's right, and ought not to be disturbed. All suspension by statute of remedies, existing when the contract was made, i3 more or lens impairing itB obligations." (1 KenlCom., 419.) Mr.Justioe Story usee this language: "When we speak of the obligation of a contract we include in the idea some known means acknowledged by the' nSunicipai law to enforce it. Where all such means - . J ^ are denied, tbe obligation of n contract is understood to be impaired, though it may not be completely annihilated." (Story Const., ? 1381.) Mr. Sedgwick says: "Looking at a con* tract legally and practially as an instrum ent by which rights of property are created, and on which tbey repose, obligation and remedy are strictly convertible terms. Take away the whole remedy and it is admitted the contract is gone. And it seems the only logical rule to bold that any legislation which materially diminishes the remedy given by the law to the creditor at the time his contract is made, jnst bo far impairs the obligation of the contract.' (Stat, and Const, Law, q. 652.) The alleged distinction between tbe - ^li j it 3 1 - ngui nuu iuo itjuibuy was proBsea upon tne Court ia Green vs. Biddle, 8 Wheat, 381. It was a case twice elaborately argued, and well considered. Mr. Justice Washington, speaking for the Court, Bays: "A right to land includes the right to enter upon it? to recover possession where withheld/ Again : "Nothing can be more clear upon principle of law and reason than that a law which denies to the.owner of land a remedy to recover the possession of it when withheld by any person, or which cioga dis recovery ot suen possession by conditions and restrictions tending to diminish the value of the thing recovered, impairs his right to and interest in the property. If there be. no remedy to recovor the possesion, the law necessarily presumes a want of tight to & If the remedy afforded be qualified and restrained by conditions on any kind the right of the owner may indeed subsist, but it is impaired and rendered insecure, according to their nature- and. extent of suoh restrictions." Twenty years afterwards these principles oarne under review, before the same Court in Bronsonv*.. Kinsie, 1 Hour., 01.1 rnu:- i.u ? 3 1 - an. j.uia istuir usw aruw uuuer woaijwas called "the valuation law" of the State of Illinois. The opinion was delivered by Chief Justice Taney. He says: "whatever belongs merely to the remedy may be altered according to the will of the State, provided the alternation does not impair the obligation of the oontract. But, if that effect is produced, it is immaterial whether it ts done by aotingon tbe remedy or diftotly on the contraot itself. Io either oase it is prohibited by. the Constitution." He then adverts to the case of Green and Biddle and repeats the' emphatic language there nsedby the Coufrt. ' It is no answerthat the Acts of Kentucky, now in questidn, are regulation* of the remedy and not ot the rights to the lands." UI(. these'Acta so change the nature and extent of existing remedies as materially to impair the rights and interests of the ow-* ner, they are just as rauoh a violition of the compact as if they directly overturn his rights and interests.". ^ "Weconcur entirely,*' adds the Chief Justice, "in the correotnsss of the rule above stated. It is difficult, perhaps, to drasr-s line that would be applicable to alt cases between legitimate alterations of the reme^ -J.1 I-i " '* >'* '' uj auu|>ruvtsioiM WUIOB, ID* ItlO XorBQ Ot remedy, impair the tight; But ic is mnni- i feet that the obligation of the contract^ and the rights of a party under it may, in dfoci, be destroyed by denying * remedy altogether} or may be Horiouily impaired by burdening the proceedings with sew conditions aod' reatrio^on^ iof j# to. make the remedy hnrdfy worth pursuing," ^aru;tK*r.l*wg ; ' * '*>>? ' "* ' ' ' L , '' * ' .''-7 "* v ' *k i> ' ^ " ' 4-'. * - "I- '.*>* >? -.J -. : a tinguiVhed men who framed it, to suppoRetbat it wan designed to protect a mere bar"ren and abstract right without any practical operation upon the business of lifo. It was undoubtedly adopted as a part of tho Constitution for a. great and useful purpose. It was to maintain tho intogvity of contracts, and to secure tbeir faithful execution throughout the Union, by placing them under the protection of ihc Constitution of the United States. And it would but ill become this Court, under anv circumstan ces, to depart from the plain meaning of the words used, and to sanction a distinction between tho right and the remedy, which would render this provision illusivo mere and nugatory, words of form affording no protection, and producing no practical result." He then Applies these principle : "The mortgagee is entitled to the aid or this Court; for this purpose it is his absolute and undoubtedjrigbt, under an ordinary mortgage deed, ifthe money is not paid at the appoints d day, to go in the Court of Chancery and obtain an order for the sale, etc. This is his right by the law of the contract; and it is thd duty of the Court to maintain and enforce it without any unreasonable delay." "When this contract was made, no statute bad been passed by the State changing the rules of law of equity in relatiun to a contract of this kind." liTl. ?U? 1- ~e till?i iucjr noio iuu innn u.' Alliums Ml 1116 time; and therefore, entered into the contract, And formed a part of it, without any express stipulation to that effect in the dead and, any subsequent law, impairing the rights thus acquired, impairs the obligation which the contract imposed. He then com men t9 upon the Act of Illinois of February, 1841. "The observations already made, (says he) in relation to the other Act, apply with equal force to this. It is true that this law apparently acts upon the remedy, and not directly up-: on the contract. Yet, its effeot is to deprive the party of his pre-existing right to forceloae, etc." In the following year the same subject was didcuasad in McCracken vs. Hay ward, 2 IIow., GOG. The opinion of theSuprfitt* Court was delivered by Mr Justice Bald > win. The obligation of a contract, (?ays he), oonsi?ts iu its binding force on the party who makes it.- "This depends on the laws in existence when it is made : these are necessarily referred to in all contract*, and forming a part of them m the measure of the obligation to preform them by the one party, and the right acquired by the other. There can be no other standard by which to ascertain the extent of AllhAr. thin that nrhlnVi #11/1 ??? ? f "-.VI. JkiiV VVJI UiO VI IUO contract indicate, according to their settled legal meaning ; when it becomes consummated, the law defines the duty and the. right, compels one par'-y to perform the contraot, and gWe3 the other a* right to enforce the performance by the remedies then in force. If any subsequent law affect to diminish the duty, or to imjfair- 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 operation, amounts to a denial or obstruction of the rights aceruiog by a contract, though professing to act only on the remedy,is directly obnoxiouB to the TM? nriii?inl? i? ? -.-- r ;r r stated and fully iettled in Branson w. Kincie, that nothing remains to be added lO the reasoning of tho " Court, or require* a refeience to any other authority {nan, 4* therein referred to.,J Alluding to tBt par-' iicular ease "under consideration, "the obJigation of the contract between the par? tios in tbia case, (e*ys Judge Bildwin), was to pc^rffithe p rom i sea and uri d er lak ings contained therein ; th* rFgtit ot tjifc plaintiff was to da mages for the breach thereof*, to bring suit and obtain a judgment, to take out aWpro<H?*t*ju? execution egainii -'/uuumeuaanirm (otjBOgantirin' i*0?? fled, pttrftttit to f&e exi?Ling Isw< of ^lliim* : 1/ ' ?1*^''!? Y"~ -* I ' -'j .:;>*.7 .- ?'. ? ' ' ia.; TVi.'-'V^.- V* " '* * '.Vi. '. "* cf > * : v'" ?" -.v ' j .* . i; ? ... . ' . ' r* <7 i,*^. -U - . ' ' -:: . . , ?? ? -v >i . . f-v>'fv s . ..-. *- '^ *</*/V <fe.w - -< ?? f t ., -fciefc j&SMjttfe '- jL-'* -' ^ **&** <* the ruling principles of the ease of Bron8on vs. Kincle." The law of Illinois prohibiting a sale under execution for less than two-thirds of the appraised value was held to ho unconstitutional and void. In Planter's Bank vs. Sharp, 6 How., 301, and again Curran vt. State of Arkaonas, 15 How., 319, these principles were re -affirmed.In the former case Mr. Justice Woodbury says : "One of the tests tbat a contract bas been impaired is tbat its value bas by legislation been diminished. It .is not, by "tlie prohibition of the Constitution, to bo impaired at all. This is not a question of degree, or manner, or cause, but of encroach-' ing in auy respect on its obligation, dispensing with any part of its force." (q. 32V.) In the latter case (15 How.) the doctrine is well condensed by Mr. Justice Curtis. "It by no means follows because a law affects only the remedy, that it does not impair tie obligation of. a contract. The obligation of a contract in the sense in which these woids aroused in the Constitution, is that duty of performing it which is recognized and enforced by the law?, and if the law is so changed that the means of legally enforcing this duty are materially impaired, the obligations of the contraot no longer remain the same." This last caso was decided A. D. 1853 ; and so lately as December, 1864, in Hawthorne vs. Calif, 2 Wallace, 10, the Su premeCourt of the United States, br Mr J Justice Nelson, took occasion to recognize and reaffirm "the principle decided in Bron-! son vs. Rincie, and the several subsequent cases of this class," and held that the Acts then under consideration so seriously affected the remedy of the mortagngee as to impair the obligation of- the mortnge contract within the meaning of the Constitution and declared them void. It would seem superfluous to add that this series of decisions by the Supreme Court of the United States is conclusive upon this tribunal in aettlinc the construo tion of the Constitution upon this subject. But we are not led without the light of instruction -from the adjudication's of our Si;!er (States. During the war of 1812, when the people of the country were greatly harrassfld in their affair?, the Legislature of North Carolina passed an Act stay-, ing execution upon judgments until the first term of the Court after February, 1814, upon the defendant giving security, &c. ; The Supreme Court of North Carolina held the law to be null and void, as violating the * prohibition of the Constitution against impairing the obligation of contracts. (Crittenden vs. Jones, 1 Car; Law Req., 385.) Tbat case came under review before the same tribunal in the oase of Barnei vs. Barnes/ decided June and Au* m?> Tho ftnlniftn nf thA flAiivt wm announced by C/hief Justice Pearson : "The plea, (says he),claiming for tbo do fendsnU the bepefit of what ia commonly called the Stay Law, presents for our deci ion the -question of- the constitutionality of an Act of the i&at session of the Gener? al Assembly, entitled "an Act to., pro vide against the saorifioe of property/ and to suspend proceedings in certain cases." Pur province is to'give judgfnent on the question of ^he GonstitutionsT power of (he Legislature to pass the statute. ' In the discharge of this duty We are relieved7 by- the U<Stth.t a question of .uoh importance; is now presented for the first time ao af to put uponustheresponsibillityof-makingadeciaion on fhe,8trength of our own ' cbntfo* tiont; for we Bad that the line Has' been plainly marked, in faot, "bl^ed out", by* many previous adjudications, so that if fe^n be eaailyfollowed; and all wo have to do make iui ajJ>pllcalioB,of well eataWjebed frriD<>jpl?a." ."Oaropinionu that the statute under consideration, bo far a? it Op* poses ibe rights of'lhe'plaintiff to a judgment intfiia ^urt **nd eKwaiWp^ U 1 .?*' - '" r . i . ' . - , * '" - . t/ ?,? , ^ *j . ',* * . ., ?., ' " ( . V. ; ..J * v: - ">V-i-.y?;vUi-1'^j v^--.i<^.?;..<'.. v^v A-r J. ;v * - which arises from the civil laws of the Government, and which, but for the.limitations contained in the Constitution, might hava been impaired and totally annihilated by the Legislatures of the States. 'This obligation operates through the medium of tbft sanction of the law, and consists emphatically in those remedies which the law supplies, and may bo denominated the legal obligation." "The Act of the Legislature is in conflict with that provision of the Constitution' of the Uuited-'States which forbids any Stato from pas mug u inw impairing tne obligation of contracts." "By tho Act in question,' it it true the obligation of the defendant's prior contract has not been entirely destroyed .'r ' "But during the time of the replevin, which is allowed by the Act, all pre-existing remedies upon the prior contract are suspended,and the obligation of the contract thereby weakened and impaired. To be in conflict with the Constitution it i* not necessary that the Act of the Legislature should import an actual destruction of obligation of the contract, it is sufficient if the Act imports an impairment of tho obligation. Tf by the legislative Act the obligation of contracts be in any degree impaired, or, what is the same thing, if the nhliorA>inn Ho wn?Wncirl /> ' vv .ivMttvuvu VI IOUUOI ?U ld3B operative the Constitution is violated and ; the Act so far inoperative." In the State of Mississippi the doctrine|is thus stated in Briscoe vs. Anketell, 28Miss,, R. 871. "It is too well settled to admit of question at the present day, that il ia with- . in the power of tho State Legislatures to regulate the remedy and modea of proceeding in relation to past as well a9 to futura contracts. This power is subject only to the restriction that it cannot be exeroised so as to take away all romedy upon tha contract, or 10 impose upon it* enforcement new burdens and restrictions which materially impair the value and benefit of the . contract." But the case of Coffroan vs. Bank of Kentuoky, is a recent decision of the Supreme Court of Mississippi. The Legislature of Mississippi had passed Acts in 1801 and 1865 not unlik* those passed in the years by-the General Assembly of Sonth Carolina. By the Act of 1865 all laws for the collection of debts dcc., were suspended until 1st January, 1866. Chief Justice Handy delivered the judg; ment of the Court. Admitting, in the most ample terms, the general authority of State legislation-io regard to the remedyT for the enforoetnent of contracts, and vio* dicating this authority as sanctioned by previous adjudications, "but (continued he) this power of the Legislature over reme- , diesis not without restriction, and any teg. ialatidflflrbi^h impairs the Val ue? and; hcm - efitof the contraot,.&ai^h,jynf^ aot upon the romady,ramt irbpair the i right jntended'to be secured by th6 contract,' and cptae within the Vevil intended.. to bo . prohibited bytheCxrasiit^on/! For though * ? the particulafcremedy exUtipgatthe . * , of milking the contract it not an eiMntial part of it, yet no contract would be of any ' " ; value without a remedy to enforoa 'ii. /]ft? obligation would be nugatory if ail remedy & to enfoiteit were taken away, and it would be impaired if the remedy"^were obilructedk 't . and rendered impracticable. Th3 remedy "' ^therefore, an inoident to tUe contract^ '; and tbough the; party m *y bare bV rij^t -." adder dy, yet ke basa xiabt. et all tidies: tor B&ner - ^Pj^tion (Mntraoi^: ^ . ? been .bold generally by of thebigbGat ' '+ * ' * 1.. * * ' ' : '.V. > * " *V*Y/ * * '"i * *rT**>"* . . ' ' ' T Vv ? V ' ?, 4 .. * ' V ? ' r . w W -'-Wte * . 'V* V* - - < 7 ^ - ..... ++ ^ ; y * y / -, *?" V .> ' " -