Hasbrouck v. Shipman

16 Wis. 296 | Wis. | 1862

By the Court,

Cole, J.

In this appeal we have to consider the validity of the law of May 25, 1861, (Gren. Laws of 1861) p. 334,) exempting from civil process, all persons who have or may volunteer or enroll themselves as members of any military company mustered into the service of the United States or of the state, during such service.

It is contended that the act is one impairing the obligation-of contracts, and therefore is repugnant to the provision of the constitution of the United States and of this state upon that subject The majority of the court think that this view of the law must be sustained.

We have quite recently had occasion to inquire into the extent of the power of the state legislature to change, modify, or alter the laws governing proceedings in courts of justice, both in respect to past and future contracts. The rule extracted from the cases was, that this power was unrestricted so long as a substantial remedy was afforded according to the course of justice as it existed at the time the- contract was made. But the legislature must give some remedy, and not destroy the legal force and obligation of a contract, taking away all existing remedies. This would seem to be quite a plain proposition. The objection to the law in question is, that it takes away all existing remedies for enforcing the obligation of contracts, while the debtor is in the military service of the United States or of this state. So long as this military service continues the creditor is without redress. Should the debtor continue in the service, three, five, ten, or twenty years, he is, under the law, exempted from all civil process. It is very evident that this is a suspension for an indefinite period, of all remedies whatever. And such being the character of the law, we cannot see upon what ground its validity can be sustained.

It is claimed that the act is amply justified by the perils which threaten our national existence, and the imperious necessity which exists for obtaining a military force adequate to the defense of the country, (riving to these political considerations all the weight which has been claimed for them, they surely do not show that the exemption should be for an indefinite period. So, that even in this view, the law would have to be declared invalid.

The order of the circuit court is therefore reversed, and the cause remanded for further proceedings.

Paine, J., dissenting.