I concur in the conclusion reached in the opinion of the court in this case; but I am unable to concur in the reasoning on which the same is based, and especially do I dissent from the holding that section 4483, Statutes of Arkansas of 1884, is the law of this forum in this case.
In discussing this subject the plaintiff in error will be designated as defendant, and defendant in error as plaintiff, in accord with their respective titles in the trial court.
The plaintiff commenced this action on July 22, 1911, against defendant for the principal sum of $600, besides interest and attorney's fees, which had then been past due since December 15, 1905, a period of five years, seven *Page 204 months, and seven days; and the defendant's answer raised the question as to whether the same was barred by the statute of limitation.
The cause of action on this note for nearly two years was subject to the running of the five-year period of limitation prescribed by Mansfield's Digest of the Statutes of Arkansas of 1884, in force in the Indian Territory prior to statehood, at which time this note lacked a little more than three years of being barred.
The case was tried to a jury, and the trial resulted in a verdict for plaintiff under instructions that, notwithstanding plaintiff's cause of action on the note had originally accrued more than five years before the action was commenced, the same was not barred by any statute of limitation; and judgment was accordingly entered against defendant upon this verdict.
This instruction was evidently predicated upon the theory that the said Arkansas statute is not the law of this forum; that at the time of the admission of Oklahoma to statehood the defendant had acquired no vested right by virtue of the running of that statute for nearly two years which was preserved to him by section 1, art. 25 (Williams', sec. 365), in the Schedule of the Constitution of Oklahoma; that section 3890, Statutes of 1893 (section 4657, Rev. Laws 1910), is the law of the forum in this case and prescribes the only limitation the defendant would in any event be entitled to invoke; and that within the meaning of this last-mentioned statute the plaintiff's cause of action did not accrue until it became subject to the running thereof upon the admission of Oklahoma to statehood on November 16, 1907, so that under this statute the computation of the time from the commencement of this action *Page 205 can extend no further back than that date and does not bar this action.
The questions presented in this case, as will be understood from the foregoing, are: (1) Was section 4483 of Mansfield's Digest of the Statutes of Arkansas of 1884 brought forward as the law of this state in such cases, or did defendant acquire any right thereunder, by virtue of section 1, art. 25 (Williams', sec. 365), in the Schedule of our Constitution, so as to bar this action? (2) If not, and if section 3890, Statutes 1893 (section 4657, Rev. Laws 1910), is applicable, as the law of this forum, must the period of limitation be computed from the commencement of this action back to the original accrual of plaintiff's cause, that is, to December 15, 1905, or only back to its accrual or coming under the laws of the State of Oklahoma, that is, to November 16, 1907, when this cause of action first became subject to the statutes of limitation of this state?
The aforesaid section 4483, Statutes of Arkansas of 1884, reads:
"Actions on promissory notes, and other instruments in writing, not under seal, shall be commenced within five years after the cause of action shall accrue, and not afterward."
The aforesaid section 3890, Statutes 1893 (section 4657, Rev. Laws 1910), reads:
"Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued, and not afterward:
"First. Within five years: An action upon any contract, agreement or promise in writing." *Page 206
The aforesaid section 1, art. 25 (Williams', sec. 365), in the Schedule of our Constitution reads:
"No existing rights, suits, proceedings, contracts, or claims shall be affected by the change in the forms of government, but shall continue as if no change in the forms of government had taken place."
Before answering the above-stated questions, which are decisive of the instant case, a few general observations may be helpful to a clearer understanding of the discussion of the same and of the conclusions reached upon each of these questions.
It must be borne in mind that neither a plaintiff nor a defendant is denied or acquires any right whatever under any such statutes (which merely limit the remedy for the enforcement of rights not dependent upon the limiting statute) until the full period of limitation has run and the action is completely barred, nor then, except that adverse possession of real or personal property or of an easement in the former for the full period of limitation operates in effect to transfer the title to such possessor, unless (as, for instance, our own Constitution, sec. 52, art. 5, the same being Williams', sec. 142, and our own statutes, section 3894, Statutes 1893, the same being section 4661, Rev. Laws 1910) there is some constitutional or statutory provision giving such statutes of limitations the effect of barring or otherwise affecting the right of action contrary to the common law. In Campbell v.Holt, 115 U.S. 620, 6 Sup. Ct. 209, 29 L. Ed. 483, where the full period of a Texas statute of limitation had run against a personal debt and thereafter that statute was suspended by an amendment to the state Constitution, the Supreme Court of the United States held that the debtor acquired no right under such statute and therefore said subsequent *Page 207 suspension deprived him of no right, and that said constitutional amendment left the plaintiff free to sue and recover against him just as if the full period of limitation had not run. This is merely well-settled law, usually expressed as, for instance, in Wood on Limitations (4th Ed.) sec. 1, p. 3, in something like the following form:
"The weight of authority now is that the statute of limitations as to personal actions affects only the remedy and does not extinguish the right. Statutes of limitations act on the remedy. They are designed to affect the remedy, and not the right of contract. They only apply to the remedy, without canceling the obligation."
In Angell on Limitations (6th Ed.) sec. 7, p. 4, the same principle is stated in the following form:
"Prescriptions may extend to remedies only, and be rather the means of exemptions from the servitude of an action than of the acquisition of a positive and absolute title. The statute 21 James I, applies only to remedies."
Also, see, Limitations and Adverse Possession, Buswell, sec. 1, p. 1.
Another proposition, which is closely related to the foregoing and equally well-settled, is that the law of the forum alone determines whether a personal action (unless a foreign statute has barred the right itself) is barred by limitation. In other words, the law of the present time and of the court in which the action is commenced, and not the law of any past time or other court, governs in determining questions of limitations in personal actions. In 1 Wood on Limitations (4th Ed.) sec. 8, pp. 31-36, this rule is stated as follows:
"It is well settled that personal contracts are to be interpreted by the law of the place where they are made; and it is a rule equally well settled that remedies on contracts *Page 208 are to be regulated and pursued according to the law of the place where the action is instituted and not by the law of the place of the contract. The reason of this rule, according to Story, J., is obvious, and it is in conformity with the universal rule that, if the statute (of limitation) operates merely upon the remedy, the law of the forum and not the law of the situs of the contract controls. But, if the statute extinguishes the right itself, it may be set up as a bar to an action thereon whenever brought. This rule is forcibly illustrated in another way, and that is, that where by the laws of the forum a shorter period for the limitation of a claim is fixed than by the law of the situs of the contract, the statute of the forum will bar the claim if the party setting it up brings himself within it, although the statute of the place of contract has not run * * * and is distinguished as suggested in Story's Conflict of Laws, and as suggested in reference to the preceding rule, in cases where the right as well as the remedy of the claimant is barred by the law existing at the place of contract, this, however, is not perhaps a frequent case in regard to personal actions."
Also, see, Angell on Limitations, secs. 64-67, pp. 56-67.
The foregoing general observation brings us right down to the answer to the first question to be decided in this case, namely:
"Was section 4483 of Mansfield's Digest of the Statutes of Arkansas of 1884 brought forward as the law of this state in such cases, or did defendant acquire any right thereunder, by virtue of section 1, art. 25 (Williams', sec. 365), in the Schedule of our Constitution so as to bar this action."
It must be obvious from what has already been said that neither the plaintiff nor defendant had lost or acquired any right whatever under the Arkansas statute of limitations prior to statehood, and that if either one of *Page 209 them since has lost or acquired any right under it it is because that statute was brought forward and has been running against plaintiff's remedy by action in court since statehood by virtue of said section 1, art. 25 (Williams', sec. 365), in the Schedule of our Constitution. No "right, contract, or claim" the plaintiff has was "affected" by the adoption of section 3890, Stats. 1893 (section 4657, Rev. Laws 1910), instead of section 4483, Statutes of Arkansas of 1884, as the law of this forum; and if the new statute had shortened the period within which he might have resorted to the courts for the enforcement of his "right, contract, or claim," such "right, contract, or claim" would not have been "affected," unless the time he had previously had in which to sue had been entirely cut off or unreasonably reduced, as such statutes relate only to the remedy — the plaintiff's "right, contract, or claim" would remain intact and enforceable by action at law within the period allowed by the new statute, and thereafter, in the absence of a statute under which the right itself would be lost, in any other available way, as, for instance, by applying any applicable funds he might have in hand belonging to the defendant to the satisfaction of the same.
The defendant had and is urging no "right," or "contract," or "claim" against the plaintiff's right of action on the note in question; and, in effect, he is simply saying here that plaintiff has lost his remedy for a breach of a contract by virtue of some statute of limitation. If at the time of statehood the full bar of the statute of Arkansas had expired and the plaintiff's right had been thus extinguished under the laws of the Indian Territory, it is clear that this section of our Constitution would have preserved to defendant the right to invoke that statute against plaintiff's remedy, so as to defeat his action; but as no right had accrued *Page 210 to either the plaintiff or the defendant under the laws of the Indian Territory in respect to the limitation upon plaintiff's remedy by action at law against the defendant which could have been effected by a change from the territorial to a state form of government, there was nothing in the instant case to be preserved to defendant by that constitutional provision.
That, except as to pending "actions," "suits," and "proceedings," no prior remedy (that is, no means by which the violation of a right is prevented, redressed, or compensated) in the Indian Territory or elsewhere was brought forward or preserved by said section 1, art. 25 (Williams', sec. 365), in the Schedule of our Constitution, is too well settled to be open to discussion at this time. That, except as to pending "actions," "suits," and "proceedings," this section of the Constitution preserves only rights and not remedies will be seen from the following cases: Independent Cotton Oil Co. v.Beacham, 31 Okla. 388, 120 P. 969; Chicago, R.I. P. Ry. Co.v. Baroni, 32 Okla. 540, 122 P. 926; Chicago, R.I. P. Ry.Co. v. Bankers' National Bank, 32 Okla. 290, 122 P. 499;Muskogee Vitrified Brick Co. v. Napier, 34 Okla. 618,136 P. 792; McLeod v. Spencer, 34 Okla. 647, 126 P. 753; Farmers'State Bank of Ingersoll v. Wilson, 34 Okla. 755, 127 P. 395;Hillis v. Addle, 35 Okla. 122, 128 P. 702; Metropolitan Ry.Co. v. Fonville, 36 Okla. 76, 125 P. 1125; Mullen v. Glass,43 Okla. 549, 143 P. 679.
It follows that section 4483, Statutes of Arkansas of 1884, is not the law of this forum nor of this case, and that the defendant cannot here urge that statute in bar of plaintiff's action.
Section 3890, Statutes 1893 (section 4657, Rev. Laws 1910), which became the law of this state by virtue of *Page 211 section 2, art. 25 (Williams', sec. 366), in the Schedule of our Constitution, prescribes the only limitation there is in this jurisdiction upon such causes of action, when the same were not completely barred by the statute of some other jurisdiction.
This brings us to the second and only remaining question in this case, namely:
"Must the period of limitation be computed from the commencement of this action back to the original accrual of plaintiff's cause of action, that is, to December 15, 1905, or only back to its accrual, or coming, under the laws of the State of Oklahoma, that is, to November 16, 1907, when the State of Oklahoma came into existence?"
Upon this question there is admittedly room for reasonable difference of opinion; but the better reasoning leads to the conclusion that time should be computed under this section of our statutes from the commencement of this action, that is, from July 22, 1911, back to the original accrual of plaintiff's cause of action upon this note, that is, to December 15, 1905.
It may be well to state at the outset of the discussion of this question that when a succeeding statute of limitation prescribes a shorter period than the prior statute prescribed, such a retrospective construction may result in barring at the instant that the new statute takes effect some unbarred cause of action theretofore accrued and thus affect a right or claim and so offend and to that extent fall against both the state and federal constitutional inhibitions against legislative impairment of obligations of contracts (which are rights), and, also, against deprivation of property (which is a right) without the due process of law. State Const. art. 2, secs. 7, 15 (Williams', secs. 15, 23); Fed. Const. art. 1, sec. 10, and Amendment *Page 212 14, sec. 1; 6 Enc. U.S. Sup. Ct. 880-884; 5 idem, 589; 8 Fed. Stat. Ann. 868; 9 Fed. Ann. 553; Sohn v. Waterson et al., 17 Wall. 596, 21 L. Ed. 737; Koshkonong v. Burton, 104 U.S. 668, 26 L. Ed. 886; Milbourne v. Kelley, 93 Kan. 753, 145 P. 816.
And it may be further stated here that, while the statute of limitations in force in the Indian Territory prior to statehood is identical with the succeeding statute in force in the State of Oklahoma in respect to the time allowed for commencement of actions in cases of this character, our statutes prescribe a shorter period in some instances for other classes of causes of actions.
In Sohn v. Waterson, 17 Wall. 596, 21 L. Ed. 737, where a Kansas statute of limitation practically identical in language with our own was considered and construed, the Supreme Court of the United States said:
"A statute of limitations may, undoubtedly, have effect upon actions which have already accrued as well as upon actions which accrue after its passage. Whether it does so or not will depend upon the language of the act, and the apparent intent of the Legislature to be gathered therefrom. When a statute declares generally that no action, or no action of a certain class, shall be brought, except within a certain limited time after it shall have accrued, the language of the statute would make it apply to past actions as well as to those arising in the future."
After thus stating that such statutes, construed literally, are both retrospective and prospective in their operation, that court approves the judgment of the Circuit Court of the United States for the District of Kansas, holding the statute under consideration to be not retrospective but prospective only, reaching its conclusion by the following course of reasoning: *Page 213
"But if an action accrued more than the limited time before the statute was passed a literal interpretation of the statute would have the effect of absolutely barring such action at once. It will be presumed that such was not the intent of the Legislature. Such an intent would be unconstitutional. To avoid such a result, and to give the statute a construction that will enable it to stand, courts have given it a prospective operation. In doing this, three different modes have been adopted by different courts. One is to make the statute apply only to causes of action arising after its passage. But as this construction leaves all actions existing at the passage of the act without any limitation at all (which, it is presumed, could not have been intended), another rule adopted is, to construe the statute as applying to such existing actions only as have already run out a portion of the statutory time, but which still have a reasonable time left for prosecution before the statutory time expires — which reasonable time is to be estimated by the court — leaving all other actions accruing prior to the statute unaffected by it. The latter rule does not seem to be founded on any better principle than the former. It still leaves a large class of actions entirely unprovided with any limitation whatever, or, as to them, is unconstitutional, and is a more arbitrary rule than the first. A third construction is that which was adopted by the court below in this case, and which we regard as much more sound than either of the others."
But in the later case of Koshkonong v. Burton, 104 U.S. 668, 26 L. Ed. 836, in discussing this question, the same court said:
"* * * If the proviso, in its application to some cases, is obnoxious to the objection that it does not allow sufficient time within which to sue before the bar takes effect, and is therefore unconstitutional, as impairing the obligation of the contract between the town and its existing creditors, it does not follow that the entire act would fall and become inoperative. The result, in such case, *Page 214 would be, that the plaintiff, and other holders of the coupons, would have not simply one year, but * * * a reasonable time after its passage within which to sue."
And in 6 Enc. U.S. Sup. Ct. Reps. 884, it is said:
"Although a statute of limitation subsequently passed may be obnoxious to the objection that it does not allow sufficient time within which to sue before the bar takes effect, and is therefore unconstitutional, as impairing the obligation of a contract, yet it does not follow that the entire act would for this reason fall and become inoperative. The result would be that the holders of the contract held to be barred by the unconstitutional statute would have a reasonable time after its passage within which to sue."
In Milbourne v. Kelley, 93 Kan. 753, 145 P. 816, decided on January 9, 1915, the Supreme Court of Kansas declined to follow the rule adopted in Sohn v. Waterson, supra, and adhered to that announced in Morton v. Sharkey, McCahon, 113, 1 Kan. (Dass. Ed.) 536, and said:
" 'The Legislature must give a reasonable time to bring suits on causes of action which are not barred by the existing law when the new one is enacted' (syl. 4), and it was held that where the act fails so to provide, suit may be brought within a reasonable time after the passage of the new act. The case was cited with approval in Shepard v. Gibson, 88 Kan. 305, 129 P. 372. * * *"
Our own territorial Supreme Court followed Sohn v. Waterson,supra, in Southgate v. Frier, 8 Okla. 435, 57 P. 841, Huberv. Zimmerman, 8 Okla. 573, 58 P. 737, and Fuller v. Johnson,8 Okla. 601, 58 P. 745, and, although the precise question has not been squarely decided since statehood, the same view of the law is indicated in Theis v. Board of County Com'rs ofBeaver Co., 22 Okla. 333, 97 P. 973, and In re Mosher,24 Okla. 61, 102 P. 705, *Page 215 24 L. R. A. (N. S.) 530, 20 Ann. Cas. 209. But the instant case necessarily involves this question and presents the somewhat anomalous situation of a statute of limitation that has been in force in that territorial portion of the state which was formerly Oklahoma Territory since 1893, and that portion which was formerly Indian Territory only since the admission of these territories to statehood on November 16, 1907; and this situation seems to require a re-examination of the question as to which of the foregoing rules of construction should be applied in the instant case, where neither the plaintiff nor the defendant acquired any right in respect to the limitation upon plaintiff's remedy by suit prior to statehood and said section 3890, Stat. 1893 (section 4657, Rev. Laws 1910); was the law of this state at the time this action was commenced and is therefore the law of this case in this regard. The Indian Territory and the Territory of Oklahoma each bear practically the same relation as antecedents to the State of Oklahoma; and, as it is the law of this state that must govern this question of limitation upon plaintiff's remedy, it seems better to construe this statute literally, subject to the qualification stated in Koshkonong v. Burton, supra, and compute time from the commencement of the action back to the original accrual of the cause of action, and thus have the same rule of construction whether the cause accrued in the one or the other territory — thus alone can any approximation of uniformity in the remedies of creditors and other claimants throughout the state be attained. Section 2, art. 25 (Williams', sec. 366), in the Schedule of the Constitution reads:
"All laws in force in the Territory of Oklahoma at the time of the admission of the state into the Union, * * * *Page 216 shall be extended to and remain in force in the State of Oklahoma. * * *"
Section 21 of the Enabling Act (Williams', sec. 433), in our Constitution also provides:
"* * * All laws in force in the Territory of Oklahoma at the time of the admission of said state into the Union shall be in force throughout said state, except as modified or changed by this act or by the Constitution of the state. * * *"
It appears from these provisions that if plaintiff's cause of action had accrued in Oklahoma Territory and had been subject to the running of said section 3890, Statutes 1893 (section 4657, Rev. Laws 1910), until statehood, time would be computed under this statute in this action from the commencement of the action back to December 15, 1905, although the plaintiff's remedy would not have been barred and the defendant would have acquired no right under this statute prior to statehood, when there was a change in jurisdictions; and the better reasoning seems to require that time should be computed back to the same date in the instant case, notwithstanding plaintiff's cause of action originally accrued under and was subject to the statutes of limitations of Arkansas in force in Indian Territory prior to statehood and a retrospective construction is generally to be avoided.
Sections 46 and 46z, art. 5 (Williams', secs. 108 and 134), of our Constitution read:
"(108) Sec. 46. * * * The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing: * * *
"(134) Sec. 46z. * * * For limitation of civil or criminal actions. * * *" *Page 217
Section 59, art. 5 (Williams', sec. 148), of our Constitution reads:
"Laws of a general nature shall have a uniform operation throughout the state, and where a general law can be made applicable, no special laws shall be enacted."
The rule of uniformity prescribed by the foregoing provisions of our Constitution seems to require computation of time in such cases as the instant one from the commencement of the action back to the original accrual of the cause of action alike in every part of the state (and not only to the admission of Oklahoma to statehood or to one time in one part of the state and to another time in another part of the state), as the language warrants it, and this statute merely relates to the remedy for the enforcement of rights — it is merely the law of the forum relating to the question as to whether a plaintiff has a remedy by action at law at the time such an action is commenced.
It cannot be thought that the framers of said Constitution intended to renew, in effect, all unbarred causes of action in the Indian Territory upon its admission to statehood without renewing such causes of action existing at the time in Oklahoma Territory; and neither can it be thought that the intent was to renew, in effect, all unbarred causes of action existing in both territories at the time of statehood, although our statute, as a law of this state, was not in force anywhere until November 16, 1907; but, in view of our constitutional requirement of uniformity, this appears to be the only alternative to a disregard of this requirement unless, as seems reasonable, our present statute be given a retrospective as well as prospective effect throughout the state. *Page 218
This subdivision of section 3890, Statutes 1893 (section 4657, Rev. Laws 1910), is both retrospective and prospective, when considered from November 16, 1907, when it first became a law of this state; and it is applicable alike in all cases of this character commenced in the courts of this state since statehood; but, if this statute had shortened the period of limitation prescribed by the prior statute so as to completely bar at the time of the admission of Oklahoma to statehood any cause of action as literally applied, the result would be that in such a case time would be computed from the commencement of the action only back to a point of time at which plaintiff already had had a reasonable time within which to commence his action, as the statute would be unconstitutional and void in respect to time back of that point.
For the reasons stated, I agree that the judgment of the trial court should be reversed.
SHARP, J., concurs in the above concurring opinion.