dissenting.
These four cases all involve the constitutionality of the “ stay-law,” and no other question was considered in either of them. *
Is a “ stay-law ” constitutional ? I have labored more to be able to answer this question correctly, than any question ever submitted to me for decision; and according to the judgment of the Court, I have failed to do so. While on the Superior Court bench, at March Term, 1861, of Bartow Superior Court, in the case of B. H. Conyers vs. A. M. Franklin, sheriff, the question was presented precisely as now, and with the lights then before me, I rendered this judgment: “ Upon hearing the cause shown, it is ordered by the Court that the rule nisi be discharged, it being the opinion of the Court that the act referred to in the. showing, (the stay-law of I860,) is constitutional.” This decision was *167excepted to, but the writ of error was withdrawn after it was filed in the Supreme Court. At March Term, 1862, of the same Court, in the case of Conyers vs. Aycock, sheriff, the same question was again presented, and, as I understood, for the avowed purpose of having-a decision upon it by this Court, and upon a re-argument and review of the question, I again ruled in terms that the “stáy-law” is constitutional. Exception was taken to this ruling, the case brought to this Court, and I understand was argued, or partially argued at least, and then withdrawn without a decision, so that the question with me is not new, and my opinions have not been hastily formed. I have had ample time and means to review and correct them if erroneous; for at the June Term, 1866, of this Court, the question was most elaborately and exhaustively argued by some of the ablest lawyers in the State. The view Avhich the Court took of the case then before it, rendered a decision of this question unnecessary. Believing that a decision would have to be made, I have occasionally been examining the question ever since; and if the conclusion to Avhich I have come be erroneous, it is not my fault; because I have used all the means in my power to try to understand truly the question submitted. I regret that on a great constitutional question the Court should be divided; and the fact that my learned brethren think the law unconstitutional, has made me the longer hesitate in forming my opinion finally in opposition to theirs. But having considered all the reasons on both sides of the question, as well as I am able, my mind is fully satisfied, and I am forced, however reluctantly, to dissent from the judgment rendered in these cases. This in Georgia is an open question. No case has been decided, which is binding on this Court as “ authority.” In Curtis’ Commentaries on the Jurisprudence of the Courts of the United States, section 255, he says: “A careful examination of the cases will show that the subject is still left in a distressing conflict of opinions, and requires to be re-examined upon principle and analogy.” So then we are free to decide according to our OAvn convictions of what the law is.
Cases have been decided by the Supreme Court of the *168United States, upon the powers of the States, and in the opinions of Judges in some of those cases, are many dieta bearing upon the question now under consideration; but I find no ease where it has been decided by that Court, and it has not been decided by our own Court. The decisions of our sister States have been conflicting. As I understand the cases, North Carolina, South Carolina, Alabama, Tennessee, and Mississippi have decided the law to be unconstitutional; while Pennsylvania, Iowa, Wisconsin, Maine and Kansas have held it constitutional. In several of the decisions on both sides of the question, there are dissenting opinions. Perhaps upon no question does there exist a greater diversity of judicial opinion than upon this. Such being the case, it is not surprising that our Court should be divided upon it. ■
It is exceedingly difficult for us to get rid of the influence of those to whom we have long been accustomed to look for guidance. Our late Chief Justice, who loved to be styled, as he really was, the “Father of the Georgia Bar,” wielded almost a boundless influence; and a knowledge of what were his impressions of any important question, would naturally do much towards moulding the opinions of those accustomed, for more than twenty years, to regard him as the great exponent of the law. We have so long regarded- him as the oracle of the law, that .his authority is almost irresistible. On the other hand, however, we have our present able and learned Chief Justice, with his clear, cold, hard logic and massive rhetoric, demonstrating with almost unanswerable argument, the opposite view of the question ■ and he is sustained by the profound common-law-lawyer associated with us on the bench. When our guides through the difficult mazes of the law disagree, we are necessarily thrown upon our own resources, and must for ourselves determine what is best sustained by authority and reason.
This Court is asked to set aside an act of the legislature— a co-ordinate department of the government — to declare void a series of acts, upon the ground that the law-making power has transcended the limits prescribed to it by the constitution. While it is now almost universally admitted that Courts *169have this power, yet it is a power which should be exercised'* with great caution. If a law be clearly unconstitutional, the Courts should so declare, regardless of consequences. Yet it is the duty of the Court before doing so, particularly to compare legislative acts with both the State and Federal constitutions, and if possible, to reconcile the one with the other. Winter vs. Jones, 10 Ga. R., 195. In Van Hoffman vs. The City of Quincy, 4 Wallace Rep. 549, decided in 1866, the Supreme Court of the United States says: “ The question to be determined is, whether the statute in this respect is' valid; or whether the legislature transcended its power in enacting it. The duty which the Court is called upon to perform is always one of great delicacy, and the power which it brings into activity is only to be exercised in cases entirely free from doubt.” In Cary vs. Giles, 9 Ga. R., 258, our own Court says: “ If the constitutionality of the acts of 1832 and 1833 was the least doubtful, it would be our duty to carry them into effect. To set them aside, their repugnancy to the constitution should be most manifest. ' It is contrary to the practice and policy of this Court, as it should be of all others, rashly and lightly to pronounce void a solemn act of the government; the case must be clear to justify it.” Again, in Boston vs. Cummins, 16 Ga. R., 105, this Court says: “ Acts of the legislature are not only presumed to be constitutional, but the authority of the Courts to declare them void, yvill never be resorted to, except in a clear and urgent case — one which is directly in the teeth of the constitution— as if the Legislature were to vest the executive power in a standing committee of the House of Representatives; one which requires no nice critical acumen to decide on its character, but which is as obvious to the comprehension of any person as an axiomatic truth — as that all the parts are equal to the whole, or that two and two make four.” In Cooper vs. Telfair, 4 Dallas Rep., 19, Mr. Justice Paterson, in speaking of a statute of Georgia banishing certain persons from the State and confiscating their property, says: “ To authorize this Court to pronounce any law void, it must be a *170dear and unequivocal breach of the constitution, not' a doubtful and argumentative application.”
In Grimball vs. Ross, from Liberty Superior Court, November Term, 1808, reported in 2 Hall’s Law Journal, p. 93, Charlton, Judge, says: “The Judicial department should declare an act unconstitutional only when it is directly in the teeth of the constitution. No nice doctrines, no critical exposition of words, no abstract rules of interpretation, such as may fit the elucidation of principles in a legal contest between individuals, can, or rather ought to be resorted to, in deciding on the constitutional operation of a statute. The violation of a constitutional right ought to be as obvious to the comprehension of every one as an axiomatic truth, — as that the parts are equal to the whole. * * When the question remains doubtful whether the legislature have or have not trespassed upon the constitution, the conflict ought to be avoided, because there is a possibility in such a case of the constitution being on the side of the legislature.”
These quotations show how very careful the Courts are in declaring void an act of the legislature, and how clearly must appear the conflict between the act and the constitution, to justify such action by the Court.
In 1860, the people, represented in the General Assembly, passed, over the executive veto, the first “stay-law.” This was re-enacted in 1861, in 1862, in 1863, and in March, 1865. In November, 1865, the people, represented in convention, passed a “ stay-law,” “ until the adjournment of the first session of the next legislature.” In March, 1866, the legislature passed the “ stay-law,” over the executive veto; and again in December, 1866. Perhaps a more settled policy on the part of the people could not be shown in favor of any measure, than is shown by these references in favor of a “ stay-law.”
Let us see what were the reasons for the adoption of this policy. The preamble to the act of March, 1866, pamp., p. 241, says: “ Whereas, during the late war, the State of Georgia has been overrun by the opposing armies; the agricultural crops and agricultural stock in a great measure *171destroyed; the Confederate indebtedness held by the people, in exchange for their products, has become valueless; the obligations of the State, eagerly sought after as a safe investment, have been repudiated; the accumulated capital of nearly a century, represented by slave labor, amounting to nearly three hundred millions of dollars, has been destroyed, and the prospect of successful agriculture, the basis of all value, now dependent on the voluntary labor of the freedmen, is a question of doubt and experiment — therefore: the General Assembly of the State of Georgia do enact” a “stay-law.” We know the state of things here described did in fact exist; and the people demanded time to enable them to recuperate their wasted estates, so as to enable them to meet their liabilities, without being deprived of the little remnant which had escaped the vicissitudes of the war. The law-making power, “ the objections of the Governor to the contrary notwithstanding,” responded favorably to the appeal from the people. Did the legislature do right? In the great case of Ogden vs. Sanders, 12 Wh. Rep., 283, Mr. Justice Johnson says: “It is among the duties of society to enforce the rights of humanity; and both the debtor and the society have their interests in the administration of justice, and in the general good — interests which must not be swallowed up and lost sight of while yielding attention to the claim of the creditor. The debtor may plead the visitations of Providence, and society has an interest in preserving every member of the community from despondency — relieving him from a hopeless state of prostration, in which he would be useless to himself, his family and the community. When that state of things has arrived in which the community has fairly and fully discharged its duties- to the creditor, and in which pursuing the debtor any longer would destroy the one-without benefiting the other, must always be á question to be determined by the common guardian of both; and in this originates the power exercised by governments in favor of insolvents. It grows out of the administration of justice, and is a necessary appendage to it.” Again, on page 292, he says: “ Ho one questions the duty of the government to *172protect and enforce the just rights of every individual, over all within its control. What we contend for is no more than this, that it is equally the duty and right of governments to impose limits to the avarice and tyranny of individuals, so as not to suffer oppression to be exercised under the semblance of right and justice. It is true that in the exercise of the power, governments themselves may sometimes be the authors of oppression and injustice; but whenever the constitution would impose limits to such power, it has done so; and if it has not been able to impose effectual and universal restraints, it arises only from the extreme difficulty of regulating the movements of sovereign power, and the absolute necessity, after every effort that can be made to govern effectually, thát will still exist, to leave some space for the exercise of discretion and the influence of justice and wisdom.” Has the legislature, in the passing of the “ stay-law,” abused its “ discretion,” and acted contrary to “justice and wisdom ?” What are the powers of the legislature ? Our State constitution, article 2, section 5, paragraph 1, says : “ The General Assembly shall have power to make all laws and ordinances consistent with this constitution, and not repugnant' to the constitution of the United States, which they shall deem necessary and proper for the welfare of the State.” In Boston vs. Cummins, 16 Ga. R., 113, it is said, “Our General Assembly, when acting within the pale of the constitution of the United States and of this State, has the same omnipotence ascribed to the British Parliament. It has sovereign and uncontrollable authority in making, confirming, restraining, abrogating, repealing, reviving and expounding of laws (Braddle vs. Brownfield, 2 Watts & Sergeant R., 271) concerning all matters of all possible denominations, (1 Bl. Com., 160.)” While it keeps within the constitutional restrictions, the only limit to the power of the General Assembly is what “ they shall deem necessary and proper for the welfare of the State.” A reference to the several “ stay-laws ” will show how very necessary the General Assembly deem, “ for the welfare of the State,” some provision to prevent the immediate execution of judgments rendered on liabilities created prior to June 1st, *1731865. The question is, has the legislature exceeded its con-’ stitutional powers. In the language of the Supreme Court of the United States, is the question “entirely free from doubt;” is it “a clear and unequivocal breach of the constitution, not a doubtful and argumentative one;” or, as our own Court expresses it, “ is the repugnancy to the constitution most manifest?” Is this is “a clear and urgent case— one which is directly in the teeth of the constitution; one which requires no nice critical acumen to determine its character, but which is as obvious to the comprehension of any person as an axiomatic truth ?” If so, it is our duty to declare the act void.
It is insisted that the “ stay-law ” violates the clause of the constitution of the United States and of our own State, which prohibits the State from passing any law “ impairing the obligation of contracts;” and also the clause in the State constitution which prohibits the passage of “ retroactive laws injuriously affecting any right of the citizen.” Courts and Judges have expressed various and irreconcilable views upon what legislation is in conflict with the first clause named. Some hold the broad doctrine that the obligation of contracts consists in the remedy which the laws give for the enforcement of the contract when broken; and that therefore the remedy cannot be impaired without' also impairing the obligation to .the same extent. In other words, that the lex loci contractus enters into and forms a part of the contract, and gives “ a right to enforce the performance by the remedies then in force.” Mr. Justice Baldwin, in McCracken vs. Hayward, 2 How. R., 612, seems to take this view of the question. So also does the Supreme Court of Kentucky; Blair vs. Williams, 4 Litt. R., 34; Lapsley vs. Brashears, ib. 49; McKinney vs. Carroll, 5 Mon., 98. The constitution of New Jersey contains a similar declaration. If this view of the question be the correct one, the legislature has no power over the remedy at all, and can make no change in the proceedings to enforce contracts, however satisfactory the changes might be, and however necessary it might be for the welfare of the State.
*174Another class of Courts and Judges take the opposite extreme, and hold that the legislature may modify the remedy in regard to existing contracts at their discretion. Of this class is Mr. Justice McLean, in Bronson vs. Kenzie, 1 How. R., 326-7; and Cook vs. Moffat, 5 Howard’s Rep., 311; Evans vs. Montgomery, 2 Watts & Sergeant Rep., 220, (Pa.) Reade vs. Frankfort Bank, 10 Shepley, 318, (Maine); 6 do., 109. Woods vs. Buie, 5 How. (Miss.) R., 285. Iverson vs. Shorter, 9 Ala. R., 713. Catlin vs. Munga, 1 Texas R., 598. Fisher vs. Lackey, 6 Blankf. R., 373, (Ia.)
A third class, and perhaps the larger one, adopt a view between these extremes, and hold that legislation on the remedies of prior contracts is constitutional, provided the modification of these remedies still leaves substantial and efficient means of enforcing them. 2 Par. on Con., 535; and cases cited. This shows the great diversity of opinion which exists among jurists as to the powers of the legislature under this clause of the constitution. Any one who will read the 150 pages of the case of Ogden vs. Saunders, 12 Wh. Rep., will see hów many different views are expressed; and it will be seen that of the majority of the judges who concurred in the decision, scarcely any two gave the same reason for the opinion; and yet the dicta in this case, and of the cases founded on these dicta, are the foundation of most of the decisions adverse to the constitionality of a “stay-law,” although the question of a “ stay-law ” was not at all involved in the case, in any way.
In Sturges vs. Crowninshield, 4 Wh., 199, Chief Justice Marshall says: “ 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. Confinement of the debtor may .be a punishment for not performing his contract, or may be allowed as a means of inducing him to perform. But the State may refuse to inflict this punishment, or may withhold this means and leave the obligation in full force. Imprison*175ment is no part of the contract, and simply to release the prisoner does not impair its obligation.” Mr. Justice Johnson, in Ogden vs. Saunders, 12 Wh., 287, says : “ The right of the creditor to the aid of the public arm for the recovery of contracts, is not absolute and unlimited, but may be modified by the necessities or the policy of societies.” In the same case, on page 349, Chief Justice Marshall says: “ Counsel for plaintiff in error insists that the right to regulate the remedy and to modify the obligation are the same; that obligation and remedy are identical; that they are synonymous — two words conveying the same idea. The answer given to this proposition by defendant’s counsel seems to be conclusive. They originate at different times. The obligation to perform is coeval with the undertaking to perform; it originates with the contract itself, and operates anterior to the time of performauce. The remedy acts upon a broken contract, and enforces a pre-existing obligation. * * Contracts have consequently an intrinsic obligation. * * Obligation, then, and remedy are not identical; they originate at different times and are derived .from different sources,” p. 350. “ It has been shown that the obligation is distinct from the remedy, and it would seem to follow that law might act on the remedy without acting on the obligation. To afford a remedy is certainly a high duty of those who govern to those who are governed. But the constitution has not undertaken to enforce its performance. * . * Its language is the language of restraint, not of coercion. Should a State be sufficiently insane to shut up or abolish its Courts, and thereby withhold all remedy, would this annihilation of remedy annihilate also the obligation of contracts? We. know it would not. If the debtor should come within the jurisdiction of any Court of another State, the remedy would be immediately applied, and the inherent obligation of the contract enforced. This cannot be ascribed to a renewal of the obligation, for passing the line of a State cannot re-create an obligation Avhich was extinguished. It must be the original obligation of the parties, and which1 exists unimpaired though the remedy was withdrawn,” p. 351. Again, “ We *176perceive then no reason for the opinion that the prohibition to pass any law impairing the obligation of contracts is incompatible with the fair exercise of that discretion which the State legislatures possess, in common with all governments, to regulate the remedies afforded bj^ their own Courts. "We think that obligation and remedy are distinguishable from each other; that the first is created by the act of the parties— the last is afforded by the government. The words of the restriction we have been considering, countenance, we think, this idea. No State shall pass any law impairing the obligation of contracts. These words seem to us to import that the obligation is intrinsic; that it is created by the contract itselfj not that it is dependent on the laws made to enforce it. * * *_ Contracts possess an original intrinsic obligation, derived from the acts of free agents, and not given by the government. We must suppose that the framers of our constitution took the same view of the subject, and the language they have used confirms this opinion,” pp. 353-4.
For myself, I must confess I never have been able to understand how the remedy, which the law provides to enforce the'stipulations of a broken contract, can impair the obligation of contracts, which is the creation of the parties to the contract. Remedy may be incident to contracts, but how a law which simply affects that remedy by suspending for a reasonable time the enforcement of compensation for a violated contract, without in any way touching the contract itself, impairs the obligation, is to me incomprehensible. I do not know how the remedy becomes a part of the contract at all. According to the argument, it would seem that in some way or other, the remedy, which is provided by law, is infused into the obligation of the contract, which is the act of the parties, and their a change of the remedy, or 'a suspension of it for a reasonable time, impairs the obligation. I understand that the supreme power in the State can regulate the time, the mode and the manner of enforcing contracts, though it can pass no law to impair their obligation. It may prescribe imprisonment for debt, and abolish imprisonment for debt; may establish Courts of law and equity, and com*177bine the two, as it has virtually done in this State; may regulate the time and order of the sittings of the Courts in the different circuits, and change them at will. All these things, in a greater or less degree, interfere with the remedy but do not impair the obligation. See the able dissenting opinion of Aldrich, J., in the case of The State vs. Carew, 13 Richardson’s S. C. R., 524. The right to regulate the remedy in its own Courts, must be incident to each State, which may modify and change it as the welfare of society may require; and as a consequence of this, a law changing.or affecting the remedy only is not considered as impairing the obligation of the contract.” Forsythe vs. Marbury, R. M. Charlton’s Rep., 331. Every change or modification of the remedy does not impair the obligation of contracts. The Legislature may vary the nature and extent of the remedy, so always that some substantive remedy be in fact left. Wilder vs. Lumpkin, 4 Ga. R., 220; 2 Sto. on the Con., sec. 1385; James vs. Strell, 9 Barb., N. Y. Rep., 482. “The obligation of a contract is one thing, the remedy to enforce it another. And whilst the former cannot be impaired, the latter may generally be left to the sound discretion of the Legislature.” Griffin vs. McKenzie, 7 Ga. R., 166; (citing 3 Dallas Pa. Rep., 386; 7 Johnson’s Rep., 447; 2 Gallis cir. ct. Rep., 102; 4 Wh. Rep., 122; 12 Wh. Rep., 349; 3 Pet. Rep., 280). “The remedy or mode and manner of enforcing contracts have never been considered as a part of their obligation, and have always been deemed within the Legislative control.” Cary vs. Giles, 9 Ga. Rep., 258. It is now clearly established by repeated decisions that the Legislature may pass laws altering, modifying, or even taking away remedies for the recovery of debts without incurring a violation of the clause in the Constitution which forbids the passage of ex post fado laws, or laws impairing the obligation of contracts.” Evans vs. Montgomery, 4 Watts & Seargent Rep., 220. “ This obligatory force (of contracts) is not so much the result of the positive declarations of the municipal law, as of the general principles of natural, or as it is sometimes called, universal law. In a state of nature, *178independent of the obligations of positive law, contracts may be formed, and their obligatory force be complete. Between independent nations treaties and compacts are formed which are deemed universally obligatory; and yet in no just sense can they be deemed dependent on municipal law. Nay, there may exist (abstractly speaking) a perfect obligation in contracts when there is no known and adequate means to enforce them. * * In this predicament are the United States, who are not sueable on any contract made by themselves, but no one doubts that they are still obligatory on the United States. Yet their obligation is not recognized by any positive municipal law in a great variety of cases. It depends altogether upon principles of public or universal law. Still, there is in these cases a right in the one party to have the contract performed, and a duty on the other side to perform it. But generally when we speak of the obligation of contracts, we include in the idea some known means acknowledged by the municipal law to enforce it. When all such means are absolutely denied, the obligation of the contract is understood to be impaired, though it may not be completely annihilated. Rights may indeed exist without any present adequate correspondent remedies between private persons.” 2 Story on the Con., sec. 1381. “The civil obligation of a contract, then, though it can never arise or exist contrary to positive law, may arise or exist independent of it; and it may exist notwithstanding there may be no present adequate remedy to enforce it. Whenever the municipal law recognizes an absolute duty to perform a contract, then the obligation to perform it is complete, although there may not be a perfect remedy.” 2 Story on Con., 1382. In Morse vs. Gould, 11 N. Y. Rep., 286, Denis, J., says: “Legal remedies are in the fullest sense under the rightful control of the Legislatures of the several States, notwithstanding the provision in the Federal Constitution securing the inviolability of contracts; and it is no valid objection on that subject that the substituted remedy is less beneficial than the one which obtained at the time the debt was contracted.” In McCormick vs. Rush, 3 Am. L. Register, 99, the Supreme *179Court of Iowa says : “The argument of Mr. Justice McLean, in his dissenting opinion in the case of Bronson vs. Kinzie, 1 How. Rep., 311, is, in my opinion, unanswerable, and gives a construction to the language of the Constitution which is plain and intelligible, which any mind sophisticated or unsophisticated (to use the language of Mr. Dallas), can understand. Every mind and every case to be found recognizes a clear distinction between the obligations of a contract and the remedy. And to attempt to draw the dividing line, and to say that the Legislature may change some parts of remedial statutes and not others, or that some such changes affect the obligation, and are therefore invalid, while others do not, and are therefore valid, leads to confusion ; leaves courts and the public in a wild field of uncertainty, without a reliable chart or compass, and necessarily involves the decisions of the several States in inconsistencies; each Court being apt to determine, under the sweeping language of the leading cases, whether existing remedies have by the new statute been preserved in substance and with integrity. It seems to me that no one can refer to all the decisions made and reconcile them.” To show the justice of these remarks, one has but to examine these cases, and they are the leading ones, too — Bronson vs. Kenzie, 1 How., 311; McCracken vs. Hayward, 2 do., 608; Sturges vs. Crowninshield, 4 Wh. 122; Ogden vs. Saunders, 12 Wh., 213 to 370; Green vs. Biddle, 8 Wh., 1; Mason vs. Haile, 12 Wh., 370; Jackson vs. Lampkin, 3 Ret., 280; Crenan vs. The State of Arkansas, 15 How., 319; Planters’ Bank vs. Sharp, 6 How., 301; Bank of Alabama vs. Dalton, 9 How., 522; Satterlee vs. Matthewson, 2 Pet. Rep., 380; McMillan vs. McNiel, 4 Wh., 209; Cook vs. Moffatt, 5 How. R., 295; Boyle vs. Zachry, 6 Pet. R., 643; Beers vs. Haughton, 9 Pet. R., 329.
It is exceedingly difficult, if not impossible, to deduce any general rule from these cases as to the restrictions imposed upon the legislative power by the clause under consideration. I think no intelligible general rule can be deduced from all the cases. They do not define where “remedy” stops and *180“obligation” begins. I can understand that the law of the place of the contract acts upon it and governs its construction, validity and obligation, but I do not understand how the law can constitute any part of the contract. 2 Sto. on the Con., sec. 1384. If the law does not constitute a part of the contract, I cannot see how a change of the law can be said to impair the obligation of the contract. “Eemedies are a consequence of contracts' when brokenSto. on confl. of laws, sec. 336. And it is universally admitted and established, that the forms of remedies and modes of proceeding, and the execution of judgments are to be regulated solely and exclusively by the laws of the place where the action is instituted: Sto. on confl. of laws, sec. 556, 557, 558 and 568. But how can this be, if the laws of the place of the contract enter into and form a part of the contract ? If these laws enter into and form a part of the contract, they must necessarily accompany it every where, when an attempt may be made to enforce the contract.
I had intended to quote from a number of other cases, but owing to the length of this opinion 1 must omit many. I will, however, add another citation here. In 1808, the Legislature of Georgia passed “an act to alleviate the condition of debtors, and afford them temporary relief.” Clayton’s Dig., 426. This act prohibited the issuing of any execution for a stipulated time, upon the defendant giving security. It was insisted the law impaired the obligation of contracts. Judge Charlton, in Grimwal vs. Ross, 2 Hall’s Am. Law. J. 99, says, “what is meant by the terms ‘ impairing the obligation of contracts?’ Any measure, I should suppose, which lessens the value of contracts, that gives them a diminished dignity, takes from them any of the properties of contracts, or which divests them of any priority of lien, obligation, or recovery, which they would otherwise possess. This impairing of contracts must mean their partial rescindment by legislative authority. This act, therefore, as it does not innovate upon the obligation of contracts, either by a partial rescindment, by' destroying any of the properties of contracts, or by diverting the usual operation of the lien, cannot be *181said to impair the obligation of contracts. The usual periods at which contracts were heretofore enforced by action are protracted; the facilities of recovery have been suspended. But does this impair the obligation of contracts ? Certainly not. Their obligation remains entire, and a bond or covenant is as valuable, and on the score of obligation is as appreciative now, as before the passing of the act.”
Under these impressions of the obligations I have thus noticed, I am therefore of opinion, (bottoming my opinion upon these specific objections,) that the act is constitutional” See Von Baunback vs. Bade, 9, Wisconsin Rep., 559, particularly the opinion of Judge Payne; Chadwell vs. Moore, 8 Watts and Sergt. Rep., (Pa.) 49; Brietenback vs. Bush, 8 Wright’s Rep., 313; and Cox vs. Martin, Wright’s Rep., 322, (Pa.); also, Clark vs. Martin, 13 Wright, 299; 16 Mass. Rep., 360; 18 Maine Rep., 109; 5 Howard’s (Miss.) Rep., 285; 23 Maine Rep., 318; Drexell vs. Miller, 13 Wright, 246; 6 Blackf. (Ia.) Rep., 374.
As illustrating the powers of the legislature we may refer to what eminent Judges have said on the subject of exempting certain property from execution for debts contracted, and judgments rendered, previous to the exempting act. In Von Hoffman vs. The City of Quincy, 4 Wallace Rep., 553, Mr. Justice 'Swayne delivering the opinion of the Court, says, “'the right to imprison for debt is not a part of the contract. It is regarded as penal rather than remedial. The States may abolisli 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.” In 2 Parsons on Con. p. 534, the author says: “It is admitted that a State may make partial exemptions of property, as of furniture, food, apparel, or even a homestead.” Chief Justice Taney, in Bronson vs. Kinzie, 1 How., 315, says: “If the laws of the State passed afterwards had done nothing more than change the remedy on contracts of this description, they would be liable to no constitutional objection. For undoubtedly, a State may regulate at pleasure the modes of proceed*182ing in its Courts in relation to past contracts as well as future. It may, for example, shorten the period of time within which claims shall be barred by the statute of limitations. It 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, not be liable to execution on judgments. Regulations of this sort have always been considered, in every civilized community, as property 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 save its citizens from unjust and harassing 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 is 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.” In Bigelow vs. Pritchard, 21 Pickering (Mass.) Rep., 169, Putnam, J., says: “ It would not be contended, as we suppose, that the Legislature may not lawfully exempt a part of the property of a debtor from attachment or levy on execution; for example, articles of furniture, beds, bedding, etc., necessary for the debtor and his family. To that extent the remedy to enforce payment is diminished rightfully.” See, also, Rockwell vs. Hubbell, 2 Douglas (Mich.) Rep., 197; Helfeinsten vs. Cave, 3 Iowa Rep., 287; Casie vs. Douglas, 2 Kansas Rep.; Morse vs. Gould, 1 N. Y. Rep., (1 Kernan) 281; Newell vs. Hayden, 8 Iowa Rep., 140. In Casie vs. Douglas, supra, the Court bases its decision upon the dictum of Chief Justice Taney, in Bronson vs. Kinzie? supra, and adds, “It is just as essential to the well being of a community that the people have houses to live in as that they have tools and implements to work with. The principle that authorizes the exemption of the one must necessarily include the other.”
These quotations are made for the purpose of showing that some who even deny the powers for which I contend, not only admit that the legislature may relieve the person of the *183debtor from imprisonment, but go farther, and admit that portions of his property, also, may be exempt from execution under pre-existing judgments; and still the law will not impair the obligation of contracts. To my mind this gives a larger scope for legislative powers than is necessary to uphold a “ stay law.” What I contend for is, that the legislature, when it may deem it for the welfare of the State, shall have power to suspend, for a reasonable length of time, the remedy which it has furnished for the enforcement of compensation for broken contracts; not to impair the obligation of contracts, but simply to say that for one year we will not authorize an officer to levy on the property of judgment debtors, and at that time he may collect one third of the amount due; another third twelve months thereafter; and the balance in twelve months after that. No liens are to be released or displaced; all the property of the debtor remains bound as before for the payment of his debts; the statute of limitations is suspended in the meantime, so that judgment creditors shall suffer no detriment. All I contend for is the right of the supreme power in the State — the law making power — to withhold its arm from the creditor until the people, by industry and economy, may have a little time to recover from the devastations of a war unparalleled in modern times; and, which swept over Georgia from Dade to Chat-ham, leaving everywhere lonely chimneys as sentinels to tell of the ruin brought on the country. I insist that such legislation, under the circumstances existing in our State, is just such as Chief Justice Taney referred to when he said: “ It must reside in every State to enable it to save 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.” The legislature has not interfered with the obligation of the contract — that remains unchanged. It has simply suspended for a given time the application of the remedy. Such legislation was deemed necessary for the public welfare; and in my opinion the law making power did not transcend its constitutional limits; did not thereby impair the obligation of contracts.
*184It would be interesting to examine the leading cases, relied on' by those maintaining the. other side of this question, but I can only glance at them now. In Sturges vs. Crowninshield, the question related to a law discharging the contract. It was 'held that a state insolvent or bankrupt law was inoperative as to contracts which existed prior to its passage. In Ogden vs. Saunders, the question was as to the effect of such a law upon a subsequent contract. It was adjudged to be valid, and a discharge of the contract according to its provisions was held to be conclusive.
In Green vs. Biddle, the controversy grew out of a compact between the States of "Virginia and Kentucky. The Legislature of Kentucky passed certain laws violative of this compact, and the Court declared them void. In Bronson vs. Kinzie, there was a mortgage containing a power of sale. Subsequently the legislature required mortgaged premises to be sold for not less than two-thirds their appraised value, and allowed the mortgagor a year after the sale to redeem. This was held to be unconstitutional. In McCracken vs. Hayward, it was held that an appraisement law, prohibiting the sale of personal property, under execution, for less than two-thirds of its appraised value, so far as it affected prior contracts, was void.
These are the leading cases, and the question of a “stay law” was not involved in any one of them ; yet it is in the dicta of Judges in these cases that the “authority” is found to set aside a series of acts of the Legislature, running through a period of six years.
As to the case of Wilder vs. Lumpkin, in our own Court, the opinion says, “ The Legislature did not, as we think, intend this act to have any retroactive effect.” 4 Ga. R., 210. So that all the learning of that case is merely obiter. In the Justices, etc., vs. Selman, 6 Ga. R., 439, a rule is quoted from Smith’s Com., 382, which is regarded as opposed to a “stay law.” Without arguing that question, it is sufficient to say that no decision was made at all affecting the question. The question there before the Court was whether certain persons *185were liable as sureties on a guardian’s bond or not. That was the question decided, and nothing more.
It is insisted, however, that the “stay law” is obnoxious to the clause in the constitution which prohibits “retroactive laws injuriously affecting any right of the citizen.” This clause was not in our constitution prior to 1861. It was then inserted, and with a slight verbal alteration, retained in the constitution adopted in November, 1865. Why was this clause added to our constitution ? By the old law, as declared by the Supreme Court of the United States, Caldwell vs. Brett, 3 Dallas Rep., 393, the States were not prohibited by the constitution from passing retroactive laws, except they should thereby impair the obligation of contracts. Freeborn vs. Smith, 2 Wallace R., 174. “Retroactive laws, however unjust, are forbidden by the constitution of the United States only when they impair the obligation of contracts.” Curtis’ Com. Ju. U. S. Cts., sec. 252. Doubtless the clause under consideration was added to the constitution to prevent the legislature from divesting vested rights; to extend to this class of rights the same protection and restrictions as had been provided to preserve the inviolability of contracts Peck’s (Tenn.) Rep., 17. That it was intended to apply to and protect vested rights only, was decided in effect by this Court at the last June term, in the case of O’Kelly vs. The Athens Manufacturing Company. In that case, O’Kelly had brought a qui tam action to recover a penalty for which the corporation had made itself liable. By the commencement of the action an informer acquires an “inchoate right.” Bk. St. Mary’s vs. The State, 12 Ga. R., 475. The legislature after the bringing of the action, repealed the law under which the penalty was incurred, and remitted the penalty, and this Court held that the cause of action was gone. O’Kelly insisted that the constitution protected “any right,” but was answered that it meant any vested right, and that, although he had an “inchoate right,” it was not such a “right” as the constitution protected against “retroactive laws.” Here, at the invitation of the legislature, O’Kelly had employed counsel, became liable for both fees and cost, had instituted *186his action, which authorized him to prosecute it to the exclusion of all others; and under the law, was entitled to one-half the penalties, for which the corporation was liable; had acquired an “inchoate right;” yet he was turned out of Court by the operation of a “retroactive law.” How much stronger is O’Kelly’s case than the one we are considering. In his case, his “inchoate right” was not only “injuriously affected” but he was entirely deprived of all “right” by the “retroactive” repealing statute.
I observe, in looking over the opinion as written out in O’Kelly’s case, that the decision is placed almost exclusively on the ground that the suit was not brought in the proper name. It is true that the decision was placed on this ground, but I am sure my learned brethren will agree with me in stating that the other point was considered and decided as herein stated; and they will also recollect how reluctantly I concurred in that decision. In fact, I reserved the right to dissent, if, upon examination and reflection, I could not bring myself to agree with them. Upon further reflection, I conclilded that the decision was right, and did not dissent therefrom. (This paragraph added since I saw the opinion in December.)
But I deny that any one has a vested right in any particular remedy. In 28 Georgia Reports, 350, (Lockett vs. Usry,) our Court say: “ If the Legislature see fit to alter the law as to the manner of pleading, either at law or in equity, or in any summary or anomalous proceeding, and the statute takes effect before the defence is made, the party must conform to the new rule. And he cannot complain of having been deprived of a vested right. There is, we apprehend, no such thing as a vested right in remedies. All the Courts say is, that the Legislature cannot so change the remedy as to render it nugatory.” This was a case where the proceedings were instituted under the rent laws, and pending the action the “ intruder’s statute ” was passed, and the proceedings were changed so as to conform to the provisions of this statute; the party, say the Court, “mustconform to the new rule.” See, also, Johnson vs. Kookagey, 23 Ga. R., 184, where the *187Courts say, “ statutes changing a man’s remedy have never been held unconstitutional.” These authorities seem to.me to be conclusive. I think that a “ stay law ” is not such a retroactive law as the constitution prohibits.
If an apology were necessary for the length of this opinion, it might be found in the importance of the question, and the great and varied interests depending upon its decision. The fact, also, that a majority of the Court are against me tends to make me distrustful of my own opinion. I have, therefore, preferred to let the sages of the law be heard rather than my own individual views. I felt that I could thus give more strength to the views I advocate than by giving simply, in my own language, the reasons which control my opinion in opposition to that of my learned brethren. I have quoted from our law writers very freely, and, to my own mind, have established very satisfactorily the proposition that “a stay law is constitutional.”
Note. — This opinion, except some slight additions and modifications, was prepared during the summer and fall vacations of 1867. I deem it proper to make this statement on account of what has subsequently transpired.
Walker, J.