The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1869-02-13
parties, resulting from the stipulation in the con-

cipie intended to be established by the constitution
was the inviolabiiy of the obligation OF contracts
as the obligation existed and was recognized by the
laws in force a, the time the contracts were made
Whether the law processes to apply to the contract
itself or to regulate the remedy. 1t s equally within
the true meaning of the constitution, Il 1t In effect
lmpairs the obligation Of exiting contracts.
In Green vs.. fiddle, 9th Wheaton, 381, the court
paid: a right to land includes the right to enter
upon It, and to- recover possession where withheld
Nothing could be more clear upon principles OF law
and reason than thai law which denies to the
owner of land remedy to recover possession OF II
when withheld by any person, or clogs his recovery
of il by restrictions conditions tending to d.
minish the value of the thing recovered iupRirs his
right to on interest in the property the ren edy
afforded be qualified and restrained by conditions OF
any kind the right of he owner may tndee subssf,
but Il is impaired and rendered insecure according
to the nature and Q, tent OF such restrictions"
Iu Bronson vs. Kirzie, LIST Howard, 5ll, the venH-
rabc Chief Justice Tanev said I" Whatever belongs
merely to the remedy may be altered according TO
the will of the tate provided the alteration does not
impair the Obligation of the contract. But II tnat
effect is produced i Is immatera whether 1t Is done
by acting on the remedy, or directly on the contract
itself In either case 1t is prohibited BY the consti.
tuition. = II Is manifest that the obhga-
tou OF contract ana the rights of party under 1t
may in effect be destroyed by denying remedy
altogether or may be seriously impaired by BURDEN
ing the proceedings with new conditions and re-
strictions, SO as to make tho remedy nardly worm
citing Mr. Justice Blackstone: "rhe remedial part
of the law Is so necessary consequence OF the de-
earatory and ctory parts that laws must be very
vague and imperfect uithout 1t, for In vain would
rights bs declared-in vain directed to be observed
ifthere were no methoi OF recovering and asserting or
,as of the municipal law" resumes the Che Jus.
tice, (which protects the right and the obligation
by which 1t enforces and maintains IT. 1t Is this pro-
lection which the clause il the cons1tu ion now In
question manly intended to secure and IL Wouiu oe
of who
framed IT. to suppose 1t was designed to protect
mere barren and abstract right without any practical
operation upon the business Of liie."
In McCracken va. Hayward I'd Howard, coo, tho
Supreme Court said: "Ihe Obligation of contract
consists in its binding force on the parties who
make It. This depends on the laws in existence
when 1t Is made. These are necessarily referred 10
in oil cost acts, and torn part OF them, ns onerl
the measure Of obligation to perform them by one
party, and the right acquired by the other. There
can be no other standard i,y which 10 understand
the extent of either, than tnat which the terms OF
the contract IL dcate according TO their legal setlso
meaning. When 1t becomes consummated the INV
defines tue duty and tho right compes one party to
perform tho thing contracted for, ana gives the otner
the right TO enforce the performance o. ne Teme1'es
then in force.
Irany subsequent law affect or diminish the duty,
impair tho right 1t necessarily bears on the obi
CATION of the contract in favor of one party to the in
jury OF tdo other. Hence any law which, in It's ope-
ration amounts to o denial or obstruction OF the
rights accfuing by contract, though protesting to
act only on The remedy IS dir, city obnoxious TO the
prohibition If the constitution This principle is so
clearly stated and fully settled In Bronson vs. Kin
ze that nothing remains to be added 10 the reason
ing Of the court or requires reference TO any otner
authority than Is therein referred TO- Alludins TO
the case then under cons deration, the court said
1ha obliga ion Uf the contract between the parties
In this case was to perform the promises and under.
taking contained therein. The right OF the plalnhh
was to damages for tho breach thereof to brtDg suit
L. k,l,n or,1 onrn q
IN execution against theaefendant II the judgment
was satisfied pursuant TO the existing laws Of Iinols
These laws giving these rights were so perfectly
binding on /: defendant and as sach part Of the
ntract If theJ hai becn set forth in its sapua-
tious Ia the very words the law relating to judg
ments and executions
Any subsequent law which denies. obstructs or I'm
pairs this right by superadding the condition OF the
sale. affects the oh igaton Of the contract for 1t
can only be enforced by the sale OF the defendants
OF sach SAFE the Tse rsa
power in State Legislature may be carried to any
extent ii il exists ut all. II the power Gun be eIer.
cised 10 anY extent its exercise must be matter OF
unc controable discretion in passing laws relating to
the remedy whioh are regardless OF the effect on the
right Of The plaintiff"
IL turran va. the State Of Arkansas. 18th How
ard, 31e the same court says: "One OF the tests
tina; contract has been impaired. is that Its value
has, by legislation, been dim nished. It is not BY
the prohibition ef the constitution to be impaired
ata'l This is not question OF degree. or manner,
or cause bub of encroaching In any respect on Its
obigat on, and dispensing with any part Of its
force." = 4 Mr.. Justice Curtis in the
came case says: at ty no means follows Iecause n
law affects only the remedy that 1t does not impair
the obligation Of contract. The obligation OF the
ntruet in the sense in which these words are used
IN the Constitution Ia that duty OF performing 1t
which is re:oeniz.d and enforced by the laws: md
If the law ia changed that the means OF enforcing
this duty are materially impaired. the obligation OF
Iz-- ai,,,k 4,
Judge Woodbury., OF the Supreme Court bef re
which This subject came under consideration, in the
case of the Planters Bank vs. Sharp Howard, 32
saii : "When every form Of redress on contract l.
taken away 1t will be difficult to Low the obliSa.
ton of it is not impaired. And il
pre- Tossing to alter the remedy only the duies and
rights Of contract itself are changed or impaired, 1t
comes just much within tho spirit OF the consti-
tuional prohibition. Thus. II remedy Is taken
away entirely as hero. or clogged by condition oi
any kind, ihe right of the owner may indeed subsist,
and be acknowledged, but it IL impaired"
In the Case of hawthorne vs.. Calf Cd Wallace, 10,
the same court, by Mr.. Justice N,l.on. recognized
and rc.afarmed the principles decided IN Bronson vs..
Rinz.e. and the several subsequent eases of thlt
cluss He held that tho acts then under 9 nslderl-
ton so expressly affected the remedy nf the mort
gagee us to impair the obligation OF the mortgage
contract within the melning of the constitution and
declared them void.
The decisions OF tho Courts OF the several States
are somewhat conflicting upon this qurs 1on, but the
majority are in accordance with the rulings OF the
supreme court above cited. The decisions Of the
latter tribunal alone are BIZ ding upon this court,
ana Il Is IN cord with them that the decision
IN this caso must be made.
In the oil BrJ pscn W.. Kinze the decision was
upon statute OF n.i is, passed utter the cution
of the mortgage which iorhId tEc sale of any mort
gagged .ry In that sta;e unless is brought two
Tn rds oil its appraised value. The case OF Nc
CrLcseu Vs. Ia, ward decided that q statute oil
Illinois, which provided that property LEVIED on
uud IN execution ould not be sold un CO two
iLifds OF its value was bid therefor, was void.
The facts in this case show thIt the judgment was
rendered more than year before the passage of the
Homes eau law; that tue ouly real estate Owned ny
tho deenuan is tho tract OF land containing about
four bundred acres levied on that ~ shdrfs sale II
viii not scE for more than twen,yfoui hundred dol
lars though its real value for anting purposes -
between four and five thousand dollars.
he judgment waB by law vested right, lien, O
contract. Had tie Sate The constitutional power to
uivest the plaintiff of his rights and vest them in the
defendant?
Upon the principles involved in this case. there is
no dfferonc. be.wern liens by m 1rtgage and by
Judgment The former are specific, the after gene
raj, but both vested, legcl rights. emitting the
holders to sale of the property Or 30 nluch thereof
as will b. sufficient to satisfy the demand.
In my judgment, 50 much OF the act OF the Gene
ral Assembly "a excmpts any portion OF the iand
levied FROM sale under tbs execution Ia IN con-
flct vita the Constitution Of tue Uni'ei States and
void.
it is therefore ordered that the sheriff proceed 10
cell the prop Itv levied upon and advertised lor sale
iu this case without regard 10 the provisionsot the
law in relation to the b. mes cad. pa'se since the
rcndl Ion o. the judgment. and that be execute the
prore;s OF the cous eIo cing the judgment Accord
ing to the remedy ex ting al tho tne Of he rend'-
,lon of tho judgment und the making OF tho cor
tract bstween the parties.
Il. d. CARPENTER, Circuit Judge.
January 90, 1869.