109 Wis. 208 | Wis. | 1901
The only assignment of error argued by appellant is that the court erred in holding that the charter of the city of Oshkosh (ch. 59, Laws of 1891) did not, so far as it relates to the contract of June 18, 1883, impair the obligation of the contract. It is contended that said char
At the time of making the contract of June 18, 1888, the city of Oshlcosh existed and operated under a charter known as ch. 183, Laws of 1883, the first section of w'hich constituted it “ a municipal corporation by the name of the city of Oshlcosh, and by that name capable of suing and being s.ued in all courts of law and equity.” That charter (sec. 1, subch. YII) provided that moneys “ shall be drawn out only upon the order of the mayor and city clerk, duly authorized by vote of the common council; ” and by sec. 10, sübch. YII, “ any account or demand against the city, before acted upon or paid, the council may require the same to be verified by affidavit, except salaries and amounts previously fixed or determined by law.” Except for these restrictions upon the payment of money, the city of Oshlcosh was subject to suits upon contract liability like any other person or corporation.
In 1891 was enacted a revised charter (ch. 59, Laws of 1891), continuing substantially the provisions formerly existing in the first section and in secs. 1 and 10, subch. YII. That charter, however, contained a subchapter XXI. It provided:
“ Sec. 4 No action shall be maintained by any person against the city upon any claim or demand until such person first shall have presented his claim or demand to the common council for allowance, and the same shall have been disallowed in whole or in part; provided, that the failure of such common council to pass upon such claim within sixty days after the presentation of such clafm shall be deemed a disallowance thereof.
“ Sec. 5. The determination of the common council disallowing in whole or in part any claim shall be final and conclusive, and a bar to any action in any court founded on such claim, unless an appeal shall be taken from the decision of such common council as in this act provided.”
This amendment of the charter of Oshkosh was but one •of many such amendments to city charters occurring at about that time, significant of a marked change of legislative policy with reference to enforcement of money demands against cities. That policy was signified by its adoption in the general city charter promulgated by the legislature of 1889 for cities thereafter to be organized. That policy has been considered by this court in a series of de•cisions which it is believed have fully recognized and emphasized it. We have held that the preliminary steps are jurisdictional, and that unless complied with the court fails to acquire jurisdiction of the subject matter; that the various steps are mandatory, and cannot be waived by the officers of the city, nor can jurisdiction be conferred by such ■officers (Telford v. Ashland, 100 Wis. 238; Oshkosh W. W. Co. v. Oshkosh, 106 Wis. 83); that the bond cannot be amended nor a new bond given after the expiration of the twenty days (Oshkosh W. W. Co. v. Oshkosh, supra).
It is, of course, obvious that the amendment of the charter does not expressly and directly affect the obligation of any existing contracts. It is a change, of the law regulat
We here enter a field redundant of learned discussion,, philosophy, and decision, in which, as remarked by Mr. Justice Shiiias, the very frequency of decision would appear to have rendered it difficult to apply the result of the-court’s deliberations to new cases, differing somewhat in their facts from those previously considered. Barnitz v. Beverly, 163 U. S. 121. Several general propositions are,, however, settled so as to require in new cases merely their application. First and most primary among these is that, an act which in any degree, no matter how slightly, modifies the obligation of the contract by attempting to relieve-the one party from any duty by the contract assumed, is-repugnant to the constitutional prohibition. This rule applies to “ legislation which affects the contract directly, and not incidentally, or only by consequence.” Von Hoffman v. Quincy, 4 Wall. 553. Another general,rule early established is that over mere remedial procedure the power of the legislature is absolute; that laws regulating it involve so, much the consideration of public convenience and welfare-that individuals cannot be conceded vested rights therein.. For example, it would be intolerable that new laws regulating place or frequency of the sitting of courts could not be-enacted and be effective generally, even as to pre-existing-rights of individuals, although remotely they affect those-rights by adding inconvenience or delay to their enforcement.
In attempted recognition both of the necessity for freedom of general legislation as to remedies and procedure and of the constitutional inviolability of the obligation of contracts, the courts early sought middle ground on which both rights might be protected. In Wisconsin, the limits of that middle ground have received definition in a multitude of •cases, important among which are the following: Ligktfoot v. Cole, 1 Wis. 26, 33; Von Baumbach v. Bade, 9 Wis. 559; Starkweather v. Hawes, 10 Wis. 125; Cornell v. Hickens, 11 Wis. 368; Streubel v. M. & M. R. Co. 12 Wis. 67; Oatman v. Bond, 15 Wis. 20; State ex rel. Soutter v. Common Council
In Lightfoot v. Cole, 1 Wis. 26, 34, in discussing a statute-which abolished the pre-existing common-law and equitable suits on claims against insolvent estates, and substituted in-lieu a presentation and hearing before commissioners appointed by probate court, this court, by Cbawfoed, J., declared: “It was entirely within the control of the legislature to prescribe and modify the remedies which might be pursued in the courts of the territory, and to provide one-particular manner of proceeding, to the exclusion of others, so long as some specific remedy was 'preserved. ”
. The subject received more thorough consideration in Von Baumbach v. Bade, 9 Wis. 559, where was presented a law providing that, in suits to foreclose mortgages, defendant, should have six months to answer before default, instead of twenty days, and that notice of sale should be published six. months, instead of six weeks, as theretofore required. The rule under consideration was there laid down (page 577), by Dixon, C. J., as follows: “It being determined that the remedy, or laws for enforcement of a contract existing at the time it is made, enter into it and form a part of its obligation, it might perhaps be supposed that any repeal, change, or amendment of such remedy, or laws which in any manner delayed or rendered the enforcement of the contract, less complete and effectual, would be unconstitutional and void. But such is not the case. All the authorities agree that it is within the power of the, legislature to repeal,
This subject received renewed careful attention in the recent cases of Second Ward S. Bank v. Schranck, 97 Wis. 250, and Peninsular L. & C. Works v. Union O. & P. Co. 100 Wis. 488, where the rule of Von Baumbach v. Bade was substantially reasserted, it being said in elucidation thereof by Finney, J.: “ Any legislation, though acting merely on the remedy, that substantially impairs or lessens the value of a contract, is forbidden by the constitution, and therefore void.”
The latest declaration of the rule on this subject by the supreme court of the United States is found in McCullough v. Virginia, 172 U. S. 102, 124, as follows: “It is- equally well settled that changes in the forms of action and modes of proceeding do not amount to an impairment of the obligations of a contract, if any adequate and efficacious remedy be left.”
It is conceived that the various forms of expression adopted are intended to express the same idea, namely, that, if neither party is relieved from performing anything of that which he obliged himself to do, the obligations of the contract are
• A statute cutting off all ordinary and common-law proceedings previously existing for enforcement of claims against executors when the estate was insolvent, and prescribing a special remedy by presentation and proof before commissioners of the probate court, and ratable sharing in the assets, held within the power of the legislature because some specific remedy was preserved. Lightfoot v. Cole, 1 Wis. 26.
An act changing the time for answer and default from twenty days to six months in foreclosure actions, and changing notice of sale from six weeks to six months, held not to impair the obligation of pre-existing mortgages. Von Baumbach v. Bade, 9 Wis. 559.
The same act held applicable to sales under pre-existing judgments, and sustained. Starkweather v. Hawes, 10 Wis. 125.
A law giving a laborer for railroad contractors right of Recovery against the company, amended after performance of
Change of procedure in method of acquiring and enforcing log liens not unconstitutional, as applied to existing claims. Paine v. Woodworth, 15 Wis. 298.
Statute validating executions under justice of the peace judgments held constitutional. Selsby v. Redlon, 19 Wis. 17.
A statute enacted after a judgment in ejectment, taking away the pre-existing right, of course, to a motion and order for a new trial, held matter of remedy only and valid. Sydnor v. Palmer, 32 Wis. 406.
Change of procedure for foreclosure of mortgages, whereby, instead of an immediate personal judgment, to be followed by an immediate sale subject to one year’s redemption, there was only permitted a judgment postponing the sale for one year, and allowing a personal judgment only for the deficiency to be ascertained after such sale, held to merely regu-' late the remedy and not impair obligations of the mortgage. N. W. M. L. Ins. Co. v. Neeves, 46 Wis. 147.
A statute imposing additional terms on change of venue, held goes only to remedy, affects pre-existing actions, and not unconstitutional. Lee v. Buckheit, 49 Wis. 54.
Change of practice as to mechanics’ lien from law to equity, with substantial alteration as to form of judgment, method of sale, etc. (ch. 143, R. S. 1878), held applicable to pre-existing claims. Constitutionality apparently never questioned. George v. Everhart, 57 Wis. 397. .
Existing law made validity of attachment depend on suffi
Abolition of imprisonment for debt held no impairment of contract. Sturges v. Crowninshield, 4 Wheat. 122; Penniman’s Case, 103 U. S. 114.
Reasonable additional exemptions from execution do not impair obligation of contract. Bronson v. Kinzie, 1 How. 311, and Edwards v. Kearzey, 96 U. S. 595, 604 (opinions Hunt and Clifford, JJ.; contra, SwaxNE, J.).
Statute changing the law, by requiring that suit on notes, owned by banks be brought in the name of the cashier, does not impair the obligation of contracts. Crawford v. Branch Bank, 7 How. 279.
■ Existing law as to sale of decedent’s real estate required it to be at public, open sale, on full notice, and new law authorized a private sale under direction and approval of the court. Held, no impairment of existing contracts between estate and its creditors. Florentine v. Barton, 2 Wall. 210.
Imposing a notice as a condition of taking out tax deed held no impairment of contract embodied in the certificate. Curtis v. Whitney, 13 Wall. 68, affirming Curtis v. Morrow, 24 Wis. 664.
Where charter of corporation required service of process on its president, a subsequent statute authorizing service on-other officers held not to impair the contract. Railroad Co. v. Hecht, 95 U. S. 168.
Statutes of limitation, provided reasonable time is allowed for commencement of suit. Terry v. Anderson, 95 U. S. 628 Koshkonong v. Burton, 104 U. S. 668; Mitchell v. Clark, 110 U. S. 633; Relyea v. Tomahawk P. & P. Co. 102 Wis. 301.
Under pre-existing law, state bank bills were made receivable for taxes. Taxpayer could compel receipt by mandamus, or have other common-law remedies. New law
hlor did impairment result from a later statute repealing-that above mentioned, whereby the existing remedy of suit-against the state was taken away, and common-law remedies revived. McCullough v. Virginia, supra.
A statute subsequent to the issue of bonds prohibited mom-damus or other process against individual officers of a city to enforce judgment, and also prohibited.execution, and substituted as the sole remedy a registration of the judgment, accompanied by a duty on the city officers to pay out of first available money. Held, adequate remedy for enforcement of pre-existing debts, and not unconstitutional; reserving power of court to compel city to provide money if it failed to do so in the next succeeding tax levy. Louisiana v. New Orleans, 102 U. S. 203.
Under pre-existing law of Louisiana, minors, etc., had tacit mortgages on the property of their guardians and tutors. A subsequent act denied validity to such tacit mortgages-unless registered, allowing less than a year for registration of existing ones. Held, valid for the reason that it left an adequate remedy. Vance v. Vance, 108 U. S. 514, 518.
Law authorizing service of process on mayor or clerk may be changed to require service on the mayor without impairing obligation of prior contracts. Perkins v. Watertown, 5 Biss. 320.
Oh. 88, Laws of 1861, greatly modified the remedy upon farm mortgages to corporations. It required security for costs; deprived parties of trial before court, substituting a referee, with extremely dilatory procedure before him; gave intermediate appeal on rulings as to evidence, with stay; extended the time for appeal four years, with stay meanwhile, apparently without bond;'provided that no title should be acquired on the sale under any judgment until that time for appeal expired; provided that such sale should be of no effect in case of reversal; denied the right to any deficiency judgment; denied plaintiff right of appeal until he had paid all costs; required suit on the note or bond alone to be in the county where the mortgaged premises were situated; declared that the plaintiff should be deemed to hold the security prima fade with full'notice of all equities; stayed all sales under power of sale in the mortgage, in case misrepresentation or want of consideration were alleged, until such issue should be finally determined; and deprived the plaintiff of all other remedies except those specified in the chapter. This act was held to so burden the remedy as to impair the obligation of the contract. The court said that several of the detailed provisions, taken alone,— as, for example, the requirement of security for costs, — would not of themselves have that effect, but that the purpose of the act was so obviously to embarrass, restrict, and postpone the enforcement of these mortgages according to their terms that it must be held void. Oatman v. Bond, 15 Wis. 20.
A law authorizing the issue of certain city bonds required the levy of a tax to meet the same. A subsequent act pro
Suspension of all process against volunteers “ during service ” held to impair the obligation of the contract, because it deprived the creditor of all remedy for an indefinite period,— as the court said, “ five, ten, or twenty years.” Hasbrouck v. Shipman, 16 Wis. 296. The contrary has been held in other states, where the suspension was not indefinite. McCormick v. Rusch, 15 Iowa, 127; Breitenbach v. Bush, 44 Pa. St. 313; Clark v. Martin, 49 Pa. St. 299.
Statute making order of publication proof of sufficiency of grounds therefor held not constitutional as applied to preexisting void judgments. Nelson v. Rountree, 23 Wis. 361.
Statute giving subcontractor’s lien limited by the amount of the owner’s debt to the contractor, changed to make owner liable without limit, held to modify the obligation of existing contract between owner and building contractor, and therefore unconstitutional. Hall v. Banks, 79 Wis. 229.
Statute giving debtor power to vacate the lien of an execution or attachment by making assignment within ten days thereafter impairs obligation of existing contracts and is unconstitutional. Second Ward S. Bank v. Schranck, 97 Wis. 250; Peninsular L. & C. Works v. Union O. & P. Co. 100 Wis. 488; Eau Claire Nat. Bank v. Macauley, 101 Wis. 304.
Statute prohibiting sale, under power contained in a mortgage, for less than two thirds of an appraisal, and giving one year for redemption, held to impair the obligation. Bronson v. Kinzie, 1 How. 311.
Law staying execution of a judgment or enforcement of a contract impairs the obligation. Barnitz v. Beverly, 163 U. S. 118, and cases there cited.
In the light of the general rules on the subject, and the foregoing illustrations of their application, we turn to an examination of the changes in procedure for enforcement of claims not allowed by the council, accomplished by amendment of defendant’s charter. Under the former law, jurisdiction of the court could be invoked by service of summons, which, if accompanied by complaint, the city must answer within twenty days, except for extension of time in discretion of court. Defects in summons or service thereof could be waived by voluntary appearance. Mistakes in procedure whereby plaintiff failed of hearing on the merits usually worked only nonsuit, and he might sue again, subject only to statute of limitations. In contrast with this procedure, it is pointed but that under the charter of 1891 the plaintiff, before invoking jurisdiction of any court, must file his claim with the city clerk, and must await examination by the comptroller, and action of the council disallowing it, which may postpone him sixty days, instead of twenty. Further, in order to reach a judicial forum, he must give security for costs in a form prescribed by law, and with sufficient sureties. He must obtain- approval of the sureties by the city attorney and comptroller. Practically, he must do this within twenty days, appellant contends ; for, if a new bond be rendered necessary by a disapproval, that must be filed within that period from the
Some of these changes are too immaterial to require extended comment. Service of notice of appeal on the city ■clerk in lieu of service of summons on the mayor is so. Nor are we impressed with the importance of the asserted inability of a claimant to cure defects in procedure by amendment. It can hardly be said that there is any .vested right to make mistakes. A variance of policy as to liberality in permitting amendment cannot be said to -impair the obligation of any contract. A law permitting amendment of attachment affidavit has been held valid as to existing contracts and actions. Rosenthal v. Wehe, 58 Wis. 621. Why not the converse ? The fact that a failure to obtain judgment by reason of errors in procedure or lack of proof, which in ordinary practice would result only in nonsuit, leaves claimant barred of his claim, no more affects the ■obligation than does a statute of limitations leaving reasonable time to sue, but expiring before the defectiveness of an attempted suit is discovered. It certainly comes no nearer such obligation than does an act taking away one’s right to -a second trial as of course after a judgment in ejectment. Sydnor v. Palmer, 32 Wis. 406.
Perhaps the most cogent of appellant’s objections to the new procedure is that there is a period of suspension of his right to sue, resulting from the requirement that he must first present his claim to the council and await its disallowance. It is by no means certain that such obstacle is a new one. It has been held that the statute (secs. 19, 80, ch. 15,
The only remaining obstacle to judicial hearing and enforcement which appellant urges upon our attention is the requirement of a bond for costs in the sum of $150. This is in itself hardly a new burden; for our practice statutes have since long prior to 1883 subjected plaintiffs to a security for costs, in the discretion of the court, in still larger amount. Independently of this view, however, the absolute requirement that a plaintiff shall furnish reasonable security for costs, as prerequisite to suit, cannot be considered so completely a denial of adequate remedy as to impair the obligation of existing contracts. It is a very usual requirement of practice statutes and rules. If .our statutes were changed so that such a preliminary were absolutely required by law for all suits, instead of being permissibly required by the court as now, we apprehend there could be no doubt that such change is within the legitimate' control of the legislature over procedure. Such is the suggestion in Oatman v. Bond, 15 Wis. 20. But counsel urges that the bond is not amendable, and a mistake therein is fatal to the cause of action. The answer to this suggestion
That the change of legislative policy as to procedure upon ■claims against Oshhosh and many other cities was adopted in the utmost good faith, with no legislative purpose other than promotion of public welfare and proper protection of public funds against unlawful demands, cannot be doubted. Putnam v. Rubicon, 32 Wis. 498; Seegar v. Ashland, 101 Wis. 515. It is the duty of the courts to uphold and en
By the Gourt.— Judgment affirmed.
The obligation of a contract, in a constitutional sense, is the means provided by law by which it can be enforced. Whatever lessens the efficacy of this means, or tends to postpone or retard the enforcement of the contract, impairs the obligation. Louisiana v. New Orleans, 102 U. S. 203, 26 L. Ed. 132, and note; 9 Notes U. S. Rep. 1069; Baker, Ann. Const. U. S. 68. The remedies afforded by existing laws enter into and form a part of the obligation of a contract. The legislature has a right to change such remedies, and modify the laws governing procedure in court, if it leaves the party a substantial remedy according to the course of justice as it existed at the time the contract was made. Sturges v. Crowninshield, 4 Wheat •122. - One of the tests that a contract has been impaired is that its value has by legislation .been diminished. It is not a question of degree or manner or cause, but of encroaching in any respect on its obligation, dispensing with any part of its force. Planters’ Bank v. Sharp, 6 How. 301. The substantial question in this case is whether the new