Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1861-03-07

passed the 18th January, 1851 Inc t,,a
ty Of this Act has been raised, anu !. s',, +;s
duty of this Court to express It's oPinion oP0" 49,
question. +,o law in t,,a
Judge Haywood, great name 70 'he Jaw, IN t ',9
| case of linton rs. Harris-PecAs hepor's, 5lo'
says: that the sovereign az i. ss
| of whatever character they may be, may do All
th;ngs NOT naturally impossible. which it deems pro-
motive of the public welfare, except IN such lnstan-
| ces whereby the fundamental law OF me Nation
;ttar bv the mighty hand of the people, it is for
| hidden And in any instance where Legislative
rver ia questioned. it bounds over opposition, un-
less restriction upon that power in the particular
| instance can be clearly pointed out"
In the case of Fletcher Peck, 2 Cond, r. 80, it
is decided that the Court viii not declare law
constitutional, unless the opposition between the
Constitution and law be clear and plain 1t at all
] times a question of much delicacy, which ought
seldom, if ever to be exercised.
4 Judge Catro0, in the case of McCracken rs. Hay
wood. Howard. SIG, so expresses himself as TO
the deicacy of this question and under the circun-
stances Of that declines TO give opinion as to
the constitutonality of the law of Illinois, which
required the property levied on to bring twothlrds
of its appraised value before it shall be exposed to
| SALE 1t is the province of the Courts 10 eKpound
! and enforce the law of the land. To declare law
void and imperative is virtually the exercise OF a
judicial veto and that by implication, which should
never be exercised only cases of clear and pal
| pable violation of the Constitution. With these
1 lights before us--is this law then constitutional
1t is evident that the Legislature of Tennessee,
like the Legislatures of all other sovereign States,
do all things not prohibited BY the Consrtntlen
of this State or of the United States. 1t is an nhe
rent power belonging to the people, and delegated
to their Representatives which may be exercised in
all case provided, that power has net been suFren-
dered TO the general government, or prohibited by
] the Constitution. The Legislative power of a SOW
ereign State is much more enlarged and universal
than that of the Congress of the United States, for
| the latter can only exercise such power as shall
have been delegated BY the sovereign States to be
4 found IN the compact or the UnIon-
The law under consideration being general one,
operating upon all the citizens bringing themselves
within its provisions, may be regarded the law of
the land, if it does not in conflict with the Con-
stitlton, Art. l, Sec 20-"No retrospective law or
j law importing the obligation of contracts shall be
made" Our Supreme Court in early of
Townsend Townsend, Peck's Reports l-2l declare
those clauses should be taken together and
it means that retrospective law which impairs the
obligations of contracts shall be made. The latter
words relating equally to both the preceding subsan-
tals and therefore the is equivalent this:
No Retrospective law other law imparing the obi
CATION Of contracts shall be made 1t has been held
that this provision of the Constitution does ex-
tend to laws repeating former lsws-to enforce a
contract formally made-to make papers evidence,
which under the former law were not sueh-to sus-
pend computation under the Act of limitations for
a certain time past, during which a war existed. or
great epidemics prevailed, or no courts were in
being, for the disallowancs of land warrants I'M
fairly issued.
So diversified are the transactions of men, upon
which the public good requires posterior legislation
that 1t has given occasion for the passage of many
laws of this character. In fact, no government can
promote the general welfare without the power of
making retrospective laws. 1t not withheld from
any of the State governments and the genius of our
institutions founded on the VIII of the people, de-
maEd upon all proper occasions its exercise. Our
Legislature from time to time have departed
from the Mosaic law. and given new causes
for dissolving the marriage contract and none have
doubted the constitutionaiy of such laws. For in
stance: First A conviction of crime, which by
the laws OF the State, is decPeed to be felony, and
sentenced to confinement in the Penitentiary.
Second. That either party has attempted the life Of
the other by poison or any means showing malice.
Third, Refusal of the wife TO with her hus-
band to this State without sufficient eauSe, and re-
D ain ng absent two years Fourth. That the woman
pregnant at the time of the marriage, by ano-
ther person. These laws not only Retrospective,
but upon the facts being judiciay ascertained the
Court annuls the subsistng contract Of marriage.
The Code compiled by the eminent lawyers
Cooper and Meigs-has introduced various and new
provisions upon the statute of Limitations, withhold
ing any remedy whatever after the lapse of certain
periods, operating upon contracts area " eXlstng.
There no statute of limitation barring suits on
the bonds OF guardians, executors, sheris, clerks,
other public officers; upon the enforcing by
action the collection of judgments and DEGREES yet
the Legislature. by section 2776, withheld all rene
dy upon such bonds, judgmen or decrees after
the expiration of ten years from the accruing of the
action, and none have doubted the consttutonality
of these laws. The courts previous to the year
1919 had decided that the statute of II Is and 1881
only operated a bar in favor of the possessor,
who claimed under a deed or assurance of title |
connected with the original grant The whole coun-
try about to be involved in litigation and long
possessions were being surrendered and homes given
up and general ruin connected with the land titles
perVadng the country. The Legislature passed the
cd
the deed assurance of title was founded On the
grant not, and Judge Catrcn placed upon the
bench to give this construction to the law, which
gave peace and repose to society,
Then the remaining question is, does this law |
impair the obligation of the contract. If this law
gave equivalent other than money IT would i'm |
pair the obligation-such the law of 1920 which
required the creditor receive bank paper in pay
ment, otherwise the execution should be suspended |
for two years without security. The law under /
consideration authorizes the stay of all judgments
and DEGREES, fQr twelve months upon good security
being given. Our stay laws have never been de-
clared unconstitutional. If stay for eight months
Is good, why not one for twelve months! The third |
section does not operate upon the destroy
the lien created by the levy but merely postpones
the sale CT the property to time that the Legisla
ture thought reasonable, under the embarrassed
condition of the country | am of the opinion that
this Act operates upon the remedy, and not on the
obligation of the contract 1t is merely varying
the nature and extent of the remedy, leaving sub
stsntal and reasonable one, in view of the oondi- I
ton of the people. Is such law constitutional
In the case of WoOdfn Us. Hooper, Humphrey, |
1921. Judge Turley, one of the first legal minds
IN America in giving the opinion of tbs Court upon
the cOnstitutiOnality of the Act of 1912, which
abolished Imprisonment for debt, which was eff
cient, but barbsrous enforcement of contracts says
"a law which makes a contract invalid, or eXtin-
cuisines or releases it, is law impairing it. Nor is
this all, although there is distinction between the
obligation of the contract and the remedy upon it,
yet If there are certain remedies existing at the
time when it is made, all of which are wholly ex-
tinguished by new law, SC there remains no means
of enforcing its obligations and redress, such
abolition OF remedies operating IN preSeEti is also
mpairing the obligation of the contract No one |
will doubt that the Legislature can vary the nature
and extent of the remedies so always some sub |
stantye remedy be in fact left Nor can be doubt
q that the Legislature may prescribe the terms and
modes in which remedies may be p,Tsued.
Has the Legislature by this Act done anything
more than prescribe the and NODES in which
he remedy for the collection of debts shall be pur-
ueG? Mr.. J. Story upon the Constitution, 5O4 says
If party should be in Jail and give bond for the
prison liberty. and TO remain true prisoner until
awfully discharged, a subsequent discharge by an
Ict Of the Legislature would not impair the con-
raet, this would be lawful discharge in the
# the bond"
Let US apply these principles to the act under :
consideration. Our Supreme Courts say that the {
legislature may prescribe the terms and modes in
Which remedies may be pursued and such laws are ;
lot unconstitutional, Now, our Legislature being d
allied upon, an extraordinary occasion, in the s
nidst of great political and finahcial cPisls with
Jew to each, and honestly endeaEoring to promote
be general welfare, prescribed the terms and a
lodes in which remedies shall be pursued. First
III judgments and ceerees may be stayed twelve
,onths by good and ample security being given in
be nature of confessed Judgment. Second, That
he time of sale of property may be postponed to a
sasonable time by giving ample security fer the
eiYery Of the property, not diyesting any right L.
reated by the lien of the levy aud in case of no
wy being made, then stay Of execution for six o.
lonths ample security being given. Does not this W
ct operate exclusively upon the remedy and not m
pom the contract? Under the circumstances sur =.
1undng the country, Is it not substantial just .
I'd reasonable remedy Shall it be said that the Fl
ere fact of citizens contracting with each other
lat shall deprive sovereign State, through her Leg
lature from passng such laws as their wisdom, In
I'd sense of justice shall prescribe for the u