Von Baumbach v. Bade

9 Wis. 559 | Wis. | 1859

Lead Opinion

By the Court,

Dixon, C. J.

This case comes before the court upon an appeal from the judgment of the circuit court of Milwaukee county, rendered on the 10th day of July, 1858.

The facts, as they appear from the record, are these: On the 2d day of June, 1857, the defendant, Bade, executed and delivered to the plaintiff a bond, conditioned for the payment of six hundred and fifty dollars on the first day of March, 1858, with interest at the rate of twelve per cent, per annum ; and to secure the payment of the suni mentioned in the bond, with the interest, did, at the same time, together with his wife, execute and deliver to the plaintiff a mortgage conditioned for the payment of said sum of money and interest, according to the condition of the bond, by which he mortgaged to the plaintiff in fee, certain lands, situated in the city of Milwaukee. The mortgage also contained the usual covenant or agreement, that in case of a failure to pay the principal sum or any interest which might accrue thereon, or any part thereof, or to pay the taxes, &c; that the plaintiff might sell the same at public auction, pursuant to the provisions of the statute authorizing the foreclosure of mortgages by advertisement

Neither the principal nor interest having been paid, the plaintiff, on the 22d day of May, 1858, by the service of summons on the defendant, commenced his action to foreclose the mortgage. After the making of the mortgage and before the commencement of the action the legislature passed an act, chap 113, Laws of 1858, approved May 15th, and published May 18th, 1858, now repealed, the first section of which provided that, “ in all actions and proceedings at law thereafter commenced under that portion of chapter 34 of the Revised statutes of 1849, entitled, ‘ of the powers and proceedings of courts in chancery on bills for the foreclosure or satisfaction of mortgages/ the defendant or defendants in such actions or proceedings should have six months’ time to answer the bill of complaint filed therein after service of summons or publication of notice, as then required by law; and that no default should be entered in any such action, until after the expiration of such time, any law to the contrary notwithstanding.” The 2d section provided that “ whenever in such action or proceeding, judgment should be entered or an order made by the court for the sale of mortgaged premises, it should before [be for] the sale of said premises, upon six months’ notice of such sale, as thereinafter provided; and that in all cases where before the passage of the act, judgment had been rendered in any of the courts of this state, or in the district court of the United States for the district of Wisconsin, in an action to foreclose a mortgage or mortgages, or where an order or decree had been made by any such court, for the sale of mortgaged premises, the mortgaged premises should be sold only upon six months’ notice given of the time and place of such sale, which notice should be given in the manner provided in the act for giving notices of the sale of mortgaged premises.”

By the 3d section it was made the duty of the sheriff, deputy sheriff, or other officer appointed by the court, to make sale of the premises immediately after receiving a copy of the order for the sale of mortgaged premises, upon which such proceedings had been instituted, to publish, or cause to be published, notice of the sale of such premises, (unless otherwise ordered by the court,) describing the same therein, as then required by law, in some newspaper of general circulation in the county, in which such premises were situated, at least once in each month, for the period of six months before sale of the same; and if no newspaper should be printed or published in said county, then the same should be published in some newspaper in an adjoining county, for the time aforesaid. It was further declared by said section, that no sale of mortgaged premises, under foreclosure by action, should be valid, unless made in accordance with the provisions of said act.

On the 10th day of June following, the defendant, Bade, by his attorneys, gave notice of his appearance in the action. On the 25th, he was served with notice that on the 3d day of July, the plaintiff would apply to the court for judgment. On the 3d. day of July, an order of reference was made by the court to a referee, to ascertain and report the amount due to the plaintiff on the bond and mortgage. The referee made his report which was confirmed, and on the 10th day of July the usual judgment of foreclosure, and for the sale of the mortgaged premises was made, except that the sheriff was directed to give public notice of the time and place of sale by advertisement in a newspaper published in the city and county of Milwaukee once in each week for six successive weeks, and twice a week for the last three weeks of said six. From this judgment the defendant appealed, and insists that it is érroneous and ought to be reversed: 1, Because judgment by default was entered against him before the expiration of the six months, after service upon him of the summons, within which he claimed the right to answer the complaint: and 2, Because the mortgaged premises were ordered to be sold, upon six weeks’ instead of six months’ notice of the time and place of sale.

By the law, as it stood prior to the passage of the act above referred to, defendants in foreclosure, as in all other actions, had but twenty days, after service upon them of the summons, in the manner prescribed by law, in which to answer the complaint, and if no answer was made within that time, j udgment by default might have been taken. There was no statutory provision fixing the time or manner of sale in such cases. The practice, (regulated by rule of court in analogy to sales of real estate on execution,) was to sell on six weeks’ previous notice of the time and place of sales, unless the court otherwise ordered. Such was the law governing at the time of answering, and the entry of judgment by default; and such the practice of the courts, as to notice and time of sale, at the time the bond and mortgage in question were executed and delivered.

On the part of the' plaintiff it is contended that the circuit court properly disregarded the provisions of the act, and proceeded to render judgment and direct a sale of the mortgaged premises as if it had not been passed. His counsel insists that the act is unconstitutional and void, because its provisions in relation to existing contracts violate the first subdivision of § 10, Art. I, of the constitution of the United States; and the 12th section of the first article of the constitution of this state, which prohibit the passing of any law impairing the obligation of contracts. The determination of the case depends upon the correctness of the position here assumed by the counsel for the plaintiff. The circuit court sustained them in it. If they are right the judgment must be affirmed, if wrong it must be reversed. This is not the first case in which this question has been raised an'd discussed at the bar of this court. It has, during the present term, been argued in several cases, but as they were all actions pending at the time of the passage of the act, and as we felt compelled to hold, that the act did not apply to such actions, it became unnecessary and improper for us to consider it. Owing to the vast interests affected by the act, the variety of opinions entertained by different members of the profession in relation to its validity, the conflict of decision upon it in the several circuit courts, and the degree of dissatisfaction and opposition with which it was met in various quarters, the question becomes one of much importance.

The question, whether contracts derive their obligation solely from the acts and stipulations of the parties independently of the remedy given by law at the time they are made, to enforce them, or whether the obligation consists in part in the duty of performance, as it is then recognized and enforced by the laws, has been the source of much perplexing debate and doubt, and in its solution “ all the acumen which controversy can give to the human mind has been employed.” It is not now however either a new or an unsettled question. If it were, or if we were permitted to determine it with reference alone to the provisions of the constitution of this state, as it would have been had § 9, of Art. I, been omitted, then, however much I might be inclined to yield to the powerful logic of Chief Justice Marshall in delivering the opinion of the minority of the court in the case of Ogden vs. Sanders, 12 Wheaton, 322 ; and the forcible reasoning of Mr. Justice McLean dissenting, in the case of Bronson vs. Kinzie, 1 How., 311, and come with them to the conclusion that the former position is correct, and that the legislatures may vary, or repeal remedial laws at their pleasure; yet, as § 9, of Art. I, of the constitution of this state declares that “ every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive in his person, property or character and as it has, with reference to the constitution of the United States, been authoritatively determined by the Supreme Court in the case last above cited, and in the subsequent case of McCracken vs. Hayward, 2 How., 608, that the remedy afforded by existing laws, enters into and forms a part of the obligation of contracts, I feel bound in the decision of the question, to be governed by the principles there established, and to treat it with reference to them. The doctrines there established are, so far as I can learn, the settled doctrines of all the states with reference to the same provisions in their own and the federal constitution. See. Morse vs. Gould, 1 Kernan, 281, and cases there cited.

The construction which has been thus put upon that clause of the constitution of the United States, which prohibits the passage of laws impairing the obligation of contracts, makes it equivalent, in its effect, to the section of the constitution of this state, to which I have last referred; and hence the rules which have been established in reference to the former, may be deemed proper guides for our action with respect to the latter. I shall therefore, whilst acknowledging the binding force of the latter as the paramount law of the state, discuss the question with reference to the former provision alone and the adjudications which have been made under it.

It being determined that the remedy, or laws for the 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, amend, change, or modify the laws governing proceedings in courts, both as to past and future contracts, so that they leave the parties a substantial remedy, according to the course of justice as it existed at the time the contract was made.

In the principal case of Bronson vs. Kinzie, supra, the court say: “ Undoubtedly a state may regulate, at pleasure, the modes of proceeding in its courts in relation to past contracts as well as future. It may, for example, shorten the period of time within which claims shall be barred by the statute of limitations. It may, if it thinks proper, direct that the necessary implements of agriculture, or the tools of the mechanic, or articles of necessity in household furniture, shall, like wearing apparel, riot be liable to execution on judgments. Regulations of this description have always been considered, in every civilized community, as properly belonging to the remedy, to be exercised or not by every sovereignty, according to its own views of policy and humanity. It must reside in every state to enable it to secure its citizens from unjust and harrassing litigation, and to protect them in those pursuits which are necessary to the existence or well being of every community. And although a new remedy may be deemed less convenient than the old one, and may in some degree render the recovery of debts more tardy and difficult, yet it will not follow that the law is unconstitutional. Whatever belongs merely to the remedy, may be altered according to the will of the state, provided the alteration does not impair the obligation of the contract. But if that effect is produced, it is immaterial whether it is done by acting on the remedy, or directly on the contract itself. In either case it is prohibited by the constitution.”

In accordance with the principles here laid down, it has been held that the legislature may enact a statute of limitation, by which the remedy upon existing contracts, if not prosecuted within a specified time, may be entirely defeated or cut off; that laws relieving debtors from imprisonment for debts previously contracted, and recording acts by which the older grant of real estate otherwise valid, is postponed and rendered inoperative and void as to the younger, if the prior conveyance is not recorded within a limited time, are constitutional and valid. Other laws of a similar nature might be named.

The result of the cases seems to be that the legislature may alter or vary existing remedies as it pleases, provided that in so doing their nature and extent is not so changed as materially to impair the rights and interests of the creditors. Practically this rule may seem vague and unsatisfactory, but it is the most certain general one of which the nature of the subject admits. The difficulty of applying its doctrines to particular cases, and of distinguishing between what are legitimate changes of the remedy, and those changes which, in the form of remedy, impair the right, has often suggested itself to the mind of courts when dealing with it. No such difficulty is experienced with regard to that kind of legislation by which the legislature, by attempting to change the terms or conditions of the contract itself, would relieve the parties from the performance of something which they had agreed to do, or compel them to do something which their contract did not require. So far, then, as the constitution of the United States reaches or affects alterations of the remedy, such alterations are, first, matters of sound discretion with the legislature, and, secondly, with the courts. The legislature having the power within the limits above stated, to control, at their pleasure, the remedy, are, in the first instance, to determine for themselves whether any change or modification of remedy is necessary, and if so, what change, and whether parties to contracts are left with a substantial remedy, according to the laws as they existed before such change, subject to a revision in the last particular by the courts.

In disposing of such a question, the greatest safety is in keeping strictly within the line of established precedents; and yet, as remedies are liable to be, and are varied in such a great variety of ways, but little light can be expected from former decisions.

In the case of Bronson vs. Kinzie, laws of 'the state of Illinois, passed subsequently to the execution of a mortgage, which declared that the equitable estate of the mortgagor should not be extinguished for twelve months after a sale, ■under a decree in chancery, and which prevented any sale unless two-thirds of the amount at which the property had. been valued by appraisers, should be bid therefor, were held to be unconstitutional and void. While the judgment obtained in a civil action, may for some purposes be considered a part of the remedy, it is not so for all; and the court say that the ■law did not act on the remedy merely, but upon the contract itself, by engrafting upon it new conditions unjust and in- ■ jurious to the mortgagee; that it declared,after the mortgaged premises were sold under the decree of a court of chancery, the purpose and object of which, according to the laws as ■they stood at the time the mortgage was executed, was to cut ■off the equity of redemption of the mortgagor, and those -claiming under him, subsequent, to the mortgage, that the equitable rights of the mortgagor and judgment creditors should not be extinguished, but should continue as to the mortgagor twelve, and as to creditors, fifteen months after the sale.; that it created in, and gave to the mortgagor and creditors, new .estates, which before its passage had no existence.

As to the prohibition to sell, unless two-thirds of the value of the mortgaged premises, as fixed by appraisers, was bid, they say that although it acts apparently upon the remedy and not directly upon the contract, yet its effect was to de-' prive the party of his pre-existing right to foreclose .the mortgage by a sale of the premises, and to impose upon him conditions which would frequently render any sale altogether impossible. The superadded condition that no sale should be made unless the sum specified was bid, was a denial altogether of the right to sell in cases where bids to that amount could not be obtained, and thus the obligation of the contract which could only be enforced by a sale of the premises, might be done away with and destroyed entirely.

The case of McCracken vs. Hayward, arose under the same statute laws of Illinois, and involved the same question last mentioned, except that it arose upon the sale of real estate upon an execution at law; the provisions of the statute as to valuation and bidding, having been applied as well to sáles of real estate on execution, as to sales under decrees in chancery. The court arrive at the same conclusion in this, as in the former case, and by a like process of reasoning.

In the late case of Curran vs. State of Arkansas, 15 How., 304, the doctrine that the remedy forms, in part, the obligation of the contract, is distinctly repeated and re-affirmed. Mr. Justice Curtis, in delivering the opinion of the court, says: “ But it by no means follows, because a law affects only the remedy, that it does not impair the obligation of the contract. The obligation of a contract, in the sense in which those words are used in the constitution, is that duty of performing it, which is recognized and enforced by the laws. And if the law is so changed that the means of enforcing this duty are materially impaired, the obligation of the contract no longer remains the same.”

In this case it was held that several acts of the legislature of the State of Arkansas, by which they withdrew from the Bank of the State of Arkansas, of which the state was sole stockholder, and which had become insolvent, all its assets, both real and personal, and appropriated them to the use of the state, were, as against the creditors of the bank, unconstitutional and void, for the reason that they entirely defeated the remedy, by leaving nothing out of which the debts could be satisfied. The learned judge, after adverting to the case of McCracken vs. Hayward, says: "The law now in question certainly presents a far more serious obstruction, for it withdraws the real property of the bank altogether from the reach of legal process, provides no substituted remedy, and leaves the creditor, as was truly said by the supreme court of Arkansas, iq its opinion in this case, in the condition in which his rights live but in grace, and his remedies in entreaty only.’ ”

These are all the decisions of the supreme court of the United States which have any direct bearing upon the question now before us. Does it fall within either, or the principles laid down in them ? I think -not. It seems to me that giving them all the force of authority, the legislation here complained of must be sustained. By it the remedy of the mortgagee, as it previously existed, is in all its parts substantially continued. No new conditions are engrafted. The form and mode of proceeding in his action, the nature and extent of his judgment, and of his rights under it remain the very same. It can be carried into as full and complete execution as at any former period. No clogs or impediments are thrown in the way, either of obtaining or finally executing the judgment, except in the matter of the time which is required for those purposes.

Is the time required by law for its accomplishment, so much of the essehce of every legal remedy, that it cannot be changed or extended by the legislature ? If so, then the legislature is shorn of a large share of its power to regulate and control remedies. And if so, then, I do not see how " a state may regulate at pleasure the modes of proceeding in its courts in relation to past contracts as well as future.” The power to limit or extend the time for answering, or within which any other step in an action shall be taken, is, and must be conceded. It has been oftener exercised and less questioned than any branch of legislative power touching remedies. The only limit or qualification to its exercise is, that the legislature shall confine their action within the bounds of reason and justice, and that they shall not so prolong the time within which legal proceedings are to be had, as to render them futile and useless in the hands of the creditor, or seriously impair his rights or securities. Within these limits the legis- ‘ lature may safely exercise this power in such manner as they may deem most beneficial to the policy and internal economy of the state, and the interests of all its citizens.

And although such changes are, in general exceedingly unwise and unjust, yet if from sudden and unlooked for reverses or misfortune, or any other cause, the existing remedies become so stringent in all or a particular class of actions, that great and extensive sacrifices of property will ensue, without benefit to the creditor, or relief to the debtor, a relaxation of the remedies, becomes a positive duty which the state owes to its citizens. The general welfare of the community is committed to its care and keeping, and on fundamental principles of justice, it is bound by reasonable regulations to promote and protect it. In passing upon questions like the present, courts must look behind the statute itself, and take notice of the causes which led to its enactment, for otherwise they would be unable to determine whether its regulations are reasonable or not, or were demanded by the state of the times or the financial situation of the country. By so doing in the present instance, I think it can be clearly demonstrated that the passage of the laws before us, was an exercise of sound discretion on the part of the legislature. But independently of these, or like considerations, and comparing the remedy as it existed before the passage of the law, with it as it was afterwards, I cannot say that the delay occasioned by it is so great, or so unreasonable, or that it so obstructs or embarrasses proceedings for foreclosure on the part of the mortgagees, as to make it, under any circumstances, unconstitutional and void. A complete and substantial remedy was left them, according to the course of justice, as it was administered before its passage, the only difference being that it was less expeditious, but not so much so as materially to affect or diminish their rights. All must admit, I think, that its unconstitutionality is doubtful, and in such cases it is a well settled rule of courts to resolve doubts in favor of the validity of the laws.

I am of opinion, therefore, that the judgment of the circuit court should be reversed, and the cause remanded for further proceedings.

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Concurrence Opinion

Paine, J.

I concur with the opinion of the chief jus.-tice, that the mortgage stay law, as it is called, is a valid law within the rule established by the supreme court of the United States, in Bronson vs. Kinzie. I think, also, that he has correctly estimated the result of that rule, in saying, substantially that it leaves the states at liberty to legislate as they please in regard to remedies, subject to a judicial veto, if the courts think the legislation too unreasonable to stand. But I must be permitted to go farther, and say, that I have never been able to see that the rule itself rests upon any solid foundation of reason or principle.

The constitution of the United States prohibits the states from passing laws which impair the obligation of contracts. The question is, whether laws, impairing the remedies, come within the prohibition. This clearly must depend upon the question whether the remedy furnished by law at the time a contract is entered into, constitutes its obligation. And whichever way this question is decided, it seems to me it must overthrow the rule of Bronson vs. Kinzie. For if it be held that the remedy does constitute the obligation of the contract, then it follows, necessarily, that the remedy cannot be diminished or impaired in the slightest degree, without impairing the obligation. This is not a question of discretion. It is not a question whether the obligation of contracts is impaired to an unreasonable extent"; it is whether it is impaired at all. And so soon as courts have established the conclusion that the remedy is the obligation, the only further inquiry they can make with respect to any law, is whether it diminishes or impairs that remedy to any extent, not whether it does so to an unreasonable extent. Suppose a contract entered into for the payment of money on a day certain; if the state should pass a law that the party should not be bound to pay it until the next day, this would clearly impair the obligation of the contract, and it would be the duty of every court to hold the law void. It might be shown that strong reasons existed for the change, and that it was highly reasonable and proper in itself. But this could have no weight whatever. The answer would be that the constitution does not leave the states a discretion to impair the obligation: of contracts in a reasonable manner, but that it prohibits them from impairing it at all. I think this conclusion, with reference to a law acting directly upon the obligation, will scarcely be questioned by any mind.

Now it may not be so clear that a law acting on the remedy only, would affect the obligation, as it was clear that the act did in the case supposed. But the moment this doubtful point is got over, and it is established that the remedy is the obligation, then the conclusion is equally inevitable, that any law which delays or postpones it for a day or an hour, is within the .constitutional prohibition. I think it might even be said that the remedy could not be changed, even though the new one was equally efficacious. Because, if the remedy given at the time the contract was entered into, constituted its obligation, then the party is entitled to that remedy, and it is no answer to say that the state has given him another just as good. Test it by an illustration, where there is no room for question that the law reaches the obligation of the contract. Suppose a contract to deliver com; could the state [release the party from that obligation, byrproviding that he might deliver wheat ? Clearly not. It would be no answer to say that the wheat was just as valuable as the com, or even more so. However valuable it might be, it was not the contract. Suppose a contract by which a lien is created on certain articles, and a power given to sell a part of them, on default. Could the state by law deprive the party of the power to sell that part, by giving him an authority to sell the other part, even though more valuable, or by giving him any other, even superior remedy? Clearly not. All must admit in these cases where there is no doubt that the contract is affected, that any change of it is beyond the power of the legislature. And I say again, however doubtful it may be that laws acting on the remedy do affect the obligation; yet, when it is once established that the remedy constitutes the obligation, it would seem to follow, by the same necessity, that the remedy cannot be changed. Any change of the obligation impairs the obligation. Because, though a new obligation, equally beneficial, should be created, yet the old one, which was the obligation of the contract, would to the extent of the change, be impaired or destroyed. It follows, therefore, if the remedy is the obligation, that it cannot be impaired in the slightest degree or changed,without violating the constitutional provision.

But, on the other hand, if the remedy does not constitute the obligation of the contract, it follows that it remains under the control of state legislation, and that even if it should be destroyed entirely, it would not be a violation of the constitution.

But what is the rule in Bronson vs. Kinzie? It takes neither the one position nor the other. It neither says that the remedy is the obligation, and therefore it cannot be impaired, nor that it is not the obligation, and therefore may be impaired. What it concedes can only be sustained on the assumption that the remedy does not constitute the obligation ; what it refuses to concede can only be sustained on the assumption that it does.

The court says: “ If the laws of the state passed after-wards had done nothing more than change the remedy upon contracts of this description, they would be liable to no constitutional objection. For, undoubtedly, a state may regulate at pleasure, the modes of proceeding in its courts in relation to' past contracts as well as future.” Now, how is it possible to sustain this statement, except on the theory that the remedy does not constitute the obligation ? It can be done upon no other. For if it does constitute the obligation, if “the modes of proceeding in courts,” which are in force when contracts are made, constitute their obligation, then the language just quoted would be equivalent to saying, that the states might change (he obligation of contracts without being liable to any constitutional objection, that they might, at their pleasure, “ regulate” the obligation of “ past contracts, as well as future.”

But the court proceeds to say: u It may, for example, shorten the period of time within which claims shall be barred by the statute of limitations. It may, if it thinks proper, direct that the necessary implements of agriculture, or the tools of the mechanic, or articles of necessity in household furniture, shall, like wearing apparel, not be liable to execution on judgments. Regulations of this description have always been considered, in every civilized community, as properly belonging to the remedy, to be exercised or not by every sovereignty, according to its own views of policy and humanity.” This amounts to an express admission that the remedy does not constitute the obligation of the contract. And a case may well be supposed where, under an exercise of the power here conceded to the states, all effectual remedy may be lost on certain contracts. Suppose an indebtedness incurred, while by the law the “ tools of the mechanic,” or. the “ necessary implements of agriculture,” or the articles of household furniture,” were not exempt. The state then passes a law by which they are exempted. They might constitute the only property of the debtor, and thus the creditor would have no effectual remedy left upon his contract. Yet the court concedes such legislation to be within the power of the states. This concession can only be supported on the ground that the remedy, is no part of the contract. For if it were, then its obligation would be clearly impaired by such legislation. And the motives of humanity and policy alluded to by the court, would furnish no justification for it; for the states are not at liberty to impair the obligation of contracts, no matter how strong the motives of humanity and policy, which may call for such legislation.

But the court continues: “ And althoughj a new remedy may be deemed less convenient than the old one, and may in some degree render the recovery of debts more tardy and difficult, yet it will not follow that the law is unconstitutional.” This again can only be sustained upon the theory that the remedy is not the obligation. If it were, it manifestly could not be rendered “ more tardy and difficult,” without being impaired. It is true, the court limits this concession by the words “ in some degree.” But can it be for a moment contended that this is a question of degree; that the states may impair the obligation of contracts in some degree, though not to an unlimited extent ? This will hardly be pretended.

The court then proceeds : "Whatever belongs merely to the remedy may be altered according to the will of the state, provided the alteration does not impair the obligation of the contractP I confess it seems to me impossible to reconcile this provision with the concessions previously made. Those concessions must be held to admit that the remedy is not the obligation; the proviso assumes that laws affecting the remedy .may impair the obligation. The two propositions seem to me repugnant to each other, and there is nothing in the opinion that explains the difficulty. This rule therefore, while conceding to the states the power to legislate upon and alter remedies, and make them more tardy and difficult, which can only be maintained upon the theory that those remedies do not form the obligation, yet stops short of the conclusion to which the concession logically tends, and reserves to the judicial power a discretion to revise such legislation and confine it within what the judiciary may deem reasonable and proper bounds.

I confess this has always seemed to me an extraordinary position, that the judiciary has the power to control the state legislatures as to matters admitted tó be proper subjepts of their legislation. Undoubtedly they may always limit such legislation by constitutional restrictions. But the substance of the position here assumed, seems to me to be this, that the remedy is under the control of the state; and, so long as its legislation only alters or impairs it, to what the judiciary deems a reasonable extent, then it is not within the constitutional prohibition; but when it does so to an unreasonable extent, then it is. And this is after all but a judicial discretion to revise legislation; and in my judgment, there is no authority for it in the constitution. It is engrafting upon that instrument a provision it does not contain, and makes it say not only that the states shall not pass laws impairing the obligation of contracts,but also that they shall continue in force reasonable remedies to which parties may resort in case the montracts are violated.

The rule here established seems .to be a ’halting between two opinions, one or the other of which must be correct, while no middle ground is tenable. Either the remedy forms a part of the obligation of the contract, or it does not. If it does, then it is beyond the reach of state legislation. If it does not, then it is entirely under the control of the state. And I think this view is supported by the two cases of Bronson vs. Kinzie, and McCracken vs. Hayward, taken together. For the opinion of the court in the latter case contains the following clause: “ The same power in a state legislature may be carried to any extent if it exists at’ all; it may prohibit a sale for less than the whole appraised value, or for three-fourths, or nine-tenths, as well as for two-thirds; for if the power can be exercised to .any extent, its exercise must be a matter of uncontrollable discretion in passing laws relating to the remedy which are regardless of the right of the plaintiff.” It Seems a little remarkable that this should in the next sentence be declared to have been “ the ruling principle in Bronson vs. Kinzie,” when in that case, the court expressly conceded to the states the power to pass laws that should, “ in some degree,” render the remedy “ more tardy and difficult.” We have then Bronson vs. Kinzie holding that the states have the power to alter the remedy, and McCracken vs. Hayward saying that "if the power exists at all,” it may be “ carried to any extent.” We have the former case holding that the states may exercise the power to some extent,” so as to render the remedy “ more tardy and' difficult;” the latter, that if it may be exercised to any extent, “ its exercise must be a matter of uncontrollable discretion.” The former was right in its concessions, the latter in its conclusions from those concessions.

I shall not enter into any lengthy examination of the question, whether the remedy constitutes the obligations of a contract It seems to me clear that it does not. The obligation of the contract is that inherent force, which the contrac itself has, to require the parties to abide by its provisions. This, state legislation can neither impair nor change. But this is obviously distinct and separate from the obligation of the remedy. The one arises from the contract itself, the other from the law. The one obliges the parties to comply with the terms of the contract, and the other requires them to make compensation for having violated it The one is created by the parties, and is under their control; the other is created by the sovereign power in pursuance of its views of policy and justice; and it is incompatible with its sovereignty, that parties by contracting under its laws, should have the power to withdraw them from its control, and perpetuate them at pleasure. The obligation of the contract travels with it wherever it goes; that of the remedy is confined to the jurisdiction whose laws furnish it.

But I will not pursue the subject. It is exhausted by the reasoning of Chief Justice Marshall in Ogden vs. Saunders, and that of Justice McLean, in his dissenting opinion in Bronson vs. Kinzie. And it is worthy of remark, that 'the latter, in his opinion, points out the unjustifiable use made of the case of Green vs. Biddle, 8 Wheat., 17, in the opinion of the majority. The question in that case arose under the compact between Virginia and Kentucky, and the language of the compact was, “ that all private rights and interests of land within Kentucky, derived from the laws of Virginia, prior to such separation, shall remain valid and secure under the laws of the proposed state, and shall be determined by the laws then existing in the state of Virginia.” Here it is very clear that any act depriving parties of the benefit of “ the then existing laws of Virginia,” would be “ a violation of the compact” But it is equally clear that a decision to that effect furnishes no support whatever for the position that a state law impairing the remedies given upon contracts, would impair their obligation, and thus violate the provision of the constitution. And it may fairly be deemed ground of surprise, that the supreme court of the United States should quote it for that purpose without making any allusion to the important fact, that by the compact the benefit of the existing laws of Virginia was expressly preserved.

I think the case of Morse vs. Gould, 1 Kern., 281, is also entitled to great weight in determining this question. True, it professes a willingness to abide by the determination of the supreme court of the United States, but at the same time it substantially disregards the doctrine of McCracken vs. Hayward, while keeping within that of Bronson vs. Kinzie. But upon the real merits of the question, it states the law, and defines the rights of the parties with great clearness. It says: “ The right which a creditor, by becoming such, acquires, is to have the use and benefit of the laws for the collection of debts, which may be in force when he shall have occasion to resort to them, to enforce his demand against the debtor.” And, again, after alluding to a number of authorities on the point, the court says: u These authorities are exemplifications of the principle that legal remedies are in the fullest sense under rightful control of the legislatures of the several states, notwithstanding the. provision in the federal constitution, securing the inviolability of contracts; and that it is not a valid objection to legislation on that subject, that the substituted remedy is less beneficial to the creditors than the one which obtained at the time the debt was contracted. That this principle is a sound one, I cannot entertain the slightest doubt.” The doctrine here stated settles, by logical necessity, the whole question ; for, if the states may make the remedy “ less beneficial,” the reasoning which establishes that right must also sustain the power to destroy it entirely, for if the remedy constitutes the obligation of the contract, an act making it “ less beneficial,” just as clearly impairs that obligation as one which abolishes all remedy. The man who robs me of a dollar, just as clearly robs me, as he who robs me of a thousand.

I agree therefore with this case, with Bronson vs. Benzie, and the multitude of others that might be cited, which show that the obligation of the contract and the remedy are entirely separate and distinct; and that the states' may rightfully legislate upon the remedy, change it, and render it less beneficial, “in respect to past contracts as well as future.” I agree with McCracken vs. Hayward, that “if the power maybe exercised to any extent, its exercise must be a matter of uncontrollable discretion.”

I know it is asked of what benefit is the prohibition against imparing the obligation of contracts, if the states by abolishing the remedy may as effectually defeat the rights of parties ? But the answer to this is that the constitutional prohibition extends only to legislation that impairs the obligation of contracts ; without attempting to place any restriction upon the power of the states, with respect to other legislation that might have an equally disastrous effect upon the rights of parties, and courts have no authority to extend it to such other legislation, upon the plea that it might have such effect. They are to interpret and not make a constitution. Chief Justice Marshall, in Ogden vs. Saunders, in answer to this same objection says: “ Our country exhibits the extraordinary spectacle of distinct and, in many respects, independent governments, over the same territory and same people. The local governments are restrained from imparing the obligation of contracts, but they furnish the remedy to enforce them, and administer that remedy in tribunals constituted by themselves. It has been shown that the obligation is distinct from the remedy, and it would seem to follow that law might act on the remedy without acting on the obligation. To afford a remedy is certainly the high duty of those who govern, to those who are governed. A failure in the performance of this duty subjects the government to the just reproach of the world. But the constitution has not undertaken to enforce its performance. That instrument treats the states with the respect which is due to intelligent beings, understanding their duties and willing to perform them; not as insane beings, who must be compelled to act for self preservation. Its language is the language of restraint, not of coercion. It prohibits states from passing any law imparing the obligation of contracts; it does not enjoin them to enforce contracts. Should a state be sufficiently insane to shut up or abolish its courts, and thereby withhold all remedy, would this annihilation of remedy annihilate the obligation also of contracts? We know it would not,” &c.

I have thus stated, without the time to do so in the manner I could have wished, my reasons for holding the act in question, as a mere regulation of the remedy, to be within the undoubted power of the state, and liable to no constitutional objection. If compelled to decide it upon the authority of the supreme court of the United States, I think it could be sustained within the doctrine of Bronson vs. Kinzie, but have great doubt whether it could be within that of McCracken vs. Hayward. The latter case seems to me to retract the concessions of the former, and to establish the principle that the remedies given by law at the time the contracts are entered into, constitute a part of them just as much as though they were inserted as express stipulations in the contracts themselves; and that therefore the states cannot change or modify them at all. I think the premises are untrue; but that, if true, the conclusion necessarily follows, and the position seems much more logical and consistent, than that which, while admitting that the remedy is separate and distinct from the contract, and subject to be altered, modified and impaired, « in some degree,” by state legislation; yet attempts to limit that legislation, by judicial discretion.

The court in Morse vs. Gould, evidently understood the doctrine of McCracken vs. Hayward as in conflict with that of Bronson vs. Kinzie, and as excluding any “ change ” of the remedy; though it passes it with the remark that it was “ unnecessary to go that length,” and characterizes it as “ an unwarrantable restriction upon the powers of the state governments.” I also so regard it; and I think this prohibition in the constitution has been stretched to an unjustifiable extent, and made to include legislation it was never intended to reach. . The states have been unable to exercise a wholesome dicipline over the powerful corporations they create, to change their laws for raising revenue, or to alter the methods of proceeding in their own courts, without having their action called in question, as being prohibited by this clause of the constitution, and in many instances unwarrantably restricted. And believing, as I do, that the státe courts with respect to the supreme court of the United States, are not inferior but co-ordinate, and that the judges of each must decide all questions that come before them, on their own judgment and conscience; and believing, as I do, that the doctrine under review, if carried to its logical results, would withdraw from the states a vast field of legislation, which the constitution has not withdrawn; I have felt it my duty to place on record my dissent from a principle, which would thus subvert so material a portion of that sovereignty, which the states have never surrendered.