Daily globe., 1881-08-09


inmate the right is perfect one; but when
the thing or action is vague and indie erminate
the right is an imperfect one. "If man de-
mand his property which is withheld from
him, the right that supports his demand is
perfect one, because the thing demanded may
be fixed and determinate; but if poor man
| ask relief from those from whom he has rea-
son to expect it, the right which supports his
petition is an imperfect one, because the re-
lief which he expects is vague, indetermlnate
thing" And, "imperfect obligations" he
says, care those which are not binding on us
as between man and man, and for the
non-performance OF which we are accounta-
BILE to God only-such as charity or graft
tude." "a perfect obligation is one which
gives right to another to require us to give
him something or not to do something. These
! obligations are either natural or moral, or
| they are civil"
| Now put these definitions together and see
| II the bondholders have not legal rights and
perfect obligations against the State. (Cita-
| tion, Q How, 612. There is nothing aid
here about the necessity of a judicial remedy
| to enforce the contract, in order to bring it
under constitutional protection. The remedy,
such as it is, whether judicial, legislative or
otherwise, must not be taken away until the
| contract is performed. III Wheaton 256,
257.]
| 1t is the law that rests upon the party to
perform his contract, and not the enforcement
of it, that is the only essential ingredient of
| the obligation. The law, whatever it may be,
| and not the degree of its strength and efficacy
Was there not law, as strong as possible to
make-a constitutional law-resting upon the
| State to perform Its engagements? The mo-
| duS Operandi is entirely another matter.
Counsel read from Justice Trimble Ogden
VS.. Saunders) and Justice Thompson. They
| were not considering the question the counsel
makes and had no such point in mind. They
were speaking of contracts between individu-
| ais and none other were in the mind. Justice
| Trimble, little farther on than counsel
read, says: "The constitution evidently
| contemplated an obligation which may be i'm
paired by law of the State, if not prohibited
| by the constitution" Not an obligation that
can be judicially enforced, but one which may
be impaired by the State if not prohibited.
While the remedy, such as it may be, or its
efficacy, is an element of the obligation, the
| nature of the remedy or dsgree of lis efficiency
"Valdity and remedy" say the court, "both
are parts of the obligation" Not remedy
alone; it is only one element of the obligation
Its importance depending on its efficiency.
If the contract is valid, the obligation
arises and exists, however inefficient the reme-
| dy may be, even though there be no adequate
remedy. So says Story and so say the author
| tiles.
Counsel attempt to exclude all elements
from the obligation except the degree of effec-
| tiveness of the remedy. But that will not do.
| There is no warrant for such position. The
obligation may exist independent of any reme-
| dial ingredient; but if there is any remedy,
efficient or inefficient, judicial or extra judi
cial, such as it is, it forms part, only part,
of the obligation. AS respects the bonds, the
remedy was legislative. The legislature was
authorized, empowered and directed to per-
| form the States agreement.
Taking, then, the definition of contract and
of obligation of contract, in
the constitutional sense, as given
by the supreme court, by Story and Cooley,
| and even by Pomeroy-we find that q con-
| tract is an agreement in which party un-
dertakes to do, or not to do, a particular
thing, and that the obligation of the contract
is the law which rests upon party to perform
his agreement The right to have the con-
tract or obligation judicIallY enforced, is not
an element in the definitions. The ob'igati N
exists by virtue of the law which the party
imposes upon himself, without reference to
Its enforcement.
Let US recur for a moment to the law that
| rested upon the State to perform it's agreement
with the bondholders, The untrammeled and
unconditional power, authority and dircc
| uon given to the legislature to levy tax OF
terest and principal of the bonds constituted
in part the obligation. That was the only
feature of the contract that could give value
or credit to the bonds; without it they woulG
be valueless. This obligation, or obligatory
feature of the contract, was something more
higher and different from the mere remedy
The obligation was enc thing; the enforce
ment of it quite another matter.
The State provided the bondholders with all
| the law in ifs mower tO furnish for no unnpD1
of the bonds. The power for enforcing the
contract was ample. Its exercise involved the
remedy, and while the exercise of the power OF
application of the remedy could not be judi
cially enforced!lit was nevertheless equally
sacred and valuable. The exercise Of
the power or remedy rested on higher
ground than judicial authority, ant
was more efficient and valuable to the bond
holders than the judicial arm could be. There
was the plighted faith of the State and con
stitutional mandate to the legislature to ap
ply the remedy by the exercise of the power
conferred. If it is said that the Legislature
could not be compelled to act, the same may
be said of the courts. If the courts should
refuse to apply the remedy for the enforce
ment of right, Whist could the injured party
do? He would be in precisely the same con
dition as one thus treated by the legislature,
where the power to apply the remedy rested
in that tribunal.
There is no beettr way to show the falsty
of the positions of the other side than to
point out the conclusions to which they nee
essarily lead. In claiming that the obllga
tion and remedy are synonymous terms, and
that there is no remedy known to the constr.
tuition unless it can be judicially enforced
counsel reach the conclusion that the bond
holders had no remedy because they had none
that the courts could enforce. Now if they
had no remedy or obligation, it follows that
they had no legal rights and no contract The
contract, with all the obIigat ons and rights
supposed to attend it, are thus reasoned out
of existence. III Wheat, 1872, 3 Wall, 552.]
So, in assuming premises to reach conclu-
siou that the bondholders had no remedy,
counsel are brought to maintain that they
consequently had no rights, no obligation and
no valid contract. Counsel might as well
take the short cut and say in the start the
bondholders had no valid contract with the
State, no obligation, and no rights, aud there
fore had nothing to say about the consitu-
tional amendment. But it is great mistake
to assume that party can have no remedy
and that The constitution protects no remedy
except such as can be judicially enforced.
The mistake of counsel is, they build upon
false premises. 1t is not true that the obliga
tion and remedy are identical. They are not
convertible terms, although so connected and
related that the obligation may be of little val
ue without the remedy; and an injury to the
remedy may impair the obligation. The obli-
CATION is the law which binds the party to
perform; while the remedy is the law or agree
/ 1onfi ho of 1ovu