The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1895-03-21


clear that the legislature, in comforting
on the land commissioner the power to
forfeit lands by the act of 1887 did not
with, impair, or in any manner
affect any lease or SALE or rights growing
out of the same previously made. IL
simply gave the state q new remedy, one
indeed, that was in existence at the date
when the sales were made, but which
was taken away by the act of 1889, and
was restored by the act of 1887. 1t has
rarely ever been decided, though it must
be admitted it has sometimes been de-
clared, that laws affecting remedy must
apply only to contracts made after Its
passage. But the great weight of author
ity is, that laws affecting remedies only
apply to all contracts that are sought to
be enforced, whether they are made before
the passage of the law or afterwards.
Mr.. Cooley, in his great work on consti-
tutional limitations, pages 1857, says:
whatever belongs simply to the RENE
dy may be altered according to the will
of the state, provided the alteration does
not impair the obligation of the contract
and it does not impair provided it leaves
the parties substantial remedy accord
ing to the course of justice as it existed
ut the time the contract was made" The
act of 1887 leaves the purchasers under
the act of 1888 "a substantial remedy
according to the course of justice as it
existed ut the time the contract was
made"
The provisions of the acts of 1883 and
1881 on the point raised are substantially
the same.
In Iowa it has been decided that a stat
ute giving municipalities the right to sell
land for taxes has been held to apply to
delinquencies on the ground that it was
remedial (IIaskell VS.. Burlington, 30
Iowa. 232.) A statute regulating proceed
ure acts retrospectively; that is to say,
as to contracts made before its passage,
and as to suits pending when it was
passed. tkimbray VS.. Draper, Iowa,
K. 80, 100: Hoa VS.. LeFranc, Is Louisi-
ana Annual, 393; Bonner VS.. Palm, %
Cal, 40; Bensby vs. Ellis, 30 Cal, 309)
1t would seem, therefore from the fact
that the Legislature, by the act of 1887,
repealed the act of 1885; and that the
bill itself was such a comprehensive one.
embracing the entire subject to which it
related, leaving nothing to be done under
previous acts, and expressly repeating
Jail laws and parts of laws in conflict there
with, that the Legislature must have in
tended to clothe the land commissioner
with power to forfeit all lands sold under
act of 1883 when the obligations given
therefor were not paid within the time
prescribed by the terms of the act of
1887.
The authorities above quoted also
clearly indicate that there is nothing in
the contention of interested parties to the
effect that the construction of the act
herein indicated would it unconstitutional
in that it was retroactive and impaired
the obligation of contracts in any sense.
The law at the time the contracts were
made is the same as it was made by the
act of 1887 so far as this question is con-
cerned; but even if it were different, the
conclusion would be unchanged.
Chief Justice Marshall in II Wheaton,
settled that question: and his decision
has never been departed from within my
knowledge. On page 21J of that volume
he uses the following language: That
an act of the legislature does not enter
into contract and become one of the
conditions stipulated by the parties. nor
does it act externally on the agreement
unless it have full force of law. That
contracts derive their obligations from
the acts of the parties. not from the grant
of the government. That the obligation
of II contract is not identified with the
means which the government may furnish
to enforce it, and that n prohibition to
prohibition of varying the remedy"
The supreme court of the United States,
in the case of Tennessee VS.. Sneed, 96
U. S., uses the following language: "Our
own reports and those of the states are
full of cases holding that the legislature
may modify or alter the remedy to en-
force contracts, without impairing their
obligations. The case of Sturgess VS..
Crowinshead, 4 Wheaton, 132, is among
the first of the class. where the question
arose upon the abolition of the right of
imprisonment of a debtor as a means of
compelling payment of his debt 1t was
held that the repeal of the law authoriz-
ing the Imprisonment of Il debtor did not
impair the obligation of a contract, though
it took away one of the remedies" To
the same effect was the decision in Mason
VS.. Hale II Wheaton, $40.
The court in the same case proceeds as
follows: "The rule seems to be that IN
modes of proceeding and in forms of en-
forcing a contract the legislature has CON
troll and may enlarge, limit or alter
them, provided that it does not deny a
remedy or so embarrass it with restrlc-
tions and conditions as seriously to impair
the value of the right" In support of the
cites the cases of Bronson VS.. Kinsic,
/ Howard, 81; Won Huffman VS.. City
of Quincy. 4 Wall. $50; Price VS.. Schuy-
Ter ct al. III, 221: Evans vs.. Montgom-
cry, Watts 4 S. PENN, 21S: Reed VS..
Frankfort bank, % Maine, 31S.
SO far as the doctrine of waiver IS
concerned. it has no APPLICATION to this
case; that state has waived no right.
Through its Legislative department IN
1885 it changed a remedy. BY the act
of 1887 the remedy was again changed so
as to be substantially the same as given
by the act of 1888. The doctrine OF
waving a right cannot be said to apply
when the waiver relates to the remedy
alone. The case of Davis VS.. Grey (l6
Wallace therefore has no application.
In that case it must be noted, too, that
two of the ablest judges on the bench
dissented from the conclusions therein
stated. 1t must follow, therefore, If
am correct in the foregoing, that where
sales were made under the act of 1888,
at n time when the commissioner of the
general land office had the authority to
forfeit them without judicial ascertain
ment of the facts, that the commissioner
of the general land office, after the pass
age of the act of 1887, had the authority
to forfeit land sold under the act OF
1888. prior ITO the act of 1880; and That
the effect of the repeal of the act OF 1889
was to clothe the land commissioner with
power to forfeit such sales under the
net of 1888 for non-payment of interest;
and if such forfeitures were in all other
racpnctc rnrulor they are legal. very