9 Colo. App. 464 | Colo. Ct. App. | 1897
delivered the opinion of the court.
No case has been presented to this court since its organization beset with more difficulties, surrounded with greater perplexities, and about which I have had graver doubts respecting its proper solution. Aside from the infinite trouble to extract from the various adjudications on this and similar questions the rule which is recognized by the weight of authority, and to discover the right principle which ought
The error alleged to inhere in the record was committed by the entry of judgment of the lower court quashing a writ of attachment theretofore issued and levied. The writ was rightfully sued out on a sufficient ground as the statute then existed, was'untraversed, and should have been supported by the judgment, if the court erred in its conclusions respecting the effect of the repeal of the statute under which it was issued. Prior to 1895, whoever commenced a suit had the right to file an affidavit alleging any one of thirteen several causes of attachment. If a statutory ground was stated and the proceedings were otherwise regular, this entitled him to a writ under which the defendant’s property might be impounded to await the recovery of a judgment. If the affidavit was not traversed, or, if traversed, successfully maintained, the judgment must sustain the attachment, and the property could be sold to satisfy the plaintiff’s claim. Among these various grounds was one which provided that the writ might issue if the suit was begun on an overdue promisso^r note, or on a book account. In the present case, the suit was brought on a promissory note past due. The affidavit was not traversed, because the execution and delivery of the note was conceded and admitted not to have been paid when it fell due; and there being no controversy over the plaintiff’s cause of action, he was entitled to a judgment sustaining his writ unless he was deprived of the right by the act of the legislature which is' under consideration. In 1895, the act governing attachments which was contained in the code of procedure was amended, and amended in only one particular;—that was the striking out or omission of the thirteenth ground. Under the provision of our constitution, acts which are amended are amended by a reenactment of the original
' In limited governments like those of our several states, the power of the legislature is controlled by written constitutions, and all laws which they attempt to enact must be subservient to the limitations imposed on their authority, and all laws are subject to whatever restrictions are placed on this power by the conditions which the people themselves have
. The plaintiff in error invokes two familiar constitutional principles in support of his position. The first has been before the courts of most states, and often before the supreme court of the United States, has been repeatedly construed, and its general scope and effect has been largely considered and may be deemed tolerably well settled. This provision is the one common to the constitution of all states, as well as the constitution of our common country, that states may pass no laws which impair the obligations of contracts. While the limitation is well settled -and the question has been considered in many cases, no line has yet been drawn, no definition laid down, no exact and formal statement incorporated into any decision by which the matter may be settled. Each case seems to be only determinable and only to have been determined on its special circumstances, and only a few general principles have been laid down by which courts can be guided in the decision of the special case submitted. We are quite unable to discover that either the enactment or repeal of a statute giving the plaintiff a right to sue out a writ of attachment in aid of his suit is in any manner obnoxious to the constitutional provision which forbids the legislature to pass a law impairing the obligations of contracts. The attachment law can in no sense be said to be a part of the contract. The subject-matter of the action is a promissory note.
The same principle has been recognized by the supreme court of this state- in several well-considered cases. Harrison v. Smith, 2 Colo. 625; Gregory v. German Bank of Denver, 3 Colo. 332; Hirschburg v. The People, 6 Colo. 145.
Tested by these general principles we must conclude that the repeal of the act, even though it be taken to affect attachments already levied, is not invalid because in conflict with this particular provision of the constitution.
The other provision, which is invoked in support of the position that the repealing act may not be taken to affect rights already issued, is section 11, of article 2, of our constitution, containing the bill of rights. It provides “that no * * * law * * * retrospective in its operation * * * shall be passed by the general assembly.” This provision is not common to the constitution of many states, is not found in that of the United States, and therefore has been less frequently subject to adjudication and construction, and, as seems somewhat remarkable, has never but once been very largely discussed by the supreme court of the state. It was considered by the present learned chief justice of the supreme court in a late case, which will be cited, but the decision was put on a basis which would be impregnable, even though the first provision respecting the impairment of the obligation of contracts had alone been under consideration. While we derive some aid and benefit from their consideration, in neither of these cases do we find a discussion or decision which can
In the first case the legislature passed an act giving certain parties the right of action in case of personal injury. Plaintiff recovered a judgment, and by appeal the case went to the supreme court, and while there pending the act Under which the plaintiff sued was repealed. The court held that the legislature was without the power to pass an act which would operate retrospectively and destroy a cause of action which had accrued to the plaintiff and had gone to judgment before the repeal. While the general scope and effect of this constitutional provision was considered, and the court held the legislature powerless to deprive the plaintiff of a cause of action which he had when he brought the suit and got judgment, and any act which attempted to do it was obnoxious to this provision, it was evidently on the very plain principle that the constitution inhibited the legislature to pass acts which should destroy vested rights of action, and leave the plaintiff entirely without a remedy. The same principle was involved in the case of Brown v. Challis, and is in reality the basis on which the court put its decision. All courts which have considered the force and effect of that provision which forbids legislatures to pass laws which impair the obligations of contracts have held any act unconstitutional which deprived the plaintiff of his cause of action, or of a remedy for its enforcement, so long as the remedy was so inseparably connected with the cause of action that to take away the remedy would be to destroy the right. Any law which deprives a party of a vested right of action or defense has been universally held unconstitutional and void, whether the one or the other constitutional provision be under consideration. It therefore clearly appears we are without any authoritative decision in this state by which the matter may be settled. The question still remains whether the repeal of the act prior to judgment deprived the plaintiff of a right which he had acquired, which right was of the sort the legislature was powerless to affect
“There is much authoritj'- for holding, in general terms, that a right to have one’s controversies determined by existing rules of evidence is not a vested right; that rules of evidence pertain to the remedies which the state provides for its citizens; that, like other rules affecting the remedy, they must at all times be subject to modification by the legislature ; that changes affecting the remedy may lawfully be made applicable to existing causes of action; that the changes are not retrospective, because they are to be applied in future trials, and are not to affect previous trials. Cooley Const. Lim., 867. But general statements of this kind are to be taken with the broad qualification that the changes must not infringe the general principles of justice. Retrospective laws are unconstitutional and void, because they are injurious, oppressive and unjust. That is the plain and simple rule laid down in the bill of rights. And any generalization founded on the distinction between right and remedy is attended with some danger, because of the difficulty of drawing that distinction so accurately as not to impair the force of the constitutional prohibition. Undoubtedly, a remedy may be changed, in some sense, and to some extent, without affecting a right,—that is, there may be a change in the remedy that is not injurious, oppressive, and unjust: but it is equally clear that the remedy may be so changed as to affect a right injuriously, oppressively, and unjustly, within ■the meaning of the prohibition. A statute is not necessarily just and valid because it affects the remedy. The question is, mot whether it affects the remedy, but whether it affects the remedy in a certain sense, and the remedy only. This*473 point is forcibly illustrated in the dissenting opinion of Bell, C. J., in Rich v. Flanders, 39 N. H. 347, 348. If a statute, in terms made applicable to pending suits, should provide that no deed should be received in evidence unless the attesting witnesses were fifty years of age at the time of the trial, and if the retrospective character of such a statute were the only objection to its validity, it would not be made valid by the fact that it affected the remedy. It could not be applied to pending suits, or to deeds duly executed before its passage, because it would unjustly affect rights as well as remedies. Legal evidence of title could not be justly destroyed, however strongly the statute might profess to be exclusively aimed at'the remedy. The principles of justice, declared by the prohibition of retrospective laws, are not evaded by words, names, and pretences. And when we have merely ascertained that a statute affects the remedy in some sense or other, we have made very little progress in the inquiry whether it affects a right; that is, whether it is unjust on general principles. If a certain change can be made in the remedy, it is because it can be justly made; if a change cannot be made in the right, it is because it cannot be justly made.”
The learned judge well remarks that the statute is not of necessity to be adjudged without the inhibition because it affects only the remedy. The question still remains whether the destruction of the remedy has not injuriously affected substantial rights formerly possessed by the plaintiff. This may not be done. We prefer the term “substantial,” rather than “vested,” because the term “vested ” has a distinct and legal significance well understood by lawyers familiar with the law of real property, with regard to which only can that term be accurately and strictly used. Familiarly illustrative rights are those which the mortgagee acquires by virtue of his mortgage, those which the grantee has by his trust deed, and those which inure to the lienor on compliance with the statutes. Speaking in general terms, they are either, according to Mr. Fearne, “ an immediate, fixed right of present or
In the interpretation of the definition which has been given to the term “ vested rights ” in some of the New Hampshire cases, there can be no question concerning the accuracy of the term. A “ vested right,” as by them interpreted, is a right to do or possess certain things which the parties had already begun to exercise, which is either authorized by the statutes or to the exercise of which no obstacle exists in the laws which have been enacted. But wherever the statute takes away a right acquired under existing laws, or creates a new obligation, or imposes a new duty in respect to transactions already begun, the statute must be deemed retrospective. Pickering v. Pickering, 19 N. H. 389; Willard v. Harvey, 24 N. H. 344; Kennett’s Petition, 24 N. H. 139; Kent v. Gray, 53 N. H. 576; Rich v. Flanders, 39 N. H. 304; Colony v. Dublin, 32 N. H. 432; Haskel v. City of Burlington, 30 Iowa, 232; Simpson v. City Savings Bank, 56 N. H. 466; Rairden v. Holden, 15 Ohio St. 207; De Cordova v. City of Galveston, 4 Tex. 469; Palariet's Appeal, 67 Pa. St. 479.
It may be said that this discussion has in reality assumed that which ought to be substantiated in order to acquire a basis on which this construction can reasonably be put. The writ of attachment is said to be only a remedy provided by statute whereby the plaintiff may secure his debt if he ultimately be able to prove it and reduce it to judgment. There is a measure of truth in the contention, and I confess that originally I was of the opinion it was an unanswerable argu
We are therefore of the opinion that the judgment should have sustained the attachment, because by the levy the plaintiff acquired an interest in the property which became definite, fixed, certain, and vested by the ultimate recovery. We are also of the opinion that although this constitutional provision may be taken as incorporated into and operative upon the amended statute, so that it is read as though containing a saving clause as to all pending suits and proceedings, we may justly hold the act of 1891 part and parcel of the amended statute. We properly have a right to assume that the legislature, in passing the repealing statute without a saving clause, had in view the terms, scope, and legal effect of a statute evidently passed to provide for just such contingencies. That act is in general terms; it aims at no specific statute; it is intended to embrace all statutes, both civil and criminal, and was evidently intended by the legislature to cover cases of this description, which, without intending to be offensively critical, we may justly say not infrequently happen. The statute is broad in its scope, ample in its terms, and without giving undue force to its language, and without the adoption of a strained construction, may be taken to be a part and parcel of this repealing or amended statute. If this is so, then the statute was amended and reenacted with this provision attached, and we must read that section relating to attachments as though it contained a provision that it should not be taken to extend to or affect any suits or proceedings already begun.
This question has been before the circuit court of appeals of the United States in a case decided at the present term
We have preferred, however, to put our decision on constitutional grounds as well as on these general considerations. This has been done to protect, so far as we could, the rights
Believing that the court erred'in quashing the attachment, the judgment will be reversed.
jReversed.
Wilson, J., not sitting.