lawfully issued its bonds for specified sums, to bear interest at a stated rate, it cannot subsequently provide for taxing that debt, and for detaining a part of it for payment of the tax.1 § 476. Change of remedy. The constitutional provision is a negation. No law is permitted to be enacted to impair the obligation of contracts. There is no mandate to enact laws for their enforcement. Remedies exist in the common law. And courts are supposed to exist throughout the states with competent jurisdiction. The practical question arises upon changes in the law upon affirmative legislation. Nothing is more material to the obligation of a contract than the means of its enforcement. The ideas of validity and remedy are inseparable, and both are parts of the obligation which is guarantied by the constitution against impairment. If legislation "tends to postpone or retard the enforcement of the contract, the obligation of the latter is to that extent weakened. The Latin proverb, qui cito dat bis dat,- he who gives quickly gives twice, has its counterpart in a maxim equally sound,qui serius solvit, minus solvit, he who pays too late, pays less. Any authorization of the postponement of payment, or of means by which such postponement may be effected, is in conflict with the constitutional inhibition." The rule affirmed by the court of last resort is that in modes of proceeding and forms to enforce the contract the legislature has the control, and may enlarge, limit or alter them, provided that it does not deny a remedy, or so embarrass it with conditions as to seriously impair the value of the right. If a particular form of proceeding is prohibited, and another is left or is provided which affords an effective and reasonable mode of enforcing the right, the obligation of the contract is not impaired. A statutory provision requiring a plaintiff having an 1 Murray v. Charleston, 96 U. S. 432. 2 Walker v. Whitehead, 16 Wall. 314. 3 Louisiana v. New Orleans, 102 U. S. 203, per Field, J. 4 Tennessee v. Sneed, 96 U. S. 69; Bronson v. Kinzie, 1 How. 311; Sturges v. Crowninshield, 4 Wheat. 122; Mason v. Haile, 12 id. 370; Green v. Biddle, 8 Wheat. 92; White v. Hart, 13 Wall. 646. 5 Id.; Huntzinger V. Brock, 3 Grant's Cas. 243; Evans v. Montgomery, 4 Watts & S. 218; McDaniel v. Webster, 2 Houst. 305; Read v. Bank, 28 Me. 318; Walker v. Whitehead, 16 Wall. 314; Von Hoffman v. Quincy, 4 id. 552; Pollard, Ex parte, 40 Ala. 77; Nelson v. McCrary, 60 id. 301; Collins v. East Tenn. etc. R. R. Co. 9 Heisk. 841; Williams v. Weaver, 94 N. C. 134; Cutts v. Hardee, 38 Ga. executory judgment against a city to file a certified copy thereof with the controller, preliminary to obtaining a warrant on the treasury in payment, does not impair the obligation, and is constitutional.' § 477. A statute, passed after the making of a mortgage, which declared that the equitable estate of the mortgagor should not be extinguished for twelve months after a sale under a decree in chancery, and which prevented any sale unless two-thirds of the amount at which the property had been valued by appraisers should be bid therefor, impaired the obligation of the contract. Taney, C. J., says: "Undoubtedly a state may regulate at pleasure the modes of proceeding 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 description have always been considered, in every civilized community, as properly 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 secure 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 may be deemed less convenient than an 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. Whatever belongs merely to the remedy may be 350; Stocking v. Hunt, 3 Denio, 274; Wolfkell v. Mason, 16 Abb. Pr. 221; Sullivan v. Brewster, 1 E. D. Smith, 681; Miller v. Moore, id. 739; Coleman v. Ballandi, 22 Minn. 144; Quackenbush v. Danks, 1 Denio, 128; Danks v. Quackenbush, 3 Denio, 594; 1 N. Y. 129; Cusic v. Douglas, 3 Kan. 123; Morse v. Goold, 11 N. Y. 281; Hill v. Kessler, 63 N. C. 437; Martin v. Hughes, 67 N. C. 293; Story v. Furman, 25 N. Y. 214, 223-4; Maxey v. Loyal, 38 Ga. 531; Hardeman v. Downer, 39 id. 425; Sneider v. Heidelberger, 45 Ala. 126; Maull v. Vaughn, id. 134; Farley v. Dowe, id. 324; Rockwell v. Hubbell's Adm'r, 2 Doug. (Mich.) 197; Sprecher v. Wakeley, 11 Wis. 432; In re Kennedy, 2 S. C. 216; Breitung v. Lindauer, 37 Mich. 217. 1 Louisiana v. New Orleans, 102 U.S. 203. 2 Bronson v. Kinzie, 1 How. 311. 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." In McCracken v. Hayward2 it was held that a law which provided that a sale should not be made of property levied on under an execution unless it would bring two-thirds of its appraised value was unconstitutional and void for like reason. Baldwin, J., delivered the opinion of the court, in the course of which he said: "In placing the obligation of contracts under the protection of the constitution, its framers looked to the essentials of the contract more than to the forms and modes of proceeding by which it was to be carried into execution; annulling all state legislation which impaired the obligation, it was left to the states to prescribe and shape the remedy to enforce it. The obligation of a contract 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." In Edwards v. Kearzey3 it was held that an exemption of a homestead to the value of $1,000, inserted in a new constitution adopted after a debt was contracted, impaired the obligation of the contract. Mr. Justice Swayne 1 Bronson v. Kinzie, 1 How. 311. 22 How. 608. 3 96 U. S. 595. Gunn v. Barry, 15 Wall. 610; delivered the opinion of the court, and, alluding to what had been said by the chief justice in Bronson v. Kinzie relative to the power of the states to enact exemption laws, said: "The learned chief justice seems to have had in his mind the maxim de minimis, etc. Upon no other ground can any exemption be justified. Policy and humanity are dangerous guides in the discussion of a legal proposition.' He who follows them far is apt to bring back the means of error and delusion. The prohibition contains no qualification, and we have no judicial authority to interpolate any. Our duty is simply to execute it.” He concludes with this declaration: "The remedy subsisting in a state when and where a contract is made and is to be performed is a part of its obligation, and any subsequent law of the state which so affects that remedy as substantially to impair and lessen the value of the contract is forbidden by the constitution and is therefore void." § 478. Legislation cannot be permitted to affect the construction of existing contracts. It is also held that the parties are entitled to a remedy as efficacious as that afforded when the contract was made. They are entitled to have the identical compact enforced, but not by the precise modes of procedure in force at its execution; only an equivalent remedy. There is some diversity of opinion as to the degree of change or departure from an exact equivalence there may be without conflicting with the constitution. What the suitor has a right to claim is the use of such remedy as may be adequate to his demand; not that he shall be permitted to enforce that demand in any special form or by any specific process.2 No attempt has been made to fix definitely the line between alterations of the remedy which are to be deemed legitimate, and those which, under the form of modifying the remedy, impair substantial rights; every case must be determined on its own circumstances. Statutes taking away all remedy on existing contracts would be manifestly void. Where the changes inHomestead Cases, 22 Gratt. 266; Lessley v. Phipps, 49 Miss. 790. 3 + Call v. Hagger, 8 Mass. 430; State v. Bank, 1 S. C. 63; Osborn v. Nich 1 See Von Hoffman v. Quincy, 4 olson, 13 Wall. 662; West v. SanWall. 553. 2 Tennessee v. Sneed, 96 U. S. 73, 74. 3 Von Hoffman v. Quincy, 4 Wall. 553. som, 44 Ga. 295; Johnson v. Bond, Hempst. 533; Rison v. Farr, 24 Ark. 161; McFarland v. Butler, 8 Minn. 116; Jackson v. Butler, id. 117. 3 troduced are intended and suited to clog, hamper and embarrass the proceedings to enforce the right, so as to destroy it, the statute is not a regulation of the remedy but impairs the obligation of the contract. The remedy for the enforcement of a contract to which a party is entitled under state statutes in force when the contract was made cannot be subsequently taken away by decisions of the state courts giving those statutes an erroneous construction, any more than by subsequent legislation. It has been held that the remedy is within the discretion of the states, and that a stay of execution for a reasonable time is not obnoxious to constitutional objection. An act passed in Wisconsin in May, 1862, exempting from civil process all persons who had or might volunteer or enroll themselves as members of any military company, mustered into the service of the United States or of that state, during their service, was held to be void as operating to impair the obligation of contracts; that it was within the recognized power of the states to change or modify the laws governing proceedings in courts of justice in regard to past as well as future contracts. That power was held to be unrestricted, except that a substantial remedy must be afforded according to the course of justice as it existed at the time the contract was made. A Pennsylvania act of like nature passed in 1861, and construed to mean a stay during the war or for three years and thirty days, unless it should sooner terminate, was sustained. "In such cases," says Woodward, J., "the rule is that the remedy becomes part of the obligation of the contract, and any subsequent statute which affects the remedy impairs the obligation, and is unconstitutional. Bronson v. Kinzie and Billinger v. Evans are illustrations of this rule. The time and manner in which stay laws shall operate are properly legislative questions, and will generally depend, said Judge Baldwin in Jackson v. Lamphire," "on the sound discretion of the legislature, according to the nature of the titles, the situation of the country, and the emergency which leads to the enactment." The learned judge added: "It is 1 Oatman v. Bond, 15 Wis. 20. 3 Chadwick v. Moore, 8 W. & S. 49. 4 Hasbrouck v. Shipman, 16 Wis. 296. 6 51 How. 322. 64 Wright, 327. 8 Breitenbach v. Bush, 44 Pa. St. 313. |