(dissenting). — The act of the legislature under consideration, and set out in the opinion of the majority of the court, in § 4 expressly repeals the former law of the state relating to a renewal of. judgments. I do not understand that the opinion questions the power of the legislature to make this repeal, and that it is a valid act of the legislature; but to decide only that it cannot relate to contracts in existence before the enactment of the law. The only constitutional questions, then, are whether the law approved March 6,189V, impairs the obligation of contracts or takes property without due process of law. Mo case from any court has been presented by counsel for appellant which in my judgment aids in the solution of the controversy, excepting those from the supreme court of the United States, which are also cited by respondent. It is claimed that the case of Morley v. Lake Shore & M. S. Ry. Co., 146 U. S. 162 (13 Sup. Ct. 54), does not decide that when contractual rights are merged into a judgment they cannot be enforced, and the facts before the court are referred to to sustain this view. The facts in that case seem to be plain. It was a suit to compel the specific performance of a contract and a money judgment was entered thereon in pursuance of the contract, and, if the defendant did not pay the sum specified and interest specified, plaintiff might have execution against the defendant. When the judgment was rendered the legal rate of interest was seven per cent. This rate was afterwards reduced by the legislature to six per *220cent. The court held that the judgment was obtained on a contract which contained no provision for interest, and that the allowance of interest was a matter of legislative discretion. Now the point mentioned by appellant, that interest on the judgment was in the nature of statutory damages, and was therefore no part of the contract upon which judgment was obtained, was one decided in the case. But I think the question was also clearly raised and a precise declaration of opinion at any rate, that a judgment obtained upon a contract is not a contract within the protection of the constitution. The court said:
“ It is contended on behalf of the plaintiff in error, as stated above, that the judgment is itself a contract, and includes within the scope of its obligation the duty to pay interest thereon. As we have seen, it is doubtless the duty of the defendant to pay the interest that shall accrue on the judgment, if such interest be prescribed by statute, but such duty is created by the statute, and not by the agreement of the parties, and the judgment is not itself a contract within the meaning of the constitutional provision invoked by the plaintiff in error. The most important elements of a contract are wanting. There is no aggregatio mentium. The defendant has not voluntarily assented or promised to pay. . . . Where the transaction is not based upon any assent of parties it cannot be said that any faith is pledged with respect to it, and no case arises for the operation of the constitutional prohibition. Garrison v. City of New York, 21 Wall. 196, 203. It is true that in Louisiana v. Neiv Orleans, and in Garrison v. Oily of New York, the causes of action merged in the judgments were not contract obligations; but in both those cases, as in this, the court was dealing with the contention that the judgments themselves were contracts proprio vigore.”
It will be observed in this case the supreme court discussed the very question of the distinction between judgments on torts, and which it had theretofore held were not contracts within the constitutional prohibition, and judg*221ments on contracts, and held that the judgment is not a contract because the ¡most important elements of a contract are wanting, i. e., the aggregatio mentium. How, the cases cited by counsel for appellant sustaining Blackstone’s definitions of judgments are not at this day entirely correct. The very refined theories upon which Blackstone’s definition is sustained are merely interesting from an antiquarian and historical standpoint. See Freeland v. Williams, 131 U. S. 405 (9 Sup. Ct. 763); Louisiana v. Mayor of New Orleans, 109 U. S. 285 (3 Sup. Ct. 211); Connecticut Mut. Life Ins. Co. v. Cushman, 108 U. S. 51 (2 Sup. Ct. 236). The appellant (plaintiff below) holds the contract of the defendant to pay a certain sum of money. Unquestionably the law for the enforcement of the contract, or rather the remedy existing at the time the contract was entered into, cannot be impaired by the state. But what was the remedy existing at that time? It was the right of action against the defendant for his breach of the contract — his failure to pay the note when due — and to recover a judgment against defendant upon which an execution could issue against all his property not exempt from execution. And by the then existing law the judgment so recovered against defendant was a lien and the judgment and the lien existed together for six years. It was written in the law creating this judgment that its existence, together with that of the lien thereunder, was for six years. At the end of that time, by the law of its creation, the judgment was dead. It is true that another statute provided for the revival of the judgment. The latter statute, I think, was merely a voluntary act of the legislature and not founded on any contract, but solely a question of public policy, and I do not think that by any force of reasoning it can be held that the parties in entering into the original contract had in mind such a remedy, and it was no part of *222the original contract. And so, too, with the lien which the original judgment here gave the plaintiff. It was strictly a part of the remedy confined to the original judgment. The plaintiff having brought his action and obtained his judgment the contract then became absolutely merged in the judgment and all the legislature has done in the act of 1897 is to take away the sanction of the state to a resurrection and revivification of a dying judgment. I think also the statute of 1897 is in the nature of a law of limitation. Limitation may be applied to remedies as well as to rights of action. They are alike in principle. Drury v. Henderson; 143 Ill. 315 (32 N. E. 186); Merchants’ Ins. Co. v. Hill, 86 Mo. 466; Tennessee v. Sneed, 96 U. S. 74; Bronson v. Kinzie, 1 How. 311; Sanger v. Nightingale, 122 U. S. 176 (7 Sup. Ct. 1109); Terry v. Anderson, 96 U. S. 628. In the last case the supreme court of the Hnited States discussed the reasonableness of the time before the bar of limitations attached, and said:
“ Of that the legislature is primarily the- judge; and we cannot overrule the decision of that department of the government, unless a palpable error has been committed. In judging of that, we must place oruselves in the position of the legislators, and must measure the time of limitation in the midst of the circumstances which surrounded them, as nearly as possible; for what is reasonable in a particular case depends upon its particular facts. . . . The business interests of the entire people of the state had been overwhelmed by a calamity common to all. Society demanded that extraordinary efforts be made to get rid of old embarrassments^ and permit a reorganization upon the basis of the new order of things. This clearly presented a case for legislative interference within the just influence of constitutional limitations. Eor this purpose the obligations of old contracts could not be impaired, but their prompt enforcement could be insisted upon or an abandonment claimed. That, as we think, has been done here, and no more.”
*223In that case a note was barred within nine months and seventeen days, i. e., a nine months’ limitation was upheld, Rexford v. Knight, 11 N. Y. 308; People v. Turner, 117 N. Y 227, (22 H. E. 1022; 15 Am. St. Rep. 198); Jackson v. Lamphire, 3 Pet. 280. In People v. Turner, supra, six months was held a reasonable limitation within which to do an act after the passage of the law. Vance v. Vance, 108 U. S. 514 (2 Sup. Ct. 854). In Curtis v. Whitney, 13 Wall. 68, it was said:
“ Hor does every statute which affects the value of a contract impair its obligation. It is one of the contingencies to which parties look now in making a large class of contracts, that they may be affected in many ways by state and national legislation. Eor such legislation demanded by the public good, however, it may retroact on contracts previously made, and enhance the cost and difficulty of performance, or diminish the value of such performance to the other party, there is no restraint in the federal constitution, so long as the obligation of performance remains in full force.”
And in Vance v. Vance, supra, the same court said of the state statute:
“ It is in its nature a statute of limitations. The right of the state to prescribe the time within which existing rights shall be prosecuted, and the means by and conditions on which they may be continued in force, is, we think, undoubted. Otherwise, where no term of prescription exists at the inception of a contract, it would continue in perpetuity, and all laws fixing a limitation upon it would be abortive. How, it is elementary that the state may establish, alter, lengthen or shorten the period of prescription of existing rights, provided that a reasonable time be given in future for complying with the statute.”
But a distinction is drawn between the limitation on the right to commence an action and the limitation on the right to issue an execution or the duration of a lien. I can *224see no difference. The judgment creditor has his full six years under his judgment in which to make his levies. If he does not, then his right may or may not be renewed in the discretion of the legislature. It is not a matter of contract. As said in Louisiana v. New Orleans, 109 U. S. 285 (3 Sup. Ct. 211), also mentioned in the opinion of the majority:
“ A party cannot be said to be deprived of his property in a judgment because at the time he is unable to collect it.”
Thus the legislature of 1897 did not attempt to destroy the contract, if any existed, between plaintiff and defendant, but did withdraw a contingent remedy upon such contract, but which was not a part of the original contract. The contract, if one please, may be said to exist, but without remedy to enforce its moral obligation. Phalen v. Virginia, 8 How. 163; Campbell v. Holt, 115 U. S. 620 (6 Sup. Ct. 209); Gittings v. Stearns, 19 Ill. 376; Bell v. Roberts, 13 Vt. 582. It is questionable whether the common law right to bring an action on judgments exists as a strict matter of right in this state. This right to institute an action has been frequently questioned by the ablest jurists and many courts upholding the right have granted it with reluctance, and it has been denied by some authorities. It seems upon principle to be a useless and expensive proceeding to allow a plaintiff to commence an action upon a judgment the day after it has been entered, and thus to put it within his power to accumulate costs and distress the defendant unnecessarily. It would seem that the courts should have the power to restrain the abuse of such action, and this evidently was the view held by this court in Abernethy v. Town of Medical Lake, 9 Wash. 112 (37 Pac. 306), where the court refused to allow an action to be maintained upon a municipal warrant for the reason that any judgment obtained thereon could only be satisfied by the issuance of *225a like warrant, and that therefore there was no necessity for, nor advantage growing ont of, such action. The principle decided in that case was surely the same as that in a suit upon a judgment because the judgment creditor in all cases has the right to his execution on the first judgment, and it is the only right he obtains by his action upon a judgment and the recovery of the second judgment. See Pitzer v. Russel, 4 Ore. 124; Freeman, Judgments (4th ed.), § 449; Freeman, Executions (2d ed.), ch. 8; which are in consonance with the views expressed here. And I do not think the common law right to commence an action on a judgment in this state is a strict one, hut more in the nature of a permissive one. I cannot conclude that the statute of 1897 under discussion is unconstitutional when applied to existing or prior judgments at the time of its enactment.