Rosier v. Hale

Lowe, C. J. On the 16th of April last, after the late apr praisement law had taken effect by publication, the sheriff of Eayette county, by virtue of an execution issued upon a judgment rendered in this court at its last December term, sold to the plaintiff as the highest bidder, two forty acre lots of land, according to his return, for the sum of twenty-five dollars. The levy and sale under this execution we are now asked-to set aside, because the sheriff in conducting the same disregarded the provisions of the act entitled, “an Act to provide for the appraisement of property sold under execution,” approved March 31st, 1860. This motion is based *- upon the idea, that the act in question was intended to apply to past transactions and liabilities. Although retrospective acts are often passed and sustained as valid, yet they are viewed with disfavor and will not be construed by the court to be such, except from a necessary and unavoidable implication, or they are made so by the express terms of the law itself.- In this case the language of the act does not except executions founded upon antecedent debts and judgments. It is general, and in its terms applies to all future levies and\ sales under executions, without regard to the time when the debt may have been contracted, or the judgment rendered; which, taken in connection with the last clause of the law repealing all other acts and parts of acts inconsistent with its pro — 484 — visions, leaves ns no room to doubt that the legislature intended to give it the effect and operation of a retrospective law. In doing so the members of that body either overlooked the true nature and sense of the word “ obligation,” when applied to contracts, as now fully settled by the courts of the country, and which the constitution both federal and State, declare shall not be impaired by the passage of any law whatever; or, they intended in view of what they supposed to be a controlling public necessity, to pass a law that should, in their judgment, meet the exigencies of the times, and leave its validity in the keeping of the courts, to whose domain has been assigned under our form of government, the right not only to construe and administer the law, but the power of applying constitutional restrictions. This important duty was performed once before by this court, with reference to the constitutionality of the appraisement law of 1848, as a retrospective act; and therefore we might have been spared the responsibility of exercising so delicate a power the second time. Still we are not insensible of the pressure of circumstances that gave rise to this enactment, and appreciate not only the good intentions of the legislature but the known anxiety that is felt, that the law should be permitted to have a retrospective operation. We can not sustain this motion for the reasons assigned, without disregarding a constitutional inhibition and holding adversely to the repeated decisions of the Supreme Court of the United States, whose authority upon questions arising under the federal constitution is as binding upon this court as our decisions are upon the inferior tribunals of the State, on questions arising under the local laws. To construe this law, therefore, as applying to past contracts could be of no practical benefit to the citizen, inasmuch as there is another tribunal above us, of the last resort, whose prerogative it would be to review and overturn our decision; and to declare invalid a statute that transcended in its provisions the true limits of the law making power. The leading cases in the federal courts which have held that an appraisement law similar to the one under consideration, — 485 — could not constitutionally apply to prior contracts, are Bronson v. Kinzie, 1 How. 311; McCracken v. Hayward, 2 Ib. 608; Gantley’s Lessee v. Ewing, 3 Ib. 717. These authorities define to some extent, but not with entire precision, the distinction between a contract and the obligation of a contract, and they settle the principle that a State legislature can not pass a law that shall act upon the one or the other; that is, vary or charge the terms of a contract, or impair its obligation, referring thereby to the remedy appointed in the law for enforcing through certain prescribed forms the performance of the same, making the word “ obligation ” mean, not the promise, not the moral duty or honor that binds the contracting party to keep his engagement, but the remedial process or coercive means which may be employed to compel the defaulting party to perform his agreement. It is by overlooking this distinction between the law of the contract and the law of procedure, which gives to contracts their binding force or efficiency, that the legislatures of this country are often betrayed into the enactment of laws striking at the remedy in a manner that threatens the inviolability of .the obligations of contracts; and have thereby compelled the courts to interpose their authority, and to limit their operation to cases in futuro. The doctrine laid down in the above cases is, that the law in force when the contract is made is necessarily” referred to and forms a part of the contract, and fixes the rights and obligations growing out of it; and that any substantial change in the law of the remedy which shall lessen its efficiency, or burden it with new conditions and restrictions, comes within the constitutional prohibition^ They say in effect that an appraisement law which prohibits a sale on final process, unless the property will bring two-thirds of its appraised value, is such a material change in the terms of an execution law authorizing an unconditional sal'e, that it can not be upheld retrospectively. The States of New York, Pennsylvania, Indiana, Michigan, Kentucky, Georgia, Missouri and California, have directly — 486 — acquiesced in this interpretation of tbe constitution; other States again have incidentally approved the principle involved in these decisions, and not one has ventured to make a different ruling except the State of Texas, where the ap-praisement law was passed whilst that state was yet an independent republic, and before her admission into the Union; and, therefore, her law was not within the prohibition. Whilst, however, this general concurrence exists between the federal and state courts, in regard to the invalidity of the appraisement law as a retrospective act, yet they all assent to the doctrine that the remedy, in some respects, may be altered and modified to a greater or less degree, without impairing the obligation of contracts; but they do not agree in fixing any practical line of demarcation between a new remedy that does, and one that does not affect the contract. Indeed much learned and varied discussion has arisen as to the extent the legislature may alter the remedy, without interfering with the constitutional rights of the parties, but it has not resulted in establishing any general rule on the subject. Some give the word, impaired, a very broad signification and make it apply to the taking away a part of the-remedy, and insist that to lessen to any extent the remedy in existence when the contract was made, impairs both its value and obligation. Sedgwick in his late work upon “ Statutory and Constitutional Law,” thinks it exceedingly difficult to distinguish between the obligation of a contract and a remedy given by law to enforce it; that they are convertible terms and essential to each other, and that one can not be impaired without producing the same consequences to the other. On the other hand, some of the State courts have gone to the other extreme in sustaining statutes changing the remedy. As an illustration take the following cases: In Morse v. Goold, 1 Ker. 281; it was held (overruling Quackenbush v. Danks, 1 Denio 128, and 1 Cow. 129,) that an act exempting certain articles from execution in addition to those exempted by a previous law, was valid as to prior contracts. Again, in the case of Chadwick v. Moore, 8 — 487 — Watts & Serg. 49; it was beld that statutes suspending sales on execution for a year, unless two-thirds of the appraised value was realized, were within the power of the legislature to enact as applicable to antecedent debts. In Iverson v. Shorter, 9 Ala. 713; it was held that a statute giving a right of redemption for two years from sales on execution under mortgages, deeds of trust, or decrees in equity, was constitutional .as to prior -contracts, at least so far as it governs sales on execution. It is difficult to perceive why these last two cases are not in conflict with the principle laid down in the federal cases above referred to, yet the courts making these decisions claim that there was a distinction between them. We could refer to other decisions upon stay and insolvent laws, showing the diversity of opinion that exists in regard to the character of such laws, and that the courts have not in fact, either from the want of ability, or inclination, established any uniform or general rule which would show how far the legislature might change the law of procedure without interfering with the obligation of contracts. Chancellor Kent deplored the looseness and uncertainty of their adjudications oil this subject, and undertook himself to supply a rule, which, perhaps, will be found to be as practical and sound as the nature of the question will admit of; and that is that the constitution shall not be deemed violated so long as the contracts are submitted to the ordinary and regular course of justice, and the existing remedies are preserved in substance. The constitution of New Jersey declares “that the legislature shall not deprive a party of any remedy for enforcing a contract which existed when the contract was made.” This is equivalent to declaring that no remedial law shall be retrospective in its operation, and if the federal constitution had contained a similar provision instead of the one it does, it would have saved a vast amount of astute discussion, and at the same time given equal, if not greater security to the sanctity and efficacy of contracts. In view of the very great change which has recently — 488 — been made in onr own law of procedure, and not knowing wbat other questions growing out of the same, may be brought before us, we are admonished not to overlook the wisdom of the rule that the decision of every court should be limited to the very matter before it, and therefore, we will not now express any opinion upon the different phases of this subject, as it has been brought before the courts of the country; and we desire to be understood as simply overruling this motion upon the ground that the ap-praisement law in question can not constutionally apply to prior contracts.