Cutts & Johnson v. Hardee , 38 Ga. 350 ( 1868 )

Warrer, J.,

dissenting.

This was an action brought by the plaintiff against the defendants, on a promissory note, for the sum of $5,200 00, dated 22d January, 1861, and due forty-five days after date. The defendant, Stewart, filed a plea to the plaintiff’s action against him, in which he alleged certain facts by way of defence thereto, as provided by the provisions of the first section of the Act of 1868, for “ the relief of debtors, and to authorize the adjustment of debts upon the principles of equity.” The plaintiff demurred to the defendant’s plea, and the Court below sustained the demurrer. The defendant excepted, and now assigns for error here, that the Court erred in sustaining the plaintiff’s demurrer to his plea. The legal merits of the plea will be better understood, by reciting the first section of the Act which authorizes the facts contained in the plea, to be set up as a legal defence to the plaintiff’s action upon the note. The first section of the Act of 1868, declares, “ That, in all suits, which shall be brought for the recovery of debts in any of the courts of this State, or upon contracts for the payment of money, made prior to the 1st of June, 1865, (except for the sale or hire of slaves), it shall be lawful for the parties in all such cases, to give in evidence before the jury impanneled to try the same, the consideration of the debt, or contract, which maybe the subject of the suit, the amount and value of the property owned by the defendant at the time the debt was contracted, or the contract entered into, to shew upon the faith of what property credit was given to him, and what tender, or tenders of payment he made to the creditor, at any time, and that the non-payment of the debt, or debts, was owing to the refusal of the creditor to receive the money tendered, or offered, to be tendered, the destruction or loss of the property upon the faith of which the credit was given, and how, and in what manner, the property was lost or destroyed,' and by whose default; and in all such cases, the juries which try the same) shall have power to reduce the amount of the debt or debts sued for, according to the equities of each case, and render such verdicts as to them shall appear just and equitable.” The plea, and the demurrer thereto, necessarily raises the question, whether the facts authorized by this Act of the Legislature, can be plead as a legal defence, and proved, so as to authorize the jury to reduce the amount of the plaintiff’s debt, as to them shall appear just and equitable. If the Legislature have the constitutional power to enact a law to that effect, then, it can be done, but if the Legislature have not the constitutional power and authority to do so, then it cannot be done, and that is the precise question presented for the decision of the Court by the plea and demurrer. The plea sets forth the facts which the Act authorizes the defendant to plead, and prove, as a legal defence, in order to reduce the plaintiff’s debt. The plaintiff demurs thereto, and says, admitting all the facts stated in your plea to be true and authorized by the Act, still, under the supreme law of the land, the Legislature had no power to pass such an Act, because it impairs the obligation of the plaintiff’s contract, and he demands the judgment of the Court upon that issue of law which is made by his demurrer. The constitutionality of the Act is, therefore, necessarily presented by the plea and demurrer for the judgment of the Court. There is no dodging it. The question is squarely presented by the plea and demurrer. Is the Act constitutional or not ? If it is; then the plea is good. If the Act is not constitutional, then the plea is bad, and constitutes no legal defence to the plaintiff’s action • that is all there is in it, and this Court ought not to shirk its responsibility by referring it to a jury, to see whether they would make any improper use of the evidence authorized by the Act. I shall not undertake here to repeat what was said in the case of Aycock et al., vs. Martin et al., 37 Ga. R., 127, in regard to what constitutes the obligation of a contract, but will state the rule upon that question, as declared by the Supreme Court of the United States, in two of the latest decisions made by that Court, upon a careful review of all the prior adjudications made by that tribunal. The Supreme Court of the United States is the recognized interpreter and expounder of the Federal Constitution, and its decision upon the question now under consideration, is binding authority upon this Court. In the case of McCracken vs. Hayward, 2 Howard’s Reps, 612, the Court says: “ 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 dimmish 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.” Again the Court says: “.The obligation of the contract between the parties in this case, was to perform the promises and undertakings contained therein; the right of the plaintiff was to damages for the breach thereof, to bring suit and obtain a judgment, tó take out and prosecute an execution against the defendant till the judgment was satisfied, pursuant to the existing laws of Illinois. These laws, giving these rights, were as perfectly binding on the defendant, and as much a part of the contract, as if they had been set forth in its stipulations in the very words of the law relating to judgments and executions.” In the case of Van Hoffman vs. The City of Quincy, (4 Wallace Rep., 550), decided in 1866, the Court, after receiving and commenting upon the previous adjudications made upon this question in the Supreme Court of the United States, says: “ It is also settled, that the lavos which subsist 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, as if they were expressly referred to, or incorporated in its terms. This principle embraces alike those-which affect its validity, construction, discharge, and enforcement.” On page 554 the Court, speaking of the distinction between the obligation of the contract and the remedy, says: “ The doctrine upon that subject, by the latest adjudications of this Court, render the distinction' one rather of form than substance. A right without a remedy is as if it were not. For every beneficial purpose, it may be said not to exist. A different result would leave nothing of the contract but an abstract right of no practical value, and render the protection of the Constitution a shadow and a delusion. Nothing can be more material to the obligation of a contract than the means of enforcement. Without the remedy, the contract may, indeed, in the sense of the law, be said not to exist, and its obligation to fall within the class of those social duties which depend, for their fulfilment, wholly upon the will of the individual. The ideas of validity and remedy are inseparable, and both are parts of the obligation which is guaranteed by the Constitution against invasion.”

Again, the Court, say in that case, “ one of the tests that a contract has been impaired is, that its valve has, by legislation, been diminished. It is not, by the Constitution, to be impaired at all. This is not a question of degree, or cause, but of encroaching, in any respect, on its obligation, dispensing with any part of its force.” In Green vs. Biddle, (8 Wheaton’s R., 1), the Supreme Court of the United States, thus state the rule in regard to laws impairing the obligation of contracts: “The objection to a law on the ground of its impairing the obligation of a contract, can never depend upon the extent of the change which the law effects in it. Any deviation from its terms, by postponing, or accelerating the period of performance which it prescribes, imposing conditions not expressed in the contract, or dispensing with the performance of those which are, however minute, or apparently immaterial in their effect upon the contract of the parties, impairs its obligation.” The soundness of this principle of the law, as applicable to contracts, has been twice distinctly recognized by this Court. See The Justices of the Inferior Court of Morgan county vs. Sparks et al., 6 Ga. R., 439 ; Winter vs. Jones, 10 Ga. R., 195. The modern doctrine asserted by the majority of this Court, “ that the Legislature has the right to change, modify, or vary the nature and extent of the remedy, provided a substantive remedy is left to the creditor,” finds no countenance or support, in the decisions of the Supreme Court of the United States, whenever such change, modification, or variance impairs the obligation of the contract, or hinders, or obstructs its enforcement. The Constitution of the United States declares, that “ No State shall pass any law impairing the obligation of .contracts.” We have shewn, by the decisions of the Supreme Court of the United States, (which are binding authority upon this Court, in regard to the question involved), what is the well established rule in regard to impairing the obligation of contracts, as well as what constitutes the obligation of a contract. Now, let-us examine and see whether the Act of 1868, according to the latest adjudications of that Court, impairs the obligation of the plaintiff’s contract in this case. When the contract was made, in 1661, the law, as it then existed, did not allow the defendant to prove, upon the trial of a' suit for the enforcement of his contract, by way of defence, that he-had tendered, or offered to tender, him Confederate money, in payment of his debt, did not allow him to prove, upon the trial, the destruction or loss of his property by emancipation, or other cause, or to prove, upon the faith of what property the credit was given to him, or to prove the amount and value of the property owned by him at the time the debt was contracted, or that he had lost his property by the default of any person, and especially did not the existing laio at the time the contract was made, allow the defendant, upon, proof of these facts, or any of them, to have'the plaintiff’s debt reduced in amount, to such a sum asthe jury, who might try the case, should think to be just and equitable; but, by the Act of 1868, the defendant can prove any or all of these facts, as a legal defence, ánd thereupon, the Act declares that the jury which try the case, shall have power to reduce the amount of his debt, according to the equity of his case, as made by the aforesaid evidence, and render such verdict as to them, shall appear just and equitable, under the aforesaid evidence. In other words, the Act makes certain facts a legal defence to the plaintiff’s suit, which were not a legal defence when the contract was made, authorizes the defendant to prove them on the trial, and thereby, reduce the amount of his debt, as the jury, upon consideration of such facts, shall deem to be equitable and just. In short, by this manipulating process, to make a new and different contract for him, from the one. made by the contracting parties, under the existing law, at the time the contract was made, creating a new and different obligation on the part of the defendant to perform it, to the prejudice of the plaintiff’s rights, as the same existed under the law, at- the time of making the contract. One thing is very certain, that the rights of the parties, under the contract and the obligation to perform it, are not the same now, under the provisions of the Act of 1868, as they were under the law which existed, applicable to the contract at the time it was made.

In the case of Van Hoffman vs. The City of Quincy, before cited, the Supreme Court says, that “ one of the tests that a contract has been impaired, is, that its value has, by legislation, been diminished.” Apply that test to the plaintiff’s contract in this case. Would any rational man give as much for this contract, and the defendant’s obligation to perform it, now, since the passage of the Act of 1868, authorizing the defendant to prove in his defence the facts specified therein, with power given to the jury to reduce the amount of-the debt, on proof of such facts, as he would have given for it under the law as it existed at the time the contract was made? If not, why not ? The answer is obvious to any rational mind. It is because the Act of 1868 renders that contract, and the obligation to perform it, less valuable on account of the defences allowed by that Act, and the power given to the jury by it to reduce the debt as to them may seem just and equitable. The law that existed and controlled the rights of the parties at the time the contract was made,- has been changed, whereby the plaintiff’s rights have been injured, and the defendant’s obligations to perform that contract imposed on him by the existing law at the time the contract was made, has been impaired by that Act to the plaintiff’s prejudice.

But it is said this Act only changes the remedy, only changes the rules of evidence, and that it is competent for the Legislature to do that without impairing the obligation of the contract. It is true, the Legislature have the constitutional power to alter and change the remedy, to alter and change the rules of evidence: provided always, that in doing so, the obligation of the contract is not impaired, within the true intent and meaning of the Constitution. It is not true, however, that the Legislature have the power, either under the pretext to alter and change the remedy /or under the pre-text to alter and change the rules of evidence, to impair the obligation of contracts. It makes no difference under what name or pretext the injury is done, the question to be answered in this case is, whether the Act of 1868 impairs the obligation of the plaintiff’s contract as the same existed under the law at the time the contract was made ¶ According to the principles recognized and adjudicated by the Supreme Court of the United States in the cases before cited, this Act of the Legislature most clearly and unquestionably impairs the obligation of the plaintiff’s contract, and is, therefore, unconstitutional and void.

It has been said in this case, however, that if the jury should reduce the plaintiff’s debt, other than the equities between the parties permit, it will be the duty of the Court to set the verdict aside. What equities ? Such equities, I suppose, as spring out of the facts authorized to be proved by the defendant in his defence to the note, under the Act of 1868, which did not constitute any legal defence thereto at the time the contract was made. But if the Act is constitutional, then the evidence authorized to be submitted to the jury under it is legal evidence, and the jury have the right to consider it, and act upon it, and are expressly clothed with power, by the Act, to reduce the amount of the plaintiff’s debt as to them shall appear just and equitable. If the jury shall do what the Act expressly empowers them to do, it is extremely difficult to perceive what legal right the Court would have to set aside their verdict. Under the Act, the jury have the poioer, under the evidence authorized by it, to render such verdict as to them shall appear just and equitable. If the Act is constitutional, and the evidence before the jury is legal evidence, and the jury return a verdict upon it reducing the amount of the plaintiff’s debt, what legal right or power has the Court, under this Act, to set their verdict aside? The verdict would not be contrary to law, if the Act is constitutional, nor contrary to the evidence; the power to reduce the debt is expressly conferred upon the jury by the Act, and therefore the Court would have legal right to interfere with their verdict. But take the other view of the question, and hold that the Courts have the legal right to set aside the verdict, if the jury shall impair the obligation of the plaintiff’s contract by reducing his debt, then it is quite apparent that the Act'of 1868, for the relief of debtors, practically amounts to nothing, it is mere brutum fulmen. The plain truth, however, is, that the Legislature intended to provide for the relief of debtors in the manner indicated by the Act, and did not intend that the Courts should set aside the verdicts of the juries, if they reduced the plaintiff’s debt, and thereby render the Act a practical nullity.

It was contended, on the argument, that the Act of 1868 stood upon the same footing as the ordinance of the Convenvention of 1865, and that this Court had held that ordinance to be constitutional. That ordinance simply provided, that in any suit for the enforcement of any contract specified therein, the parties might show the particular currency in which payment was to be made, and the value of such currency, etc. The object of that ordinance was, not to impair the obligation of contracts, but to enforce them according to the actual value thereof in good money. If the contract was payable in Confederate dollars, it allowed evidence to be given as to the value of Confederate dollars in good money, and what was the value of the consideration of the contract in good money, so as to maintain and enforce the obligation of the contract upon the principles of equity, as regulated by law. See Oliver & Wooten vs. Coleman et al., 36th Ga. Rep., 555. The rights of the people in this State to their property and effects are regulated and protected by law, and are not dependent upon the abstract notions of equity which a Court or jury may entertain of them. It is the law of the land which regulates and controls the rights to property in this State. There is no equity which is above or independent of the law. The Code declares that “equity is ancillary, not antagonistic, to the law: hence, equity folloivs the law, where the rule of law is applicable, and the analogy of the law, where no rule is directly applicable.” Code, section 3028. I am aware that sporadic decisions, made by the State Courts, can be cited in favor of impairing the obligation of contracts, though professing not to do so, under the pretext of regulating the remedy and the admissibility of evidence, but these decisions have generally been made under the pressure of public opinion, in times of pecuniary’ embarrassment, when the relief spasm was upon the people; sometimes made by Judges who were expressly appointed for the purpose of making such decisions during that period of time; but such decisions, so made, are entitled to very little consideration in the face of the plain provisions of the Constitution, and the plain interpretation thereof by the repeated decisions of the Supreme Court of the United States, -which have already been cited, and which are binding ■ authority upon this question. The great weight of judicial authority in the several States is, however, in favor of maintaining the in tegrity of the Constitution, and protecting the inviolability of the obligation of contracts. That there should have been any conflict of decisions in the State Courts upon this question, only proves, that when there is a will to impair the obligation of contracts, subtle, crafty, unscrupulous men can always find a way to do it. Robbery, under the form and color of law, is the meanest sort of robbery. The highwayman who presents his pistol to the head of the traveler, and commands him to .stand and deliver, incurs some personal risk, but those who rob under the form and color of law, accomplish the same object as the highwayman, without the least personal danger to themselves. The common and usual pretext for violating the Constitution, is under the form of remedial legislation, or by altering the rules of evidence. These pretexts and excuses, though often specious and plausible, will not bear the test of legal criticism. But the Supreme Court say, in the case of Van Hoffman vs. The City of Quincey, before cited, that the distinction between the contract and the remedy, by. the latest adjudications of that Court, is one rather of “form than substance.” This is sound doctrine'. What is a man's right to his contract worth, at the time of making it, without the remedy afforded by the then existing law to enforce it ? If the Act of 1868 is constitutional, it illustrates very clearly what the plaintiff's right to his contract in this case is worth now. The Constitution of the United States is the fundamental and paramount law for the government of the Courts and people of this State. It has been justly remarked, by an eminent civilian, that “to attack .the Constitution of the State, and to violate its laws, is a capital crime against society, and if those guilty of it are invested with authority, they add to this crime' a perfidious abuse of the power with which they are intrusted. Mattel, 9, section 30. In view of the obligation imposed upon me to support and maintain the integrity of the Constitution of the United States, which declares that “no State shall pass any law impairing the obligation of contracts,” and not entertaining the least doubt that the Act of 1868, both upon principle and the authority of the decisions of the Supreme Court of the United States, is a palpable violation of that Constitution, I am unwilling to embalm myself in my own infamy, upon the records of this Court, as a debauched judicial officer, in holding that Act to be constitutional ; therefore, I dissent from the judgment of the Court in this case.