The Nashville daily union. [volume] (Nashville, Tenn.) 1862-1866, 1865-10-14


/. contract, the very case arises which we sup
= pose to be within the Constitution. II
leaves the obligation untouched, but with
r IDS the remedy, or affords one which !
g merely nominal, IL is like all other cases q
misgoyernmeBt, and leaves the debtor still
liable 10 his creditor, should he be found
or should his property be found, when tn
laws afford a remedy.
I We perceive then, no reason for the opin
/ ion that the prohibition 70 pass any lsv
% ! lmpalrIng the obligation of contracts, is in
, compatible with the fair exercise OF tina
discretion, which the State Legislature
, po sess in common with all governments, &,
regulate the remedies afforded by their owr
courts. We think that obligation snd rem
edy are distinguishable from each other
that the first is created BY the act Of the
parties, the LAST is afforded BY Government
The words Of the restriction we have been
eonsldeClng. sarrstenauce, we think, this
| IDEA No state shsil 'pass any law impair
ing the obligation of eontrs,rs, 1ihsss
words seem to us 10 Import that the obliga-
ton Is intrinsic that b is created BY the
contract Itself, not that it is dependent on
the laws made 70 enforce it."-le Wheaton,
S50-S54 Curtis, 2ll-2I4.
In the same case, Justice Thompson, who
was one Of the majority that decided il,
while delivering his Opiuion nses this Ian
gusge, The mode and manner and the
extent to which property may be taken in
satisfaction Of debts, must be left 70 the
| sound discretion Of the Legislature. and
regulated BY its views Of policy and expe-
dlency in promoting the general welfare Of
the community, subject to such regulation.
| Il was the policy Of the common law, under
/ the feudal system, 20 exempt lands alto
| gether from being seized and applied in
satisfaction Of debts; not even possession
could be taken from the tenant. There
| can be no natural right growing out OF the
relation Of debtor ana creditor that viii give
the latter an unlimited claim upon the pro
| perty OF the former. 1t is a matter entirely
Tor the regulation Of civil society, nor is there
any fundamental principle OF justice grow
| ing ont Of such relation, that calls upon
! Government TO en- 'orce the payment Of debts
TO the uttermOst iaJthing which the debtor
| may possess; and tina. the modification
| and extent Of such liability is q subject
/ within the authority of State legislation,
| seems to be admitted by the uninterrupted
| exercise Of it. 1t may be safely affirmed that
| in most, if not ali, the States, some limiia-
| ton Of the right Of the creditor over the
/ property Of the debtor has been established.
| Do these statute regulations impair the
/ obligation of contracts? l presume this
| will not be commended for" Il Wheaton 500,
/ Z Curtis IFS.
Mr.. Story, Com. on Coust., Book III,
/ chapter xxxiv, 1879, says, although there
is distinction between the obligation Of
| contract and a remedy upon It, yet ID
| there are certain remedies existing az the
/ time when it is made, all Of which are
afterwards wholly exiting pushed by new
/ laws, SO that there remains no means Of
/ enforcing its obligation and no redress;
such an abolition Of remedies operating IN
al 1Hr
/ tiou of such contract. But every change
and modification Of the remedy does not
/ involve such a consequence. No one VIII
/ doubt that the Legislature may vary the
/ nature and extent Of remedies, so always.
/ that some substantial remedy be in fact
| left. Nor can it be doubted that the Legis-
/ lature may prescribe the times and modes
/ in which remedies may be pursued and
| bar suits not brought within such periods,
/ and not pursued ia such modes. Statutes Of
/ limitations are Of this nature and have
never been supposed to destroy the obhga-
tion Of contracts, but TO prescribe tho time
| within which that obligation shall be en-
| forced by a SUIT; aud in default % deem
/ it either satisfied or abandoned. The obi
/ CATION to perform q contract Is coeysl
/ with the undertaking 70 perform 10. IL
! originates with the contract itsclf, aud
| operates anterior 10 the time OF performance.
I The remedy acts upon the broken contract,
aud enforces a rs-existiug obligation"
These autho tiles seem 10 Us to establish
the following propositions:
| That contracts, though regulated by law,
are the act Of the parties, end existing laws
| form no part Of them that the agreement
/ Of the parties, not the law, constitutes their
/ obi gation.
That the obligation Of the contract once
/ established, it cannot be abrOgated or re-
| Taxed by State legislation.
/ That there is an essential and substantive
/ distinction between the obi cation Of con
| tract, and the means whlcb government
may furnish to enforce it. The latter con-
| stitutes the remedy
| That a prohibition to pass any law i'm
| pairing the obligation, does not imply pro
| hibition 10 vary the remedy.
That the Legis aturc may in their discre-
/ ton, vary the nature and extent Of RENE
| dies, so always that some substantive rem
| edy be in Tact left.
This brings us 10 the examination Of the
/ statute under consideration, and the sppli-
/ cation 10 10 Of these principles. In conduct
/ ing our inquiries We derive what assistance
| we eau from the previous lablrs Of The court.
/ The legislation Of the Stale he's not been
I such as ofteu TO require this course OF Iuves-
/ tigation. Our attention has been Invited
/ by counsel 10 the ca Of Townsend vs..
/ Townsend, Peck ], IS controlling the decis-
/ ion Of this. That case involves the consti-
/ tutionalitv Of three acts Of the Legislature
| passed in 1919 and one passed in 1920. They
| are all Of similar import, and the following
NAV be taken 20 illustrate the character Of
the whole. All involved the ssIas priucI-
| pie, indeed are nea ly Identical in terms.
"Bs Il enacted. ETC., That when any bank
! in the State has or shall obtain judgment
| agsinst any persons or persons, I o clerk Of
any court, nor an Justice Of the Peace in
this State, shall hereafter issue any execu-
| ton on such judgment until two years irCm
the time Of the rendition Of such judgment
shall have elapsed, unless said bank by its
attorney or Bgent properly authorized there
to shall endorse on the execution that notes
| on the banks thus Obtaining Judgment viii
be taken in discharge ana payment OF such
| execution, in edition 70 the notes Of the
Bank Of the State Of Tennessee and its
branches. and the Nashville Bank aud is
| branches. and such other bank notes az may
be ct par in said last mentioned banks"
The other statutes impo-e the same re-
strictons upon all judgments, whenever
and BY wh0ms0ever obtained. They were
declared unconstitutional and void. 10 D. a
general rule that the positive authority Of
| decision is coeXteusiye only with the
D
ninshield, a " hea 90, I22 To this extent we
recognize the authority Of this decision.
| The acts in question were manifest viola
tiou Of the constitutional inhibition 20 the
States making anything but gold aud sl-
yer coin a tender in payment OF debtsi "
| the subject Of tender being Withdrawn from
the states. end committed 90 the general
Government So the court held, treating
the suspension Of execution as Penslty in
hicted upon the creditor for refusing 20 re-
ceive baf notes for his debt. With this
CONCLUSION We are satisfied tis true that
the Court argues q violation also Of the pro-
hibition "to pass any law impairing the OBJ
legation Of contracts" Having slready de-
cided the uncoustitutionality Of the acts.
.supon 8 correct Interpretation Of the clause
prohibiting tender laws nothing further
was necessary. The Court holds that "the
law is the source OF the obligation, and the
extent Of the obligation is defined by the
law in use at the time the contract g. made
This doctrine we have seen is reuudiated
BY the United States in the case q Ogden
W Saunders. We yield 10 this authority,
and IN ooi-g 90 must abandon the couclu-
81 n that the obligation Is impaired By
law which merely varies the extent Of The
remedy. The court further holds that
though 0ths Legislature may alter rene
dies. thew must rot, so far o. regards ante
eedent contracts, be rendered less eficacious
or more dilatory than those ordained By
the law in being when the contract was
made. Il such alteration be the direct and
special object Of the Legislature sppsrent
ia a. sct msde for the purpose" This
princiule was not essential o. the decision,
and was subsequently, deoied BY the Court
III The case Of Wooden We Hooper, 4 Hump.
Is. The Legislature ia ls42 aholl-hed the
writ Of capias I'd saffgfacirHdru, and took
away forever from the creditor the right %
imprisou the body % his debtor. The plan
tiff insisted that this act impaired the obi
patton Of his contract made previous % e.
passazo. and thereiors could have no obi
Fatorv force inalis case. He urged this
doctrine from the opinion IN Tow1ssnd W.
Townsend, and itisted that the set Of 1872
susnended or abolished the only Efficient
rtmedy IN his case forever. Ihe Court
be d upcn the authority Of the Supreme
Court Of the United States, and IN dis
regard Of the doctrine asserted ia
Townssd IS Townsend, chat she right %
imprison a debtor is no part Of the coatraet, /
and be may be released from imprisoument
without impairing it, Obligation, and
cha the states have right " regulate or
abolish Imprisonment Tor debt a. q part Of
the remedy for enforcing the pertgrmanca
Of contracts, Mason vs. Halle, II v heatol
500 and declared that though the Lssiaia-
tuEe could lot sxtinguish al remedies eH-
iEtllE when ( c1utra-t Was made - g %