Daily globe., 1881-08-09


The supreme court of the State was in ses-
sion yesterday from l p. m. to 6 p. m, with
about the usual number Of listeners to the
bond arguments, and the whole session was
occupied by Hon. John NJ. Gilman, OF whose
argument only an abstract is given below.
Mr. Gilman, resuming his argument from
Friday, said: now come to the consideration
of the constitutional amendment of 1860.
Does that amendment stand in the way of
Legislative enactment for adjustment of the
bonds? That depends upon whether it i'm
pairs the obligation of the contract between
the State and the bondholders. It was ad-
mitted, and has been many times adjudicated
that the clause in the federal constitution that
'.no State shall pass any law impairing the
obligation of contracts" applies equally to
constitutional provisions as to legislative en-
actments, and to contracts of the State as well
as to contracts of individuals. [Citations. ]
'tWhere state becomes party to con-
tract, as in the case before us, the stern rules
of law are applied to her as to pri vate persons
under like circumstances. When she or her
representatives are properly brought into tie
forum of litigation, neither she nor they can
assert any right or immunity, as incident to
her political sovereignty. ."-16 Wall, 232.
1t is also an automatic proposition that the
laws IN force applicable to contract at the
time it was concluded, enter into and consti-
tute part of it. 1t is not probable it will be
claimed but what the legislature had full pow.
er and authority to levy or otherwise provide
the governor, for the payment, settlement
or adjustment of said bonds at the time
the same were issued, and at any time thereaf-
ter, but for the amendment to the consttu-
tion. The people directed the issuance of
the bonds, and as to this the constitution was
self directing, but not in respect to providing
for payment of the bonds. But it established
departments to carry into effect those provis-
ions which were not self-executing. To re-
deem the pledge in respect to the bonds in
volved revenue. And the authority to levy
taxes, raise revenue and disbursements was in
the legislature. Citations Both public in
terest and individual rights required that the
authority to the legislature, implied in the di-
rection to issue the bonds, to make provisions
for redemption of the States pledge, should be
regarded as peremptory. The amendment IT.
self assumes that the legislature had this
power and authority, and the object and pur-
| pose of the amendment was to withdraw and
take it from the legislature, for all practical
purposes.
We may start, then, with the sharply de-
fined proposition that the bonds were issued
by authority of the people, acting in their or
iginal character, and pledglHg the faith and
credit of the State, and at the same time con-
ferring upon the legislature unconditional
power and direction to provide by law for per-
formance of the pledge. Such was the con-
tract on part of the State.
THE OBLIGATION OF THE CONTRACT.
But much is said about the OBJ
legation. What is it that is un-
der constitutional protection? It is the
answer to this upon which counsel hinge their
argument to sustain the validity of the amend
nent. They say the constitution only protects
such obligations as can be julicially enforced
that only legal obligations are protected,
| and that legal oble ations or contracts are on.
ly such as can be enforced in court of justice;
| and as payment of the bonds could not be iu
dicially enforced, the contract was not
under constitutional protection from impair
ment. If this doctrine is sound, it is strange
| that 1t has never before been urged upon or
made before some court, or found recognition
by some court or text writer. Citations.
| There is nothing In the definition of the word
contract, or of the obligation of a contract, to
the effect, or implying that there must be a
| right of action upon it in some court, to
place 1t under constitutional protection. The
definition [cited,] has been many times quoted
| and approved by the supreme court of the
United States and its correctness never ques-
toned. That court has applied the common
sense meaning to the term contract" and
| ''obligation of contract" and not the meta.
physics of the Roman law. [Citations]
| Occasionally, when judge is discussing
the power of the legislature over the remedy
and nothing else is in the mind, an expression
is used that the obligation of a contract
which is under constitutional protection, is
its enfOrcement-Or rights which NAV
be asserted in q court
of law. And that is one element of the OBJ.
ligstion-only one-but it does not follow
that there must be judicial remedy direct
upon the contract. Counsel can find NO
sanction in the federal courts for their Roma
law technical definition of the term "obliga-
ton" az that word is used in the constitu.
ton, and none in the State courts.
| Referring to the use of Pomeroy on the Con.
stitution by the other side and quoting fur
ther, Mr.. Gilman commented: So it is seen
that even Mr.. Pomeroy does not adopt the Ro.
man law distinction respecting "obligation. ,,
as that term is used in our constitution. He
only embodes in his definition two elements.
o-wit: Right on one side and DUTY on the
other. He does not include that element
which counsel are endeavering to engraft viz:
the necessity of right of action in some court.
Farther on (sec. 596) Mr.. Pomeroy inquiries
whether the remedy, whatever it may be, en-
ters into and forms part of the obligation:
and what he says in respect TO the remedy
counsel attempt to incorporate into the def
milton Of Obligation as used in the constitu-
| tion.
| Chief Justice Marshall, as quoted on the
other side, was speaking of contracts and
not the obligation of contracts,
and says that contracts which
are under constitutional protection, are such
as confer rights which may be asserted in a
court of justice; that is, whenever they can
properly be brought before court. And is
not that just what we are now claiming in re-
spect to the contract we have with the State.
Are we not asserting our rights?
| It was Chief Justice Marshall who defined
the obligation OF q contract, in the cousti-
tutional sense, a Wheat, 1872, )"tolbe the law
| which binds the parties to perform their agree
ment." And it was Marshall, C. j., who de-
cided that a compact between States was with.
in the constitutional protection against i'm
pairment.
| But counsel was careful not to read from
sections 1880 and 1852 of Story on the Con-
stitution, where 1t is laid down that the oh
legation of contract in the constitutional
sense means civil obligation, and that civil
obligation sis the obligation which is recog-
nized by the courts, and recognized by the law
of the States by whom it is made" II 4 n
''The civil obligation of contract, then,
| though it can never arise or exist contrary to
pOSltivc law, NAV arise or exist indenendept