Abbeville press. (Abbeville, S.C.) 1860-1869, July 20, 1866, Image 1
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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. -^ - ' '/ " . <:.
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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"~ -*
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*</*/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
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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
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