Edwards v. Dixon

Warner, Chief Justice,

dissenting.

When this case was before this court on a former occasion, the constitutional question was not then made or discussed, and as a matter of course, no opinion .was expressed in rela*337tion thereto, but the constitutional question was raised and decided in the court below on the last trial, and now comes before us for decision upon that point in the case. The plaintiff read in evidence his note, dated in August, 1861, and closed. The defendant having filed a plea under the provision of the 17th section of the 5th article of the constitution of 1868, and without offering any evidence, moved the court to non-suit the plaintiff, which motion the court sustained, and the plaintiff excepted. In my,judgment, that part of the state constitution of 1868 which declares “that in all cases when the defendant, or any one interested, in the event of the suit, will make a plea supported by his or her affidavit, that he or she has reason to believe that the obligation or evidence of indebtedness upon which the suit is predicated, or some part thereof, has been given or used for the illegal purpose aforesaid, (that is, for the purpose of aiding and encouraging the rebellion) the burden of proof shall be upon the plaintiff to satisfy the court and jury that the bond, deed, note, bill or other evidence of indebtedness upon which said suit is brought, is or are not, nor is any part thereof, founded upon, or in any way connected with, such illegal contract, and has not been used in aid of the rebellion,” is in violation of the 10th section of the 1st article of the constitution of the United States, which prohibits the state from passing any law impairing the obligation of contracts, and is, therefore, void as to contracts made prior to its adoption as the law of this state. . It makes the plea of the defendant, supported by his affidavit, a defense to the plaintiff’s action to enforce his contract, which was not a defense to it under the then existing l^ws of the state, at the time the contract was made, and if one of the original contracting parties-be dead, (as in this case,) the plaintiff would be deprived of all remedy, under the statute law of this state, to enforce his contract, unless he could negative the defendant’s plea by other evidence than his own testimony. It is competent for the state to alter and change the rules of evidence in relation to contracts, and the remedy for their enforcement, provided, always, that no substantial right secured *338by the contract is invaded or impaired. A law of the state' made under the pretext of altering the remedy on contracts, or for altering the rules of evidence in relation thereto, may as well be in violation of the constitution as any other law of the state when it invades.and impairs the obligation of existing contracts. The name or pretext under which it is done, is wholly immaterial. The laws of the state which are in existence at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it, and the parties will be presumed to have contracted in view of that existing law, and this embraces alike those laws which affect its validity, construction, discharge and enforoement. The provision of the state constitution of 1868, as applicable to the plaintiff’s contract, made prior to its adoption,hinders and obstructs its enforoement, and necessarily impairs its obligation, as that obligation existed at the time the contract was made. Any impairment of the obligation of the plaintiff’s contract, as that obligation existed under the law at the time it was made the degree of impairment is immaterial, is within the prohibition of the constitution of the United States. The practical effect of the defendant’s plea under this law of the state is to make the fact that he has reason to believe that the plaintiff’s note, or some part thereof, has been given or used for the purpose of aiding the rebellion, (without stating what that reason is on which his belief is founded) a complete defense and discharge of the defendant’s obligation to perform his contract, unless the plaintiff shall be able to satisfy the aourt and jury to the contrary thereof by proving a negative — that is to say, that the note, or aijy part thereof, was not given and has not been used for the purpose of aiding the rebellion, or in any way connected therewith. The existing law of the state at the time the plaintiff’s contract was made, imposed no such conditions upon him as to the enforcement of the defendant’s legal obligation to perform that contract, as the law of 1868 creates and imposes on him. The contract must be left with the same force and effect, including the substantial means of enforoement, which existed under the law of the state at the *339time the contract was made. I am, therefore, of the opinion that tiie judgment of the court below in this case should be reversed.