. The opinion of the Court was delivered by
On 21 December, 1861, the Legislature of South Carolina passed an Act entitled “An Act to extend relief to debtors, and to prevent the sacrifice of property at public sales.”
By the first section it is provided that “ it shall not be lawful for any officer of this State to serve or execute any mesne or final process of any of the Courts of this State for the collection of money, until after the expiration of the first session of the next General Assembly of this State, except in the cases hereinafter specially provided.” This Act was renewed in February and December, 1863 ; again in December, 1864; and in December, 1865, it was continued in force until the adjournment of the next regular' session of the General Assembly. But, by the second section of the last-mentioned Act, it was declared that nothing therein contained should be construed to apply to any causes of action which might thereafter originate; nor should any debtor be entitled to the benefit of the Act who should fail, on three months’ previous notice, to pay his creditor, on or before 1st December, 1866, one-tenth of the aggregate amount
The case first entitled is that of a rule on the Sheriff to show cause why he had failed to serve the writ. The second case was a motion, on behalf of the defendant, to set aside the service of the writ. The cause shown by the Sheriff was, that the original cause of action was a money bond, executed in February, 1860, and he relied on the prohibition in the Acts above recited as the justification of his refusal to serve the process. The cause of action in the second case was a due bill, payable on demand, in 1860.
The rule against the Sheriff was discharged, and the service of the writ in the latter case was set aside by order of the Circuit Court.
An appeal was taken, ppon the following ground:
Because the Act of December, 1861, entitled “An Act to extend relief to debtors and to prevent the sacrifice of property at public sales,” as also the Act of 21st December, 1865, entitled “ An Act to amend the law known as the Stay Law,” impair the obligation of contracts existing at the time of the passage of said Act, are repugnant to the Constitution of the United States and of this State, and are unconstitutional and void.
The cases were transferred from the Court of Appeals to the Court of Errors, as the highest tribunal in the State, for final adjudication.
By Section 10, Article 1, Constitution United States, passed 17th September, 1787, it is declared that “no State shall enter into any treaty, alliance or confederation, grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment of debts ; pass any bill of attainder, ex post-facto law, or law impairing the obligation of contracts.” So, in the Constitution of the State
In Ogden vs. Saunders, 12 Wheat. 213, it i's said, “the obliga
Chancellor Kent says: “To deny any remedy under a contract, or by burdening the remedy with new conditions and restrictions to make it useless or hardly worth pursuing, is equally a violation of the Constitution.” Again : “The better doctrine is, that all effectual remedies affecting the interests and rights of the owner, existing when the contract was made, become an essential ingredient in it, and are parcel of the creditor’s right, and ought not to be disturbed. All suspensions by statute of remedies, existing when the contract was made, is more or less impairing its obligation.” (1 Kent Com. 419.)
Mr. Justice Story uses this language: “When we speak of the obligation of a contract, we include in the idea some known means acknowledged by the municipal law to enforce it. Where all such means are denied, the obligation of a contract is understood to be impaired, though it may not be completely annihilated.” (Story Const. § 1381.)
Mr. Sedgwick says: “Looking at a contract legally and practically as an instrument by which rights of property are created, and on which they repose, obligation and remedy are strictly convertible terms. Take away the whole remedy, and it is admitted the contract is gone. And it seems the only logical rule to hold,-that any legislation which materially diminishes the remedy given by the law to the creditor at the time his contract
The alleged distinction between the right and the remedy was pressed upon the Court in Green vs. Biddle, 8 Wheat. 381. It was a case twice elaborately argued, and well considered. Mr. Justice Washington, speaking for the Court, says : “A right to land includes the right to enter upon it — to recover possession where withheld.” Again: “Nothingcan beráore clear upon the principles of law and reason than that a law which denies to the owner of land a remedy to recover the possession of it when withheld by any person, or which clogs his recovery of such possession by conditions and restrictions tending to diminish the value of the thing recovered, impairs his right to, and interest in, the property. If there be no remedy to recover the possession, the law necessarily presumes a want of right to it. If the remedy afforded be qualified and restrained by conditions of any kind, the right of the owner may indeed subsist, but it is impaired and rendered insecure, according to the nature and extent of such restrictions.” Twenty years afterwards, these principles came under review before the same Court, in Bronson vs. Kinzie, 1 How. 311. This latter case arose under what was called “the valuation law” of the State of Illinois. The opinion was delivered by Chief Justice Taney. He says: “ 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. But, if that effect is produced, it is immaterial whether it is done by acting on the remedy or directly on the contract itself. In either case, it is prohibited by the Constitution.” He then adverts to the case of Green and Biddle, and repeats the emphatic language there used by the Court: “ It is no answer that the Acts of Kentucky, now in question, are regulations of the remedy and not of the right to the lands.” “If these acts so change the nature and extent of existing remedies as materially to impair the rights and interests of the owner, they are just as much a violation of the compact as if they directly overturned his rights and interests.” “ We concur entirely,” adds the Chief Justice, “in the correctness of the rule
In the following year the same subject was discussed in McCracken vs. Hayward, 2 How. 609. The opinion of the Supreme Court was delivered by Mr. Justice Baldwin. “ The obligation of a contract (says he) consists in its binding force on the party who makes it. This depends on the laws in existence when it is made; these are necessarily referred to in all contracts, and forming a part of them as the measure of the obligation to perform them by the one party, and the right acquired by the other. There can be no other standard by which to ascertain the extent of either than that which the terms of the contract indicate, according to their settled legal meaning; when it becomes consummated, the law defines the duty and the right, compels one party to perform the thing contracted for, and gives the other a right to enforce the performance by the remedies then in force. If any subsequent law affect to diminish the duty, or to impair the right, it necessarily bears on the obligation of the contract, in favor of one party to the injury of the other; hence, any law which, in its operation, amounts to a denial or obstruction of the rights accruing by a contract, though professing to act only on the remedy, is directly obnoxious to the prohibition of the Constitution. This principle is so clearly stated and fully settled
In Planters’ Bank vs. Sharp, 6 How. 301, and again in Curran vs. State of Arkansas, 15 How. 319, these principles were reaffirmed. In the former case, Mr. Justice Woodbury says: “ One of the tests that a contract has been impaired is, that its value has, by legislation,- been diminished. It is not, by the prohibition of the Constitution, to be impaired at all. This is not a question of degree, or manner, or cause, but of encroaching in any respect on its obligation, dispensing with any part of its force.” (P. 321.) In the latter case (15 How.) the doctrine is well condensed by Mr. Justice Curtis: “ It by no means follows, because a law affects only the remedy, that it does not impair
This last case was decided A. D. 1853; and so lately as December, 1864, in Hawthorne vs. Calif, 2 Wallace, 10, the Supreme Court of the United States, by Mr. Justice Nelson, took occasion to recognize and re-afflrm “the principle decided in Bronson vs. Kinzie, and the several subsequent cases of this class;” and held that the Acts then under consideration so seriously affected the remedy of the mortgagee as to impair the obligation of the mortgage contract within the meaning of the Constitution, and declared them void.
It would seem superfluous to add that this series of decisions by the Supreme Court of the United States is conclusive upon this tribunal in settling the. construction of the Constitution upon this subject.
But we are not left without the light of instruction from the adjudications of our sister States, During the war of 1812, when the people of our country were greatly harassed in their affairs, the Legislature of North Carolina passed an Act staying execution upon judgments until the first term of the Court after February, 1814, upon the defendant giving security, &c. The Supreme Court of North Carolina held the law to be null and void, as violating the prohibition of the Constitution against impairing the obligation of contracts. (Crittenden vs. Jones, 1 Car. Law Rep. 385.) That case came under review before the same tribunal in the case of Barnes vs. Barnes, decided June and August term, 1861. The opinion of the Court was announced by Chief Justice Pearson: “ The plea (says he) claiming for the defendants the benefit of what is commonly called the Stay Law, presents for our decision the question of the constitutionality of an Act of the last session of the General Assembly, entitled ‘ An Act to provide against the sacrifice of property, and to suspend proceedings in- certain cases.' Our province is
Lapsley vs. Brashears is a case from Kentucky, 4 Litt. Rep. 49. The' Legislature had authorized a stay of execution on judgments obtained prior to the Act, for one year, upon the defendant’s giving bond to replevy, &c. The Court declared the Act null and void, as violating the prohibition of the Constitution. The opinion of Mr. Justice Owsley, speaking for the Court, is instructive: “But (says he) in a state of civil government, contracts may derive an additional obligation — an obligation which arises from the civil laws of the government, and which, but for the limitations contained in the Constitution, might have been impaired and totally annihilated by the Legislatures of the States. This obligation operates through- the medium of the sanction of the law, and consists emphatically in those remedies which the law supplies, and may be denominated the legal obligation.” “ The Act of the Legislature is in conflict with that provision of the Constitution of the United States which forbids any State from passing a law impairing the obligation of contracts.” “By the Act in question, it is true the obligation of the defendant’s prior contract has not been entirely
In the State of Mississippi, the doctrine is thus stated in Briscoe vs. Anketell, 28 Miss. R. 371: “ It is too well settled to admit of question at the present day, that it is within the power of the State Legislature to regulate the remedy and modes of proceeding in relation to past as well as to future contracts. This power is subject only to the restriction that it cannot be exercised so as to take away all remedy upon the contract, or to impose upon its enforcement new burdens and restrictions which materially impair the value and benefit of the contract.”
But the case of Coffman vs. Bank of Kentucky is a recent decision of the Supreme Court of Mississippi. The Legislature of Mississippi had passed Acts, in 1861 and 1865, not unlike those passed in the same years by the General Assembly of South Carolina. By the Act of 1865, all laws for the collection of debts, &c., were suspended until 1st January, 1868. Chief Justice Handy delivered the judgment of the Court. After admitting in the most ample terms the general authority of State legislation in regard to the remedy for the enforcement of contracts, and vindicating this authority as sanctioned by previous adjudications — “but (continued he) this power of the Legislature over remedies is not without restriction, and any legislation which impairs the value and benefit of the contract, though professing to act upon the remedy, must impair the right intended to be secured by the contract, and come within the evil intended to be prohibited by the Constitution. For, though the particular remedy existing at the time of making the contract
While preparing this opinion, a Montgomery newspaper furnishes the report of a decision made a few days since by the Supreme Court of Alabama. Ex parte G. F. Pollard and ex parte M. L. Woods.
It appears that in Alabama, as in South Carolina, the Circuit Courts are held at an interval of about six months. By the
It is manifest that the judgment of the Alabama Court forms no exception to the unbroken current of decisions. But surely no “ doubtful interpretation ” can be alleged against the legislation of South Carolina upon this subject. The General Assembly said what they meant. It is their habit to do so. They call things by their right names. The Act of 1861 is entitled “An Act to extend relief to debtors, and to prevent the sacrifice of property at public sales.” The subsequent annual enactments are entitled “An Act to continue in force” (the Act of 1861.) " But the Act of 1865 anticipates any misconception, andis entitled “An Act to amend the law known as the Stay Law.” In the case first stated (the State vs. Carew) the obligation of the bond required the obligor to pay to the obligee $1,011 on the 1st February, 1861. The A°t of December, 1861, precludes the creditor from any legal remedy whatever to enforce his demand for twelve months. This prohibition is renewed and continued by successive enactments until December, 1865, when the law was so altered as to allow the creditor, after three months’ previous notice to the debtor, to demand payment of one-tenth of his debt on the 1st December, 1866 ; and, on non-payment, he was allowed to obtain judgment and enforce the same for one-tenth of his debt, and no more. The plain, open, and avowed purpose of the General Assembly was not the regulation of judicial proceedings, but a modification or amelioration of the obligation of the parties — “to extend relief to debtors” — “to prevent the sacrifice of property at public sale” — to amend the “ Stay Law.” By the manifest and necessary effect of the legislation, the creditor is reduced to the condition in which (as has been elsewhere said) “his rights live but in grace, and his remedies in entreaty only.”
It may be that in great emergencies, in periods of general embarrassment, this extraordinary power of interfering for the relief of the citizen ought to have been reserved to the State Legislatures.
Mr. Madison, in the introduction of his report of the debates on the Federal Constitution, describing the condition of things which led to the assembling of sucha Convention, says: “In the internal administration of the States, a violation of contracts had become familiar in the form, of depreciated paper made a legal tender, of property substituted for money, of instalment laws, and of the occlusion of Courts of justice, although evident that all such interferences affected the right of other States, • relatively creditors, as well as citizens creditors within the States.” (Madison Papers, p. 120, 5 Ell. Deb.)
General Davie, of North Carolina, returning from the Convention, congratulated his constituents on the adoption of this prohibition of the Constitution. That, hereafter, a sister State could not again do what they had heretofore done — “make Pine Barren Acts to discharge their debts; declare that our citizens shall be paid in sterile, inarable lands, at an extravagant price; pass instalment laws, procrastinating the payment of debts due from their citizens for years.” “ It is essential (said he) to the interests of agriculture and commerce that the hands of the State should be bound from making paper money, Instalment Laws,
Mr. Charles Pinckney, of South Carolina, was a member of the Convention which adopted the Constitution of the United States, in 1Y8Y. He was subsequently a member of the Convention which formed the State Constitution of 1Y90, and is said to have prepared the draft of the Constitution of South Carolina. In the debates of the State Convention, commenting on this clause of the Constitution of the United States, (Article 1, Section 10,) Mr. Pinckney said: “This section I consider as the soul of the Constitution; as containing, in a few words, those restraints upon the States which, while they keep them from interfering with the powers of the Union, will leave them always in a situation to comply with their Federal duties ; will teach them to cultivate the principles of public honor and private honesty, which are the sure road to national character and happiness.” The prohibition was reiterated in the State Constitution then adopted: “Nor shall any law impairing the obligation of contracts ever be passed by the Legislature of this State.” (Article 9, Section 2.)
The venerable Chancellor DeSaussure had walked with those who fought in the Revolution, and with those Avho framed the •Federal Constitution. The following is his note to Glaze vs. Drayton, (1 Des. R. 110:) “The Legislature, in consideration ■of the distressed state of the country after the war, had passed .an Act prohibiting the immediate recovery of debts, and fixing «certain periods for the payment of debts far beyond the periods fixed by the contract of the parties. These interferences with private contracts became very numerous with most of the State Legislatures, even after the distress arising from the Avar had ceased in a great degree. They produced distrust and irritation throughout the community to such an extent that new troubles were apprehended; and nothing contributed more to prepare the public mind for giving up a portion of the State sovereignty,
In a similar strain, Mr, Justice Colcoclr speaks in Alexander vs. Gibson, 1 N. & McC. Rep. 186, (A. D. 1819:) “In giving construction to this part of the Constitution, it is necessary to take a view of the state of things which existed at the time of its adoption, and of the particular Acts which had been passed by many of the States during the struggle for our independence. From the difficulties which had arisen during the war, it was found to be impossible for debtors to satisfy the demands of their creditors. The value of property was diminished. There was little circulating medium in the country. And hence had originated ‘Pine Barren Acts,’ ‘Instalment Laws,’ and other Acts of similar character, impairing the obligation of contracts, and thereby destroying credit. Many of these laws were then-in operation, and to guard against the continuance of them was the avowed object of this clause in the Constitution.”
Such was the contemporaneous testimony; such has been the uniform tradition of the country. Laws of the character of those under consideration were precisely those against which the prohibition of the Constitution was directed. Perhaps our forefathers miscarried in judgment, and Luther Martin was right. But he failed to convince his constituents. The people of the several States acted with their eyes open. They set one thing over against another, and the counsels of General Davie, and Mr. Madison, and Mr. Pinckney, prevailed over the counsels of Mr. Martin and other distinguished patriots. They ratified the prohibition of the Constitution. They thus voluntarily submitted to this self-restraint, and determined to protect their representatives in the State Legislature from the perils of temptation. If there has been any authoritative adjudication, since the adoption of the Constitution, sustaining the validity of “ Instalment Laws ” or “ Stay Laws,” it escaped the research of the learned counsel who argued this cause, and has not been brought to the notice of the Court,
In Lindsay vs. Commissioners, 2 Bay, 61, Judge Waties uses this language: “It was painful to him to be obliged to question
In the judgment of this Court, the provisions of the Acts of 1861 and 1865, which interdict the service of mesne process, or the enforcement of final process, are at variance with the article of the Constitution of the United States which prohibits a State from passing any law impairing the obligation of contracts, and such provisions are, consequently, inoperative and void.