| Ark. | Jan 15, 1841
delivered the opinion of the court:
The question raised by assignment of error will be determined by the construction given to the several statutes relating to the State Treasurer, and regulating his duties, &c. By the schedule to the constitution (section 2), all laws then in force, in the Territory of Arkansas, not repugnant to the constitution, should remain in force until they expired by their own limitation, or be altered or repealed by the General Assembly; and section five, declares that, “All civil and military officers then holding commissions under the authority of the United States, or of the Territory of Arkansas, were authorised to hold and exercise their respective offices until they should be super-ceded by law;” consequently, the same officers continued in the exercise of their authority under the State government, in the same manner, and received the same compensation as before. The first General Assembly of the State was held in September, 1836; at that time, the Treasurer, by virtue of previous laws, was allowed, in addition to his salary, ten per cent, on the amount received by him in redemption of bounty lands, by the Auditor for the non-payment of Taxes, (S. and McCamp, 485, ’9). On the 30th of October, 1836, the General Assembly, in organizing the State government, by an Act, entitled “ An Act, affixing salaries to certain officers of the State of Arkansas,” declared that, “ The several officers, hereinafter mentioned shall receive, annually, and payable quarter yearly, for all the duties required of them by law, the following sums, to-wit: The Governor, two thousand dollars; the judges of the supreme court, each, eighteen hundred dollars; the judges of the circuit court, each, twelve hundred dollars; the Secretary of State, seven hundred dollars, with such fees as may be allowed by law; the Auditor of public accounts, seven hundred dollars; the State Treasurer, seven hundred dollars; the Attorneys of the several circuits, éách, three hundred dollars, with such other fees as may be allowed by law.” The language of the Act is positive. The Governor, the judges of the supreme and .circuits courts, the Auditor, and the State Treasurer, shall receive their salaries annually, and be paid quarter yearly for all duties required of them by law. But the Secretary of State and Attorneys of the circuits may, in addition to their salaries, receive such other fees as may be allowed by law. The acceptance of the office was voluntary; there could be no misconception of the obligations attached to it. On the 30th September, 1836, an Act was passed, declaring, “ That, in all cases where statutes shall be repealed, and the repealing statutes shall afterwards be repealed, the first statutes shall not thereby be revived unless by express words.” That the Act of 3d October, 1836, by affixing the salary of the Treasurer, and declaring it to be in full, “for all the duties required of him by law,” repealed all other statutes, by which any fees or perquisites were allowed for services performed, in discharge of any duty connected with his office, cannot, we conceive, be doubted. It is however, contended that the 13th section of the Act of November 3d, 1836, entitled, “ An Act, prescribing the mode of confirming titles to land, sold under the laws of this State, and for other purposes,” which provides, “That the existing Acts in relation to the redemption of, and collection of taxes on, military bounty lands, shall be applicable also, to entered lands, and lands of any other description, which may have been stricken off to the Territory or State, for the non-payment of taxes thereon,” &c., also revived so much of said Acts as allowed fees and perquisites to the Treasurer, for the discharge of the duties required of him by them. That, in construing statutes, the intention of the Legislature is a fit and proper subject of enquiry, is too well settled to admit of a doubt. This intention is to be collected either from the words, the context, the subject matter, the effects and consequences, or the spirit and reason of the law, and other Acts in pari materia. It may not, however, be amiss to state and keep in view some of the established rules on the subject. Such a construction ought to be put upon a statute, as may best answer the intention which the makers have in view, and this intention is sometimes to be collected from the cause or necessity of making the statute, and sometimes from other circumstances; and whenever such intention can be discovered, it ought to be followed with reason and discretion, in the construction of the statute, although such construction seem contrary to the letter of the statute. And such construction ought to be put upon it, as will not suffer it to be eluded. Bac. Ab. 1, 5,10, and authority there cited. The Act of 3d October, 1836, which limits the salary to seven hundred dollars, as a full compensation for all the services required by law, is clearly a restraining statute, as regards any other or further compensation; and here one of the rules we have laid down, applies with peculiar force: — That such construction ought to be put upon a statute as does not suffer it to be eluded. The cause of the enactment of the 13th section of the Act of November 3d, 1836, previously referred to, was to include a class of cases not embraced in the previous Acts, and to enable the State to receive the revenue due her. Legislative action, therefore, was necessary. This was done by extending the previous law to cover them, by which individuals could also retain their lands from the lein held by the State, for the taxes due. So far, the intention of the Legislature is apparent, and the cause and the necessity of the extension of these provisions, equally so. Would it be a reasonable construction, that even doubtful language should defeat the will of the Legislature, clearly expressed in the Act of the 3d of October, 1836, which, by declaring the salary in full of all services required by law, repeals all other laws then in force, by which any other or further compensation was given? Will it be insisted upon, in the face of the Act of the 30th September of the same year, which declares: That to revive a law, previously repealed, there must be express words to that effect? We think not. The frame and scope of all the Acts have been examined, their titles, preambles, sections, and provisions, compared and weighed. This has all been done with the care and attention which the subject demands; and we have come to the conclusion, that the Legislature expressly extended the existing acts in relation to the redemption of, and collection of taxes on military bounty lands, &c., so far only as to embrace all other lands which may have been stricken off to the Territory or State, for the non-payment of taxes due thereon. For the provision, as regards the fees and perquisites formerly allowed the Treasurer, having been repealed, was not, at the time of the passage of this act, existing, and therefore would have required express words to that effect, before the law would reach and revive that which had ceased to exist.
We have endeavored to give the several acts of the General Assembly a fair and just interpretation, upon the established rules of construction. Courts of law cannot consider the motive which may have influenced the Legislature, or their intentions, any further than are manifested by the statutes themselves. The Treasurer could not, therefore, lawfully receive any other compensation than the salary of seven hundred dollars, allowed by the act of 3d October, 1836. We are aware that the duties imposed upon the State Treasurer were, at the time, onerous, and the responsibility great; and were of that character as to render it evident that the person who accepted the office, with the legal compensation, must have done so from motives of pride or mistaken notions of its pecuniary value. But this Court can neither console the disappointed nor relieve the distressed, in any other way than by faithfully administering the law, and thereby securing to all their rights and privileges. At the time Woodruff was elected Treasurer, and, with the other plaintiffs in error, executed his bond for the performance of the duties of his office, there was no statute imposing any pecuniary penalty upon any public or private debtor for the retaining or refusing to pay over money, other than the act of November 3d, 1836, entitled “An act specially defining interest on money, and regulating the recovery thereof,” which provides:' That all recoveries, contracts, and legal liabilities for the payment of money, when there is no express agreement to pay interest, shall bear interest at the rate of six per centum per annum, from the time the same shall be recovered or become due; and in all cases where the interest is, or shall be, expressed in the contract or agreement between the parties, any rate of interest expressed or agreed, and not exceeding the rate often per centum, per annum, shall be legal; and the Courts shall, in all cases, ascertain the rates of interest to be recovered, as aforesaid, and the time from which, and until which, the same shall be computed and recovered, and express the same in the judgment; and the same shall be expressly stated in the body of the execution to be issued on any such judgment, and shall be collected with, and in like manner as the principal debt, damages, and costs; and no judgment shall bear a greater or less rate of interest than that agreed upon or fixed by law, as aforesaid. So that at the time of the alleged indebtedness, (viz: 26th October, 1837), this was the only law in force governing the rate of interest or damages, upon recoveries, contracts, and legal liabilities for the payment of money.
And that there was a legal liability to pay, arising upon the obligation of the plaintiff in error with the State, cannot be doubted. “A judgment,” says Blackstone, in his Commentaries, (3 vol., 396,) “is the determination and sentence of the law; the conclusion that naturally and regularly follows from the premises of law and fact.” If this be the law, and no one will, we presume, controvert it, the conclusion that follows from a judgment in this case, as far as the plaintiffs in error are interested, in the absence of any other statutory provisions, would be, that they are only bound to pay the amount which was found due tbe State, with interest at the rate of six per centum per annum. If •this is conceded, it is brought within the act of the 3d November, 1836. Why is it, however, that we find judgment is entered with damages, or interest, (by which name it is called), at the rate of twenty-five per centum per annum, from tbe 28th October, 1837, until it shall be paid ? Why make this case an exception? The General Assembly had provided the mode of bringing suit against persons indebted to the State. They had done the same when one individual was indebted to another. They had left both classes to be governed by the same general rule of law, and, by making no distinction at the time, declared the legal consequences should be the same in the one case as in the other. We are told there was authority for it, and are accordingly cited, first, to a resolution of the General Assembly, of the 28th February, 1838, by which it was resolved, “ That the committee on the books of the Auditor and Treasurer, enter on the books of the Treasurer an order, directing him to pay into the Principal Bank of the State of Arkansas, to the credit of the State, the sum of twenty-one hundred dollars and forty-three cents, the sum retained by the Treasurer as commission of ten per cent, on the amount paid into the Treasury for the redemption of lands;” and “That the committee enter on the books of the Treasurer an order, requiring the Treasurer to pay over to the Bank the sum of two hundred and ninety-four dollars and seventy-five cents, the sum retained by the Treasurer out of the surplus revenue, over-what was necessarily expended in bringing the money from Natchez;” and “That the committee report to this General Assembly the compliance or non-compliance of the Treasurer with the requisitions of the foregoing resolutions.” Also, to the 13th section of an act of the 5th of March following, entitled, “An act making certain appropriations,” in which the General Assembly declared, “That William E. Woodruff, Treasurer of the State, shall pay twenty-five per centum per annum on the sum of two thousand three hundred and ninety-five dollars and eighteen cents, or such sum as shall be found due the State by the decision of some competent judicial tribunal, the sum found in his hands by the committee on the books of the Auditor and Treasurer, which he refused to pay over in compliance with the resolution of this General Assembly, approved the first of March, 1838, from the sixth day of October, 1837, until the same shall be paid over to the Bank of the State of Arkansas; and the Treasurer pay twenty-five per cent, per annum on all the money that he may unlawfully retain in his hands over ten days after the same is received by him, provided, it shall not be decided by some judicial tribunal that the said Woodruff is entitled to the same.” And also, on the 13th December, the same year, another-act was passed, entitled, “An act requiring the Prosecuting Attorney of the fifth judicial circuit to bring suit,” by which it was enacted, “ That it shall be the duty of the Prosecuting Attorney of the fifth judicial circuit of this State, and he is hereby required, to bring suit against William E. Woodruff, late Treasurer of this State, on his official bond as Treasurer, for the recovery of the sum of two thousand three hundred and ninety-five dollars and eighteen cents, and the damages on the same, agreeably to the provisions of the act of the General Assembly of the State, approved the 5th of March, 1838.” Whatever doubts may have been entertained as to the intentions of the Legislature, under the act of 3d of March, in imposing the twenty-five per cent, per annum, were dissipated by the act of the 13th December, where they imperatively command the Attorney of the State to bring suit on the official bond, thereby showing conclusively their object to extend the liability to the security, and engraft the damages upon their undertaking. It is not necessary to determine how far Woodruff himself would have been liable, in the absence of the act last referred to; nor shall we attempt to inquire into it; for the whole must stand or fall upon the official bond, and. all, or none, are necessarily bound. The allegation in the declaration is, “ That Wood-ruff had been duly elected Treasurer of the State, and the other defendants bound themselves with him, in a certain penalty, that he, the said Woodruff, should perform all the duties then required, or which should be required, by law, to be done as Treasurer of said State: if he did not do so, they bound themselves to pay the debt, and' the damages and costs incurred for the detention of it. The duties were fixed by law, with the privileges and compensation. It is not our intention, at this time, to extend our inquiries, or to give any opinion, as to the precise meaning of the term obligation, or as to how far or to what objects it extends, nor by what bounds it is limited; but simply to ascertain if this be such a contract between the plaintiff and the State, as to bring them within the constitutional inhibition, that it shall pass no ex post facto law, or law impairing the obligation of contracts, or either of them. The term contract comprises, in its full and more liberal signification, every description of agreements, obligations, or legal ties, whereby one parly binds himself, or becomes bound, expressly or impliedly, to pay a sum of money, or perform or omit to do a certain act. It is contended, by some writers, that the Constitution distinguishes between a contract and the obligation of a contract. Judge Story says, “The latter is the law which binds the parties to perform the agreement.” The law which has this binding obligation, must govern and control the contract in every shape in which it is intended to bear upon it. Then, if a party contracts to pay a certain sum, on a certain day, it can make no difference whether the money is to be paid to an individual, to a company composed of individuals, or to the State itself. It is to the civil, as contra-distinguished from the moral obligation, which the Constitution has in view, when it declares, “ it shall not be impaired.” It is to reach in all cases where there is a legal right conferred on another. That contracts cannot be applied to a State when acting in its corporate capacity, is a sophism which we are by no means prepared to admit. It is an every day occurrence, and is often necessary to carry out the objects of the Legislature. It contracts for its public printing, its buildings, and the many objects indispensable to the public safety and the due administration of justice. Rights once vested, privileges once granted or sanctioned by the law of the State, if within the constitutional limits, may, it is true, be forfeited, but cannot be arbitrarily divested or withdrawn by any future legislation; and they will be protected in the possession of one and the enjoyment of the other. The principle, that a State cannot contract with citizens, and that the contract is not binding upon both, was, we think, not long since, successfully exploded. In our own State, it is not only of frequent occurrence, but recognized by the Constitution, and regulated by statute, (Rev. Stat., 742), in authorizing suits to be brought against the State, directing the mode of proceeding, and making the judgment binding upon the State. Sovereignty alone is in the people, and they, by a written Constitution, have limited the legislative powers, by prohibiting them from passing any law, in whatever form, impairing the obligation of a contract. As to what may be deemed impairing the obligation of a contract, in the sense of the obligation, cannot be better elucidated than in the words of Judge Story, (Stores Commentaries, 3 vol., 250:) “ It is perfectly clear, (he says,) that any law which enlarges, abridges, or in any manner changes the intentions of the parties, resulting from the stipulations in the contract, necessarily impairing it, the name or degree in which this change is effected, can in no respect influence the conclusion; for, whether the law affects the validity, the construction, the duration, the discharge, or the evidence of the contract, it impairs its obligation, though it may not do so to the same extent in all the supposed cases. Any deviation from its terms, by postponing or accelerating the period of its performance, which it prescribes; imposing conditions not expressed in the contract, or dispensing with the performance of those which are a part of the contract, however minute or apparently immaterial in their effect upon it, impair its obligation.”
Such are the views entertained by one of the most profound and elementary writers of the age. It is not intended, at this time, to go into a full exposition of the obligation imposed byj-he acceptance of an office, or the extent of the powers of a State to make contracts in general, or the consequences resulting from them. There is certainly a marked difference between a compact and a law: the former is an act of two or more parties, which produces due obligation on both, by their own immediate or direct consent; the latter is an act of a superior, which commands, permits, forbids, announces rewards and punishments, and provides for the general good, by general laws. A law provides for the future only, and can have no retrospective operation, or impair the obligation of contracts. The question then recurs, as to bow far the case of the plaintiffs in error is brought within the prohibition as contained in our Constitution — that no law impairing the obligation of contracts shall be passed.
We think that we have already shown conclusively, to our minds, at least, that there was a contract, between the State on the one side and the plaintiffs in error on the other, that Woodruff should perform all the duties then required, or which should be required of him by law, as Treasurer, or, in default thereof, they would pay all the damages sustained, to the extent of the bond: and the State then permitted him to enter upon his office, and enjoy all its emoluments, rights, and privileges. If the Legislature could, on the fifth of March, 1838, enact, that the plaintiffs in error should pay twenty-five per centum per annum, from the time the debt of Woodruff to the State became due, from a period antecedent, (26th October, 1837,) notwithstanding the general statute, that all recoveries, contracts, and legal liabilities should bear but six per centum per annum, why could not the same rule be extended, with equally as much justice, to all her debtors, no matter under what circumstances the debt may have been contracted ? If it could be done in this case, why may not the same rule be extended to bank debtors, or from one individual to another?
Suppose the Legislature had, by law, on the 5th of March, 1838, declared, that each and every individual who was indebted to the State, to the Real Estate Bank, or to the Bank of the State, on the 26th of October, 1837, should pay interest, or damages, at the rate of twenty-five per centum per annum, until paid, notwithstanding the law, at the time the debts were contracted or became due, gave but six per cent.? We apprehend there would have been a general concurrence, on the part of the community, that the exercise of such a. power was unwarrantable, and contrary to every principle of law and justice. Yet the principle is the same. If the power was rightfully exercised in the case now under consideration, it can be exercised in any other, and may be retrospective, without limit, as to time, or the parties interested, or the object upon which it is to bear. That Government can scarcely be considered free, where the rights of individuals are left solely dependent upon a legislative body, without any restriction. The fundamental principles of government require, that where one of its citizens enters into an obligation to perform any stipulated duty, the penalties for a failure on the one hand, or an abridgement of bis privileges on the other, should neither be increased nor diminished. Every reason of justice and policy unites to prove that, at no future period, should a legislative body be authorized to attach punishment for a failure which did not exist when the act was done, suffered, or committed, or enact any law changing or in any way altering the terms of a contract. Such a doctrine would be unjust to parties, ruinous in its consequences, and contrary to every principle of sound legislation. There ought to bo certainty in the acts of a legislature, as far as they have an influence on the rights of individuals, as well as uniformity in the bearing they are to have in their interests. This uniformity may extend to the whole community, or to a certain class of cases, or for the non-performance of certain specified duties. Therefore, a law that imposes a certain fine upon all who are guilty of a certain offence, would be general in its character and bearing, and no one would have cause of complaint. But it is manifestly unjust, that where there has been an action of the one legislature upon any subject matter, and a declaration that, in every instance of a breach of the duty specified, there shall be certain damages sustained, or penalties imposed, that another, composed of different persons, and entertaining different views, should afterwards be permitted to select, out of the whole community, one individual, and make him the subject of retrospective legislation, thereby indirectly declaring that in his particular case there is an unusual degree of moral turpitude, and that a punishment not at the time of its commission attached to the offence, and to which no one else in society similarly situated is subjected, shall be inflicted upon him. It is in effect saying, that their predecessors having reposed an unusual degree of confidence in the person, and deceived as to his integrity, or mistaken in his capacity, they will therefore impose upon him an unusual penalty, and direct that it shall be binding from an antecedent period, when they themselves had no power to declare the public will. History gives us too many deplorable instances of tyranny and oppression by legislative bodies, which their successors have endeavored to remedy, by striking them from the statute books; and the Courts have often been compelled to interfere between the people and their legislators, to save them from the ruinous consequences caused by the exercise of abused or usurped powers.
It is repugnant to every principle of justice, to take by law the property of one, and give it to another, by arbitrary rules. Blackstone treats it as a settled rule, that all laws are to commence in future, and to operate prospectively; and even in England, where the Parliament is almost omnipotent, Lord Coke says, that “ Their acts are to be so construed, that no man who is innocent, or free from wrong or injury, shall, by a literal interpretation, be punished or endamaged.” The same doctrine is recognized in all the English and American Courts. Prospective enactments are always, to a great extent, experimental; there is but little light for their guidance, but the history of the past; and the consequences cannot always be foreseen nor prevented at the time. Therefore, the necessity for the exercise of similar powers by their successors, to remedy the defects of previous laws. Laws having for their object clemency and mercy, are generally wise, laudable, and just. But for a Legislature to say their predecessors were too moderate in their views, too lenient to the frailties of others, or that they lacked the capacity to foresee the consequences resulting from their acts; that they have permitted this man to escape without sufficient punishment, or the other without any; and then go on and declare what ought still to be inflicted in the one instance, or increased in the other, would at once strike every mind of ordinary intelligence as a power incompatible with the safety of our institutions. Would this community — would any free people recognize su'ch principles of government, or the exercise of such powers? Where would be the security from oppression, from unjust and unusual punishments? What certainty would there be for the continuance or enjoyment of any of their rights? For the principle, once admitted, cannot be limited. 5Tis the Courts, with the independence and fearlessness which are expected from them, without regard to consequences, or being influenced by popular feeling, will interfere, and throw around the victim the sacred shield 0/justice, impenetrable alike to the shaft of executive or legislative power. If a Legislature can declare an act, which, at the time of its commission, was innocent, an offence against public faith, and assign to it a punishment; or if they can increase, or in any way change the responsibility of a party, may they not with equal justice declare that certain property belongs not to one man, but to another? Unwise legislation is often unequal in its bearing and consequences; but if in accordance with the letter of the Constitution, the Courts cannot interfere otherwise than to carry out and enforce the will of the people, expressed through their representatives. But illegal legislation is caused by a mistaken view or usurpation of powers, either expressly prohibited, or not contemplated by the charter from which their authority is derived. ’Tis then the other co-ordinate branch of the Government must declare the extent of those powers, and how far they have been exceeded.
All legislative bodies are liable, from their number and the peculiar circumstances by which they are surrounded, to err in their views of the effects and consequences of their own acts. They are governed by the same principle as the other co-departments. The great object with each and all, is to secure the life, liberty, and property of its citizens. The Courts, however, being more deliberate in their investigation, with the history of the past before them, as regards the legal consequences by which their enactments must be followed, removed from scenes calculated to exercise any influence over them, and wholly independent in their judgment, are empowered to interpret as well as enforce the public will, when legally expressed.
It is always with reluctance that we so far interfere with the General Assembly, as to declare their acts void. It is, however, a duty which, when properly presented, we are not at liberty to decline. Should we hesitate to meet it and declare the consequences, we should feel that we had thrown down one of the strongest guards of the citizen against the encroachments of legislative authority upon his rights and interests. We cannot pass it by because it is doubtful. No matter what may be the doubts or difficulties with which a question is surrounded, it must be decided when it arises in judgment. We have no more right to decline the exercise of a jurisdiction which is given, than to usurp that which is not given. The questions now under consideration have had the most mature deliberation and rigid investigation. We have had all the lights that able discussion and numerous authorities can give us; and are of the opinion, that so much of the second section of the act passed 5th March, 1838, entitled “An act making certain appropriations,” as enacts “That William E. Woodruff, Treasurer of this Stale, shall pay twenty-five per centum' per annum on the sum of two thousand three hundred and ninety-five dollars and fifteen cents, or-such sum as shall be found due the State by the decision of some competent tribunal, the sum found in his hands by the committee on the books of the Auditor and Treasurer, which he has refused to pay over in compliance with the resolution of the General Assembly, approved the first of March, eighteen hundred and thirty-eight, from the twenty-sixth day of October, eighteen hundred and thirty-seven, until the same shall be paid over to the Bank of the State of Arkansas,” is in conflict with so much of the act of November 3d, 1836, entitled “An act more specially defining interest on money, and regulating the recovery thereof,” as enacts “ That all recoveries, contracts, and legal liabilities for the payment of money, where there is no express agreement to pay interest, shall bear interest at the rate of six per centum per annum, from the time the same shall be recovered or become due; and that no judgment shall bear a greater or less rate of interest than that agreed upon or fixed by law;” which determines the extent of the liability of the plaintiffs in error, for the breach of their contract, as laid in the declaration, which it was the avowed object of the act in question to increase; and so far it must be regarded as being within the prohibition of the Constitution of this State, and of the United States, that no law impairing the obligation of contracts should ever have been made. The breach in the declaration is sufficient, and avers all the material facts necessary to a recovery. The allegation relating to the twenty-five per cent, per annum, was unnecessary, and, in the opinion of this Court, ought to be stricken out, as wholly foreign and impertinent, as the enactment purporting to give it, and by virtue of which it is claimed, is void. It can therefore only be considered as surplusage; and as, without it, enough is left to show there was cause of action, it will not vitiate that which is good. And the judgment of the Circuit Court having been given for the twenty-five per centum per annum, under the act of the Legislature herein declared to be void, is reversed.