My vote is to affirm the judgment of the Supreme Court.
My conclusion is that chapter 340 of the laws of 1931 (Pamph.L. 1931, p. 830), as amended by chapter 236 of the laws of 1932 (Pamph. L. 1932, p. 519), does not violate article 4, section 7, placitum 3, of the constitution of this state, forbidding the passing of any law impairing the obligation of contracts, or depriving a party of any remedy for enforcing a contract which existed when the contract was made, or article 1, section 10 of the federal constitution, prohibiting the several states from passing any laws impairing the obligation of contracts. Nor is it in violation of the fourteenth amendment of the federal constitution as depriving *Page 153 the appellants of property without due process of law, or denying them the equal protection of the law.
It is urged that the act may be sustained under the reserved police power of the state, and that it was enacted as an emergency act in the existing general financial emergency. The act declares that it is designed to meet "the public emergency arising from a default in the payment of existing municipal obligations, and the resulting impairment of public credit," but I find nothing that declares it to be by reason of the general financial situation or limits its operation to the duration thereof. It may as well apply when the national emergency ceases to exist, if any municipality is confronted by an emergency resulting from default in the payment of its obligations.
It has been repeatedly held that a change of remedy is not an impairment of the contract or the deprivation of a remedy for enforcing such contract.
"The authority of the legislature over municipal corporations is supreme. The only limitation upon its power to alter, modify or repeal the charter is, that the repeal shall not operate to impair the obligation of existing contracts, or deprive creditors of a remedy for enforcing such contracts which existed when they were made." Rader v. Road District, 36 N.J.L. 273, 276;Bartlett v. Trenton, 38 Id. 64. In the latter case it was held that the legislature had power to substitute for the action of debt another form of remedy, which did not admit of jury trials.
In Bronson v. Kinzie, 1 How. 311, Mr. Chief Justice Taney said:
"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, provided the alteration does not impair the obligation of the contract."
In Penniman's Case, 103 U.S. 714, 720, Mr. Justice Woods said: *Page 154
"The general doctrine of this court on the subject may be thus stated: In modes of proceeding and forms to enforce the contract the legislature has control and may enlarge, limit, or alter them, provided it does not deny a remedy or so embarrass it with conditions or restrictions as seriously to impair the value of the right." Citing Bronson v. Kinzie, supra; Von Hoffman v.City of Quincy, 4 Wall. 535; Tennessee v. Snead,96 U.S. 69.
In Sturges v. Crowninshield, 4 Wheat. 122, 200, Mr. Chief Justice Marshall distinguished between obligation and remedy in the following language:
"The distinction between the obligation of a contract and the remedy given by the legislature to enforce that obligation, has been taken at the bar, and exists in the nature of things. Without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation shall direct."
Again, in Von Hoffman v. City of Quincy, supra (at pp. 553, 554), it was said:
"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 deemed legitimate, and those which, under the form of modifying the remedy, impair substantial rights. Every case must be determined upon its own circumstances."
The statute under consideration does not take away the remedy, but affords the creditor an ample remedy, namely, recourse to the Supreme Court to compel payment.
It is not necessary to determine whether or not the legislature may deprive the Supreme Court of its power to issue a mandamus. The Supreme Court, in the instant case, refused its writ ofmandamus, and we are dealing with a situation where appellant asserts a right to have such writ upon the existence of a clear legal right thereto.
I conclude that the refusal of the Supreme Court to awardmandamus, in the situation presented, was justified. *Page 155 For affirmance — TRENCHARD, BODINE, DONGES, HEHER, PERSKIE, DEAR, WELLS, JJ. 7.
For reversal — THE CHANCELLOR, CASE, VAN BUSKIRK, KAYS, HETFIELD, DILL, JJ. 6.