Daily globe., 1881-09-11


A court tries and determines no questions
but those OF legal rights; it has nothing to
do with mere moral or imperfect obligations,
the binding force of which the civil
law does not take into account A
court of law does not create a
legal obligation, it only declares and adjudges
what the legal obligation of the contract sued
on is; that is, what are the legal rights and
duties of the parties under their contract To
appoint courts to try and determine, accord
ing to rules of law, cases of contracts in
which there can be no legal obligation, would
be 4 grand absuydity. In Fletcher VS.. Peck,
Chief Justice Marshall, discussing the que
tiOn whether contract made by State Is
protected by the federal constitution, sup
poses the case Of suit brought agalnst a
State on its contract, and says: "WOuld 1t
have been defense in such suit to say that
the State had passed law absolvng itself
from its contract? 1t is scarcely to be con-
ceived that such defense should be set up"
Originally citizen of one State could sue
another State in the supreme court OF
the United States This was decided
in an action on q contract, the case being
Chisholm vs.. Georgia, Dallas, 419. If that
right to sue had secured Judicial remedy,
then if the proposition of the relator be true,
this singular result must follow. that if a
State made contract with one of its citizens
it would have no legal obligation, and would
not be protected by the federal constitution,
because of the want Of o judicial remedy upon
it., but when the citizen should become citi-
zen of another State, a judicial remedy would
spring up ana legal ooligntiOn attach to the
contract, and adhere to it unless he should re-
turn to his original State. The proposition
that the legal obligation to dos thing, which
the party has agreed to do, does not exist where
he cannot be compelled to do it by judicial
proceeding, makes the obligation to do it de-
pend on the right and power of the court to
compel him, whereas, the right and power OF
the court to compel the act logically depends 4Ss
party to dc it. 4he oS Conclusion at which
we arrive as to the legal obligation of a con-
tract is that it consists in the right on the one
side, and corresponding duty on the other; that
according to the law in force at the time are
created by the stipulations of the parties.
That it arises as soon as the contract is made,
and continues until it is fully performed, and
may even continue afterwards, and may exist
although there be no judicial remedy upon it.
That the remedy, though not esseetial to the
obligation, gives it value; so that to take
away the remedy or seriously lessen it will i'm
pair the obligation.
Mr.. Story. in his work on the constitution,
section 1885, says:
1.-The oblig alton to perform contract is CO.
eval with the undertaking TO perform it,! 1t
originates with the contract itself and operates
anterior to the time of performance. The
remedy operates upon the broken contract and
enforces pre-existing Obligation" and sec.
| 1881, "There may exist perfect obligation IN
contracts where there is no known and ade-
| suate means to enforce them."
Thus far we have assumed q judicial remedy
upon contract to imply onlya direct Judicial
proceeding against the party to compel
| him to perform its stipulations. But the term
L incr
more than this. 1t comprises, also, judicial
| protection against invasion by others of the
| rights vested by the contract. If the rights
| SO vested are such as the law will, in case OF
such invasion, recognize and protect, then
| there is judicial remedy belonging to the
contract In the case of executory contracts
with the State, the State might assal the rights
| of the other party to the contract, either by
| nit in disregard of its contract or in some
other mode. As an illustration of an assault
| by the State through suit upon the rights OF
| the other party, and an opportunity and judi
cisl means afforded to vindicate his rights
which no immunity on the part of the State
could prevent, we will suppose case that
| might have arisen with respect to these bonds.
| Suppose that, disregarding the amendment of
! 1860, the legislature of 1860 had appropriated
money to pay the bonds, and it had accord
| ingly been paid to the holder OF them, and
that thereupon the State had brought
suit against such holders to recover
| the money as wrengfully paid and re-
ceived Their rights under the contract
would then have been directly before the court
for adjudication and enforcement Of protec-
| tion against the claim made by the State.
To show how the party contracting with
the State might have judicial protection against
| the State through other means than a suit to
invade or disregard his rights, suppose the case
of contract by the State to convey land.
| This State has many such contracts outstand-
! ing. Suppose the State should assume to an
| null one of these contracts and afterwards con-
vey the land to some other person having no.
| tice of the first contract. There would be
| very complete and effectual judicial remedy in
such case for the first purchaser. Many in
stances like this are to be found in the books
| Others than the State might violate the rights
acquired under an executory contract with
| the State. As in the case OF these bonds, a
ng-doer might convert one It
| them. In that event would not the
| contract of which the bond was the
| evidence be the reason or occasion
for a perfect judicial remedy against the
| wrongdoer Would not such contract, or
rather the paper on which it was printed be
| the chief consideration fixing the damage to
be recovered? The bonds are contracts, the
obligations of which cannot be impaired by
State legislation.
The objection made to the amendment of
| 1860 is that it impairs the obligations of these
contracts, and it is claimed,
| That, The power and duty of the legislature
to provide by levy of taxes or by approprla-
| tion of other funds vested in and imposed on
| the legislature when the bonds were issued,
was the remedy upon them, and the amend
ment impairs their obligation by destroying
| the remedy. That the exercise of such power
and duty by the legislature having been con-
templated by the parties, the State on one side
| and those who received the bonds on the 9th.
er, as the means and the only means through
which they could and would be paid, and as
the bonds were received witRthe understand
ing that such means should be employed, it
became a part of the contracts as
much as though expressly stipulated
| therein-that the legislature should have and
exercise that power, and that the amendment
annuls that condition of the contracts, and so
| impairs their obligation. The consideration
of these propositions involves as preliminary
| to them these questions Can the power and
duty of appropriation and levy of taxes to
provide the funds needed for appropriation be
regarded in law as a remedy upon State obliga-
tions? And can the State irrevocably bind it.
self by contract to employ its sovereign pow
er of taxation? I. has been insisted on the
part of the relator, that tue only legal remedy
there can be to enforce contract is the judi
cial remedy that is the enforcement of it
through proceedings in court of justice.
That is the usual remedy and the exceptions
are SO rare that in speaking of the remedy,
the judicial remedy is usually intended. But