*1 43T Hied Kesseee.
(cid:127) -1 am unable to old. see how line drawn leaving can side,/ debt and the debt in behalf of on one roads unfinished else the. everything on the other. This establishment line to me appears to be I the termr arbitrary. understand . debt, to public include, debt, the old as it is called and known, contracted, in. contracted, the debt or tó behalf of roads, unfinished or to but also the incurred debt be incurred in the of its exercise Legislature, “powers (1) to contract debts, new for1 value obtained provided par debts; them, without new to contract levying tax; (2) even its bonds are below a tax in the lay par, provided same bill to pay interest.”
I there believe no as to diversity opinion of the Commissioners to taxes for levy purposes. county
T will not repeat position, as it is Opin- asserted ions of the Chief Justice Justices Reade Dick.
Per CuriaM.
SARAH HILL v. TOBIAS KESSLER. provisions giving State Constitution a Homestead and other Exemptions, contracts, apply pre-existing as well to such as afterwards; were entered into and do thereby provi- violate the sions of the regard Constitution States in United to the obli- gation of contracts. Reap,son, C. dissenting. J. 20; Smallwood, 112; 13 Ire. King, Jacobs v. arde cited and'
[Bean approved.)
n plaintiff, J., heard Cloud, at Term upon Spring Rule 1869 of Superior Court Rowan. had sued defendant Fall Term plaintiff bond, and for the his suit had prosecution given 3d with one At day August Hodge surety. obtained, rule Term 1869 this to show cause
Spring why -438 IN THE SUPREME COURT.
Hied i>. Kesseeb. -other and better should not be an affida- security given, upon vit that since the Term home- Hodge, had had his preceding stead and personal laid off in property exemption pursuance *2 Constitution, of Art. of the State “and now has no property either real, or personal which is not embraced in the exemp- tion as aforesaid.”
His Honor in the opinion Constitution did not to a contract the created before apply of that adoption Constitution, the and the discharged Rule; (cid:127)defendant appealed.
Blaekmer McOorkle, & for the appellant. & contra.
Hoyden Bailey, Reade, J. The is, involved in this case whether n $he in' our State provision Constitution certain exempting from sale, execution the impairs obligation pre- existing contracts.
The provision Constitution is as follows: X, Art. 1. Sec. The any resident personal this State to dollars, the value of five- hundred to be selected resident, such shall from hereby sale exempted under execution or other final issued process any the collection of debt.
Sec. 2. Homestead and Every dwelling buildings therewith, used in value dollars, one thousand exceeding to be selected &c., owner thereof shall be also ex- empted.”
There has been suitable to legislation out said carry pro- vision.
We concede that if this exemption impairs obligation contracts, either or expressly implication, against Constitution United and therefore void. of a contract is the duty its performance to the terms according Any terms, thereof. act which alters its or enables either other, without consent of the party, to alter or evade its terms, impairs obligation, is there- fore void. A $100 to B promises on a pay An given day.
HtTjTi ®. KbSSEER. earlier, act bim to him to requiring day pay allowing pay later, time, a day would alter the terms as to impair contract. $101, So an act him to requiring pay allowing him to $99, the debt with alter terms as would discharge to the amount, &c.
We concede, also, to be that a contract must be understood made with its enforcement. reference to laws for existing if, .And at the time there are laws exis- enforcement, tence for its if the State were it is the same as con- there are now and so there shall say parties, be, tinue to enforce the contract. laws to enable each party And assurance, abolish, after such State or injuriously Constitution be violative of the change it would the United States, and therefore void. before the constitutional contract in this was made case and, therefore, debtor (cid:127)exemption, pay when the agreed n creditor sum, a certain was the remedy we are to what enquire *3 .for the enforcement of that contract ? him,
It was to sue issue a get judgment, fi.fa., levy upon .sell such to execution. he have property subject might Observe, not or and sell levy upon property, any particular have; he «11 to execu- subject such as be might only might tion. What is his Law ? now remedy Exemption him, execution, It is to sue get levy upon issue judgment, n sellsuch What is as he has to execution. property subject the difference in the There is not then and now ? remedy (cid:127)only all, no injurious alteration, but there is alteration at no so far as the are concerned. proceedings was formerly the case his judg- when a creditor got ment he had one, two sale remedies; levy upon other, and the debtor. of the imprisonment Legislature abolished the which remedy by imprisonment, often brought would, leaving when else money nothing only con- And then it was remedy against property. tended that the abolishment of the remedy imprisonment, impaired cases, Courts, contract. But the in repeated decided otherwise. The true law being, of the import IN THE SUPREME COURT.'
Hmti Kessler. that the should have or parties any particular specific remedy; but a substantial and convenient one. In what way does which,- Constitutional alter or impair contract these is parties made? How the remedy What’ changed? contract, was the law at the time and which became a: of it? part Was that or any portion property which the contract, debtor had at the time of the should be liable to execution sale? Was that the creditor’s security for his debt? not. The contract Certainly was personal a lien Else, upon nothing. how would be if the debtor had no Or if he be,' ? had any, how would it he Or, if should sell it? how would it be with property how, after the contract ? Or acquired if. a subsequent more creditor vigilant ahead, should and take get the whole Or, in execution ? case the debtor’s death, how would dower, Or, the widow or a get year’s ? how provision would- funeral have the expenses over all other preference debts ?> These considerations make it that no such element- plain, as, contract, enters into any particular debtor has at the time or which he may. &c., shall be subsequently execution, sale, liable to acquire ’ n remedy particular guaranteed. guaranty there-, law, shall never altered and that contract shall to enforce it: and the remedy made, contract is not. such; with reference to the but also to existing, the; reasonable as the interests of society arid changes, require, > State think make. proper view, contended, it is Against there are expresa decisions to the If contrary. there be such the Courts of States, our sister entitled respectful, Court,' Court of the United Supreme our own *4 are the highest entitled to consideration. pressed cases most our attention in favor of the- upon Kinzie, v. creditor are Bronson How. and McCracken 2 How. both decided the v. Supreme Haywood, Kinzie, Bronson a case of the United States. v. was Court deed, that if the money in mortgage it was provided where TEEM, Httiu d. Kessueb. time, secured was not at a the might paid given mortgagee and an act to enter of Illinois sell; Legislature passed sell, as the effect that the no! enter and should mortgagee sell, he he contract said but that enter might, might upon conditions, certain in the This contract. was specified an alteration clearly obliga- impaired tion. But, contract how is the changed parties. contract in our case ? Not at all. It stands word changed word, as the too, made it. And parties so seen, we have stands word for word. other case, v. McCracken under an arose act Haywood,
of the Legislature, which stand, allowed the contract to stand, remedy except that when the provided, sale, levied on should property be offered for it should not be unless it two thirds of its brought value. The appraised .sold was offered for property sale would not bring price. What, then, was the Court to do ? The act to all the applied had, property the debtor all he ever acquire. might that, whether he had much or So little it could not property, sold, and by no means possible could the creditor make his But, here was a money. Clearly deprivation remedy. how it in our case ? The all, does not cover exemption but so much of only the debtor’s and does not property, his future acquisitions. It does not the execution sale clog terms, unusual which was the which ground Mc upon Cracken v. decided, was leaves it Haywood unembar- rassed. And if it should in our happen, as that all the debtor’s falls execution, was within purview should, Constitution that it but is only “ accident,” of the debtor’s and does not affect the In law. the case of McCracken the Court Haywood, ordered the to be sold for what it would bring, left to the creditor:
Our attention called also to elaborate opin ion of Judge Circuit Court of South Carpenter, Carolina, Purcel v. Whaley, reported newspa declaring pers, Carolina, laws of South ours, the same as unconstitutional substantially *5 THE- IN SUPREME COURT.
Him KessebR. and void. Tbe antborities relied on tbe learned by Judge were, others of less tbe aforesaid cases among importance, Bronson v. Kinzie and McCracken v. and we have Haywood; do not seen sustain bim. bim,
Another case cited bim, by is directly point Dank v. Quackenbush, 594, 3 Denio decided first the Su by Court, preme and-then the Court of New York. Appeals But the attention of the learned not called was Judge that, in case, fact in the Court of Judges were Appeals divided, and, therefore, equally the decision in the Court below nor to the more in a stood; fact important subsequent case, Gould, same Morse v. 1 Kernan Quackenbush the case of Dank v was reviewed and over ruled. the case before did Again, Judge Carpenter involve whether the Laws point Exemption impaired obliga contracts, and, therefore, tion bis opinion upon ques o^ a dictum. He states the tion involved in principles “ The case as follows: was law a judgment vested right, lien, a contract. Had the State the Constitutional divest bis and vest them in plaintiff right, defendant ? involved in Upon there principles is no difference between the former rights mortgage, by judgment; are vested, the latter but both are specfic general; legal rights,” &e. seen,therefore; involved,was It will be that the question not that of contracts impairing under the Constitu tion of the United but of liens and destroying invading vested rights, Constitution of South Carolina. therefore, There is in that decision nothing, against our position, the dictum of the learned for it Judge; pretended that in our there case lien or vested We right. are therefore, not, interested to further inquire learned into.the decision, that “liens” and “vested Judge’s cannot be rights” the State abolished Convention in their law. framing organic Orr, attention was called also to a Our decision Judge Carolina, tbe Court of South in tbe Circuit news- reported tbe South Carolina Laws. sustaining Exemption papers, decision, of a We are not aware as before single except JUNE TERM, 1869.
HhjIi KbssiiER. States, or stated, either the Courts of our sister the United States, in laws have been held to general the United the Constitution States. infringement let them, There no decision us see there against *6 in their iavor. 1842, York, in Legislature passed act, of New execution, from in addition former exempting exemptions, .to furniture, team, household and tools “necessary working $150 in value.” The creditor obtained a exceeding judgment act, a debt before and levied on the debtor’s upon existing team, horses, of was, and the pair whether the was exemption debts. The good against pre-existing opinion of the Court was able, elaborate and and that the exemption Gould, v. good is the more supra. opinion impor —Morse tant, as it reviewed and overruled a former case in the same v. Quackenbush, Dank cited by Carpenter. Judge Kinzie,
It also reviewed the of cases Bronson v. and Mc Cracken v. and indeed all the on Haywood, cases bearing subject, them from as we have from distinguished this. In a late Wisconsin, 559, case in 9 Bade, Baumbach v. Gould, the case of Morse v. is reviewed supra, approved. Kinzie, in J., And Bronson v. Taney, C. “A State says: Leg islature it think direct may, proper, necessary imple ments of or agriculture, mechanic, the tools of a or articles of in furniture, shall, household necessity like wearing apparel, not be liable to execution judgments; regulations of this kind have been in always considered civilized every com munity properly belonging exercised not, by every according to its views of sovereignty, policy It must in reside State to humanity. every enable it to its citizens from unjust harassing litigation, secure them in protect those which are pursuits, necessary existence and well of every community.” case,
in And Planter’s Bank v. subsequent Sharp, How. 301, Mr. Justice Woodbury, delivering opinion Court United enumerated Supreme exemp laws, tion among examples legislation, might IN THE SUPEEME COUET.
(cid:127)444
Hrm «. Kbssiíbb. in Bigelo And constitutionally contracts. applied existing w Massachu Pritchard, v. Court Pickering, Supreme diminish decided that the lawfully setts Legislature might ' a part to enforce by exempting the creditor's judgment, pro- on mesne from debtor attachment furniture, articles <-eess,or levy execution; example, family. his &c., for a debtor necessary and bedding, bed ; Gould, exemp Morse v. is said general supra,, And valid, possibly, a case happen, “though might laws tion th would constitute exempt property .where e Osborne, And in a late Stephenson debtor possessed.” America number of the 119, in the April 41 Miss. reported n decide Review, Court of Mississippi p. Supreme Law d as to law “was constitutional that the Mississippi exemption We have a at the time contracts existing passage.” of our own Court In Dean v. King, decision directly point. decides, Euffin, 13 Ire. the Court J. th delivering C. e of “a under mare and five opinion, hogs,” *7 - 1848, act of was a debt in 1846. contracted good against v, The case of Dean this : law was King exemption s 1845, to debts after and of contracted 1st applied July, insisted it was that the debt in that case before was contracted 1845, although the bond July, -1st for the contract was not until 1846. The Court said the was not executed exemption 1844, under the law of “a mare” not em "made because was law, 1848, made in that but was under the Act of and braced ’ true valid. It is that it does not that it that was appear not Act of 1848 could objected, Exemption apply was but it could not the attention of have escaped retrospectively, ' Court, eminent argued nor of the two counselwho 1848, 1846, law of to a debt of did applied an exemption as to the debt affected it. restrospectively operate have, construction, and too, We our legislative practice ' it, under for the last The Re- twenty Courts years. of our “ 1856, Code, makes the of one adopted exemption vised wheat, calf, and ten barrels of corn or fifty pounds cow fish, bacon, farm- necessary or one barrel of pork, beef 1869. Him v. Kessueb. laborer, and bed, covering tools for one bedstead
ing one as two of tbe (cid:127)every members sucb other family, sup- deem for tbe comfort necessary freeholders may to ex- not of such debtor’s such other port family; since dollars,” July ceed all debts fifty contracted apply 1st, of these true the Act of some It is were not Articles the bulk them were but exempted, were yet embraced in until they act any exemption 1st, 1845. made to to debts far back as apply July 1866-’67, Act exempting So our Legislature passed “ tools, horse, work All mechanical one farming necessary calf, oxen, milch cow and one one cart or one yoke wagon, fifteen head five hundred hogs, pounds pork bacon, wheat, and household corn, bushels bushels fifty twenty value.” And furniture, $200 in exceeding -and kitchen Which contracts. subsequent this was not restricted to a Homestead is the more the same Act significant, value, restricted to hundred without one acres regard to antece So debts. (cid:127)subsequent exemptions applying and of of our Legislature have had the sanction dent debts Courts, tor last all the and of practice twenty years. have been so
But then it is said that while that necessaries, too large; our regard yet exemptions are not If it Legisla- necessaries. be conceded debts, then ture has as to any thing existing necessaries, what are for the Legislature heretofore have not for the Court. But our laws necessaries, been have looked to the restricted to mere Code, “comfort and Revised family,” of the debtor’s support and consid- been have Supra; exemptions repeatedly increased, of manners erably change keep pace *8 It will read- customs, and the condition of our people. in that the late ily appear personal exemptions $500. If the instances, have exceeded many might greatly it is not pretended Legislature can exempt personal property, homestead. in real estate —a may like manner exempt not to con- objected Homestead law ought 29
446 . IN THE SUPREME COURT.
Him KessueR. strued to admit operate We that this is the* restrospectively. however, construction; rule of general with an in exception, and, favor of remedial called, as sometimes beneficial laws. All been, our laws regard remedies have procedure altered lately Procedure, new Code of Civil made- act debt, No no matter when retrospectively. contracted, can sued for and recovered now as before the Code. Even the Courts themselves have been changed.
theBy act of a motion for summary judg- ment on ten notice days’ Sheriffs for given against collec- ting money over. A failing pay motion was made a against Sheriff for an antecedent It was liability. objected that the act did not operate But retrospectively. “ held the contrary, when an act saying takes from away a citizen a vested right, constitutionality may be'inquired but when it alters the into; or mode of as proceeding vested, to rights previously runs a certainly constitutional channel. These acts are beneficial and should be favorably Darden, construed.” Oats v. 1 501. Murphy, aSo State Legislature a may from discharge party imprison ment in a upon judgment action, civil without infringing for this is but a Constitution; modification of the remedy; the Con. Mason v. Story Hiate, Wheaton, A Statute changing rules of evidence bemay applied suits. Con. pending Cooly, L. 381. So a statutory is not a privilege vested right; exemptions taxation, from persons or exemptions of prop- attachment, from seized erty execution, lb. 383- homesteads, or So other which are now Constitution, be made liable subsequent. Convention, lb. N. therefore,
If, the homestead laws were not retrospective terms, remedial, yet, they laws, beneficial interfering no vested are a rights, of the fundamental part law land, to be they ought in favor of construed liberally to be benefited. But we think person do not they depend construction. words are upon plain shall apply “ ”—all debt debts. And 'to it is construction, only by
Him v. Kessler. an think erroneous construction, and we that can be re- they to class of any stricted debts. particular But really homestead and laws, although debts, antecedent are not affecting, retrospective the proper term. of that What would be sense homestead prospective that which should Evidently law? allow a homestead to be What, that, laid from contra-distinguished off hereafter. be a homestead retrospective would law ? Evidently makes valid a homestead which has been laid which hereto- off error is in great fore. homestead law supposing law to defeat debts. That is no is a of the of the part object off a homestead is laying law. the sole object, is it, If altogether. debt is affected it any prospective conceded, therefore, incidental. be without merely homestead, law, affecting which is purpose debt, is But defeat a void. the homestead law declares its be, but, debts, its face to defeat allow object upon “ State, children,” and his his resident every “ home, and the widow,” a means of have them. living, they debts, not of but, in the defeating a question, language It is “ it Taxey, Justice is a question Chief policy civilized for every community humanity, regulates itself.” is a for the folly, justice injustice, Its wisdom and not for the In our Courts. power, law making sanction the Convention and of the Legisla- law has ture, the direct vote of the and of people adopting Constitution, and of the States which the United Congress And, as it not in the Constitution. contravention approved of the United as- it would the Constitution it void. to declare for us extraordinary power sumption of these this Court has nothing exemptions With policy then If are within Legislature, to do. “ us thus it is written.” sufficient it is it thought necessary suggestion, have not notice We is sale of lands under the execution inasmuch Statute. Statute, so may exempted by in this case arises as to the interference No question THE COURT. IN SUPREME
FTttiTi Kessmsb. the ex Constitution, because vested under our State rights The only- itself. in the Constitution emption is a provision contracts, is, question whether impairs think it "We States. of the United Constitution This will be ante, 112. Smallwood, does not. Jacobs v. certified, &c. *10 of a majority the conclusions
Rodman, J. I concur of the Opinion reasoning the Court—but not entirely brother, prefer my 1 to rest Readc. my Justice learned me hereto followed by reasoning on the course of judgment Smallwood,ante fore, Jacobs Dissenting Opinion my Homestead Act the ground is to say, upon 112; in cer (except and that remedy affects the merely, wholly to in that Opinion) tain extreme cases adverted of the States. within the jurisdiction “ex J., prohibition dissentiente. express C. Pearson, offences, the broad but to criminal laws” is confined post facto civil to extends as well on which rests of justice principle a retroac a rule of construction and it is settled rights, used law, a unless words never to be to given tive effect is beyond question- and show admit of no other meaning, “General are within operation. transactions past effect.” have that been allowed to have never words vague Maxims, 41. Broom’s Legal are, shall be Constitution, words, in the
In case the our com- "Very debt.” under execution “for any from sale statutes the same time indefinite. but at very prehensive, words without adopt the same out this ordinance carrying here- debt” them the of “any to Giving meaning explanation. know will there is no injustice, people after contracted debt, trusted; of any the meaning to them is to be giving who contracted, there hereafter debts heretofore debts as well the ordinary and a violation not injustice, is gross law, common of a fixed honesty, principle notions law, Elizabeth, and volun- “All gifts statute reaffirmed are void a debtor of his tary conveyances HniXi Kesseeb.
against existing creditors,” on I hesi- ground fraud. tate to give these indefinite construction words a imputes this; law a makers fraud in a gift it makes voluntary exis- conveyance himself, in fraud of debtor creditors, ting he the faith of which received credit, and of which he con- cannot law make a voluntary veyance to another. Courts are what not by governed the draftsman of a law meant, what supposed have but by the words mean, used rules of con- according settled 'struction. This maxim to, should when be adhered especially the law is submitted to de- a vote of the for it is people, cent to suppose that used, indefinite that some words were might vote for it one another. giving meaning, others
II. “No State shall pass law obligation impairing contracts.” to a These confined words comprehensive prohibition against but, also terms of altering forbid impairing its What is the obligation.
contract ? The means of according compelling performance, the laws ; in force, these time the contract is made by at *11 laws the abide; parties are these laws their agree rights fixed. This is the must not be impaired which State, a whether in General acting Assembly. Convention or now,
We are : “There will continue told are and so there be, laws the to enable each to enforce party assurance, abolish, after such if the or seriously change State the would be in violation of the Constitution remedy, United therefore void.” the concur, confusing In this I and the is—not fully a words—does or subject many multitude of cases with $500, not, the personal does “Homestead exemption” land, $1,000 the change value of injuriously property the contract and alter the in force at the time laws words, of this con- In the obligation was made. other is not out in ? It is set tract the Homestead impaired has debtor record, exempted the that besides the property enforced, obliga- and its the cannot So contract nothing. tion is impaired. destroyed, simply IN THE SUPREME COURT. KESSLER. V.
Him said, It is “the is not at all for creditor changed, can as just he' facias, and issue a writ take judgment offieri this is made.” All the contract was have done when could of ten out true, true, nine cases and it is equally very “ found nothing on fiadas, return will Sheriff fieri This is homestead law.” exempted by except The creditor trusted shadow, but not substance. contract, as had, at time of the debtor which a volun- which it, and to that law enforcing means of was the fradulent and void—that is declared tary conveyance held, I think yet it is that binds—and obligation, thing circumstances, that a under bias pressing the unconscious bestows, debtor, to injury on the this property law of con- creditors, does not the obligation impair existing tracts. law, wear- on the common argument: By urged a tradesman, and bed muster, for tools of a arms
ing apparel, furniture, articles these were exempted: (and then, by included in the obligation,) looked and were not i, articles, Statute, book, and e., Bible, hymn other certain books, horse, in all the value school a not to exceed finally $200, Now, creditors did not exempted. were because matters, to make choose a about small point these to make Assembly relied of the G-eneral fixing power thus and the exemptions against existing debts; power established, the is matter of extent of exercise legislative inch, First, and take an ell!” assume discretion 1 “Give Bible, book school exempt books; hymn added, $200 then a horse then worth of then $1,500 $500, land, then and then including $5,000, then limit, no save discretion! there is Legislative everything, believe, Indeed, consideration, the Statute under I exempts *12 debtors, in owned nine of ten. cases out every thing sanction, drawn from In reply argument Legislative 1822, In one fact whole. counterbalances Legislature of to the law for debt modify imprisonment deemed wise After full of contracts. discussion the act pro- JUNE TERM, 1869. Hairston and Wmaams.
State
v.
vides: “Any
arrested under
person
ad
capias
satisfaciendum
'for
debt
next,
contracted after the 1st
day May.
&c.,
give bond
shall not
appear,
be confined in
jail,
¡before.”
been,
aware,
I am
that in several of the States decisions have
made
homestead
sustaining
laws. These
cases
rest on the
fallacy of
assuming
power make
exemptions
some
extent,
then,
on
the idea
discretion,
Legislative
amount is swelled
up
it is
thousands;
justified on the
ground
pace
“keeping
progress
age,” pro
fear,
I
gress
this particular,
I
dishonesty and fraud.
cases
our
rely
own Court.
Jones Crit
choose
v.
tenden, 1 Car.
Law Rep.
Barnes v. Barnes
Pee Curiam. Let be certified. v. THE STATE WESLEY HAIRSTON PUSS WILLIAMS. Code, (Rev. declaring of the Act c. s. provisions 7) intermar- persons void, riages between of color to be whites still in State; having changes force in this been affected recent State, States; the Constitution or of the United Rights Bill. Civil (S. TJnderwood, approved.) ante cited and
INDICTMENT for Fornication and tried Adultery, before Cloud, J., at Term 1869 of the Superior Court Spring Porsythe. the trial that the defendant Hairston Upon appeared
n acolored man, and the defendant "Williams white woman; were as man and they cohabiting wife at the time of the bill. defence was that finding had been married. The established a duly faets such rela- marriage, could exist one of tion between whom is parties, colored and the other white.
His Honor instructed jury, law of the State alleged marriage nullity. this case was a