Kirkman v. Bird

Baskin, J. There is no controversy in regard to the facts in this ■ case which are, as follows: That on the 13th of May, 1896, the defendant was indebted to the plaintiff for goods and merchandise previously sold by the latter to the defendant ; that on that — 109 — day the plaintiff recovered on said indebtedness, a judgment for $285.47, and costs amounting to $11.25; that on . the 12th of December, 1899, an execution was issued on said judgment, and the Rio Grande Western Railway Company was garnisheed; that said company, on the 28th of December, 1899, answered “that it was indebted to the defendant in the sum of $77.50 for services rendered from November 1st to December 12,1899, inclusive, which was subject to the claim of plaintiff; that the same was exempt from execution;' that the defendant was before and at the date of said garnishment, and had ever since been a married man with a wife and child dependent upon him for support, and that he and his wife and child were before and at the date of said garnishment, and ever since have been residents of Salt Lake City, Utah.” The respondent William Bird, Jr., also filed an answers alleging the same facts set up by said company. A. L. Hoppaugh, one of the attorneys for the plaintiff, made and filed an affidavit admitting the facts alleged in the foregoing answers, except the conclusion that said earnings were exempt from execution, and stating that at the time said goods and merchandise were sold and said judgment rendered, the said Bird had no property except his monthly earnings for personal services, and that one-half of said earnings, at the last named dates were and ever since have been subject to the execution of said, judgment. It is also admitted that defendant has no property upon which execution can -be levied, or out of which said judgment can be satisfied if all of the earnings of said defendant are exempt from execution. The respondents claim exemption under an act of the legislature, approved March 9, 1899, (Laws 1899, Sec. 7, — 110 — p. 99), which exempts from execution “The earnings of the judgment debtor for personal services rendered within sixty days next preceding the levy of the execution, by garnishment or otherwise, if the judgment debtor be a married man, or with a family dependent upon him for support.” i The court below heM that said earnings, under said provision, were exempt and rendered judgment accordingly. The appellant contends that the legislature did not intend that said provision should have any retroactive effect; and that th'e judgment in this case giving it such effect, is in violation of Sec. 10, Art. 1, of the Constitution of the United States, and impairs the obligation of the implied contract between the parties which arose, upon sale of the said goods and merchandise, previous to the passage of said act. At the date of the implied contract and the rendition of said judgment, under the attachment law then in force, garnishment of one-half, only, of the defendant’s earnings for his personal services, rendered within sixty days preceding service on the garnishee, was permissible. 2 Comp. Laws 1888, p. 307, Subd. 7. and Laws of 1896, Sec. 7, p. 214. Sec. 7 of the Act of 1899, did not abolish the remedy by garnishment, but simply amended the former act, so as to exclude thó whole of such earnings for services rendered during such period from the operation of that process, when the judgment debtor is a married man or has a family dependent upon him for support. So that the alleged injury complained of in this case is said limitation of the remedy by garnishment. Therefore, the only question presented is whether this limitation impairs the obligation of the contract. The remedy by garnishment is — 111 — purely statutory, and not a common law right. 9 Am. & Eng. Enc. of Law, 809; Drake on Attachment, Sec. 451a. In the case of Sturges v. Crowningshield, 4 Wheat. 200, Chief Justice Marshall said: “Without impairing the obligation of the contract the remedy may certainly be modified as the wisdom of the nation shall direct.” In that case it was held that the remedy of imprisonment (which existed at common law) might be abolished without impairing the obligation of the contract. In the case of Bronson v. Kinzie, et al., 1 How. 315, Chief Justice Taney, in the opinion said: “Undoubtedly, a state may regulate at pleasure the modes of proceeding in its courts in relation to past contracts as well as future. It may, if it thinks proper, direct that the necessary implements of agriculture, or the tools of the mechanic, or articles of necessity in household furniture, shall, like wearing apparel, not be liable to execution on judgments. Regulations of this description have always been considered, in every civilized community, as properly belonging to the remedy, to be exercised or not by every sovereignty, according to its own views of policy and humanity. It must reside in every state to enable it to secure its citizens from unjust and harrassing litigation, and to protect them in those pursuits which are necessary to the existence and well being of every community. And, although a new remedy may be deemed less convenient than the old one, and may in some degree render the recovery of debts more tardy and difficult, yet it will not follow that <the law is unconstitutional. Whatever belongs merely to the remedy may be altered according to the will of the state, pro: vided the alteration does not impair the obligation of the contract. But if that effect is produced, it is immaterial whether it is done by acting on the remedy or directly on the contract itself. In either case it is prohibited by the constitution.” — 112 — In the case of Edwards v. Kearzey, 96 U. S. 607, the court sums up its conclusions in this language: “The remedy subsisting in a state when and where a contract is made and is to be performed is a part of its obligation, and any subsequent law of the state which so affects that remedy as substantially to impair and lessen the value of the contract is forbidden-by the constitution, and, is therefore, void.” Justice Clifford in a concurring opinion in the foregoing case on pages 608-9, said: “Beyond all doubt, a state legislature may regulate all such proceedings in its courts at pleasure, subject’only to the condition that the new regulation shall not in any material respect impair the just rights of any party to a pre-existing contract. Authorities to that effect are numerous and decisive; and it is equally clear that a state legislature may, if it thinks proper, direct that the necessary implements of agriculture, or the tools of the mechanic, or certain articles of universal necessity in household furniture, shall, like wearingr apparel, not he liable to attachment and execution for simple contract debts. Regulations of the description mentioned have always been considered in every civilized community as properly belonging to the remedy to be exercised or not by every sovereignty, according to its own views of policy and humanity.” • And Justice Hunt in a concurring opinion in the same case page 610, said: “I think that the law was correctly announced by Mr. Chief Justice Taney in Bronson v. Kinzie (1 How. 311) when he said: A state'‘may, if it thinks proper, direct that the necessary implements of agriculture, or the tools of a mechanic, or articles of necessity in household furniture, shall, like wearing apparel, be not liable to execution on judgments.’ ” In the case of Tennessee v. Sneed, 96 U. S. 74, Justice — 113 — Hunt, in delivering the opinion of the court, said: ‘ ‘ On the general subjects and for numerous illustrations reference is made to the following cases: Bronson v. Kinzie, 1 How. 311 (before quoted from) and Von Hoffman v. City of Quincy, 4 Wall. 553. In the latter-case it was stated that “The right to imprison for debt is not a part of the contract. It is regarded as penal rather than remedial. The states may abolish it whenever they think proper. They may also exempt from, sale, under execution, the necessary implements of agriculture, the tools of a mechanic, and articles of necessity in household furniture. It is said: £ Regulations of this description have always been considered in every civilized community as properly belonging to the remedy, to be exercised by every sovereignty according to its views of policy and humanity. ’ “It is competent for the states to change the form of the remedy, or to modify it otherwise, as they may see fit, provided no substantial right secured by the contract is thereby impaired. No attempt has been made to fix definitely the line between alterations of the remedy, which are to be deemed legitimate, and those, which, under the form of modifying the remedy, impair substantial rights. Every case must be determined upon its own circumstances.” See, also, Penman’s Case, 103 U. S. 714; McGaghey v. Virginia, 135 U. S. 662; Perego v. Dodge, 163 U. S. 160; Cooley’s Const. Lim. 346 et seq.; Suth. Stat. Const. 477, 483. In Suth. on Stat. Const. Sec. 482, it is stated: “No person can claim a vested right in any particular mode of procedure for the enforcement or defense of his rights. * * * A remedy may be provided for existing rights, and new remedies added to or substituted for those which exist. Every case must to considerable extent depend upon its own circumstances. — 114 — General words in remedial statutes may be applied to past transactions and pending cases, according to all indications of legislative intent, and this may be greatly influenced by considerations of convenience, reasonableness and justice.”. Judge Cooley in bis work on Const. Lim. p. 346, says, “Such being the obligation of a contract, it is obvious that the rights of the parties in respect to it are liable to be affected in many ways by changes in the laws, which it could not have been the intention of the constitutional provision to preclude. ‘ There are few laws which concern the general policy of a state, or the government of its citizens, in their intercourse with each other or with strangers, which may not in some way or other affect the contracts which they have entered into or may thereafter form.” .Creditors as well as debtors are presumed to know that the legislature has an inherent power to enlarge, limit, alter or repeal remedial statutes, provided that contracts are not directly impaired, and a remedy be left, though less convenient and less prompt and speedy, than the one so changed or repealed. Also,- to enact such laws as “according to its own views of policy and humanity, it may deem necessary to protect the citizens of the state from unjust, merciless and oppressive litigation and other evils detrimental to the common weal; and protect them in those pursuits of industry, and secure to them those privileges and rights which experience has already shown or in the future may be shown to be necessary to the prosperity and strength of the state, although such necessary laws may in some way or other affect contracts previously entered into.” Among such necessary laws are police regulations, exemptions from forced sales on execution of necessary implements of agriculture, the tools of — 115 — mechanics, necessary household furniture for the use of the family, and their wearing apparel; exemption of a portion of the wages of laborers, etc. Parties making contracts, I think, should be charged with notice that the legislature has a right to make such necessary changes in the laws, and that it should be presumed that they intended their contracts to be subject to such reasonable and necessary changes. Judge Copley in his work on Const. Lim. 707-8, states the proposition thus: ‘ ‘ The occasions to consider this subject in its bearings upon the clause of the Constitution of the United States which forbids the States passing any laws impairing the obligation of contracts have been frequent and varied; and it has been held without dissent that this clause does not so far remove from State control the rights and properties which depend for their existence or enforcement upon contracts, as to relieve them from the operation of such general regulations for the good government of the state and the protection of the rights of individuals as may be deemed important. All contracts and all rights, it is declared, are subject to this power; and not only may regulations which affect them be established by the state, but all such regulations must be subject to change from time to time, as the general well-being of the community may require, or as the circumstances may change, or as experience may demonstrate the'necessity.” In the Dartmouth College Case, 4 Wheat. 429, Chief Justice Marshall uses this language: “ The framers of the Constitution did not intend to restrain the states in the regulation of their civil institutions adopted for internal-government, and that instrument they have given us is not to be so construed.” Certainly any change or limitation of the remedy which does not materially abridge the right, does not impair the — 116 — obligation of the contract. As stated in Van Hoffman v. City of Quincy, 4 Wall. 554, “every case must be deter- ~ mined upon its own circumstances.” * In the case at bar it is conceded that the defendant has a family dependent upon him for support, and that his only means of doing so is his wages. It is a matter of common knowledge that at the time and previous to the passage of the act, limiting the remedy by garnishment, many other citizens of the state were in the same situation as the defendant, and that owing to the financial crisis which prevailed, it was a difficult task for the laborer to earn sufficient to properly support his family. In view of these facts the limitation of the remedy of garnishment was reasonable and necessary, and is not such a change as impairs the obligation of the contract. It is ordered that the judgment of the court below be . affirmed, and that the appellant pay the costs. Baktch, C. J., and Miner, J., concur.