Cook v. Gray

THIS cause came up on a case stated and questions of law reserved for a hearing before all the Judges of the Court of Errors and Appeals at the last term and was held under advisement by them until the present, when their opinion was delivered.

By the written case as stated, it appeared that a writ ofcapias in an action on the case at the suit of Andrew D. Cook, the plaintiff, against George Goss and John McGinniss trading as the firm of Goss McGinniss, was issued on the 12th day of July, 1856, returnable to the November Term of that year in the Superior Court for New Castle County, and that Andrew C. Gray, the defendant, became special bail for George Goss in it, John McGinniss, the other partner, having been returned to the writ non est inventus. The recognizance of bail was entered into by him on the 10th day of September, 1857. The action proceeded to issue and on the 28th day of November, 1859, judgment was confessed in it by Goss, the defendant, for $5,551. Upon the 14th day of March, 1860, a writ of capias adsatisfaciendum was issued on the judgment against Goss and delivered to the sheriff of the county returnable at the ensuing May Term of the court, when it was returned non est inventus. But no affidavit of fraud had been filed in the case previous to the issuing of the last mentioned writ, pursuant to the provisions of section 52 of chapter 111 of the Revised Statutes of the State, which among other things provided that no such writ should in any case be issued upon a judgment at the suit of a person not at the time such judgment was recovered residing within the State, without an oath or affirmation first made and filed in the office of the prothonotary, that the defendant in the judgment was justly indebted to the plaintiff in it in a sum exceeding fifty dollars and that he verily believed the defendant had disposed of his property to the value of more than that sum, with the intent to defraud his creditors. And that neither Cook nor Goss had ever been citizens of, or resident in the State.

It was thereupon agreed that if the court should be of opinion that the fact stated that the said last mentioned writ Was lawfully issued, the judgment should be for the plaintiff, the amount of it to be ascertained by the prothonotary, but if otherwise, then for the defendant.

The action in the case stated was on a scire facias at the suit of Cook, the plaintiff, on the recognizance of bail in the action before mentioned, against Gray, the defendant. This case comes up on a case stated and questions reserved for hearing before all the Judges.

It appears from the record that the plaintiff, Andrew D. Cook, instituted suit against one George Goss on the 12th of July, 1856, that Andrew C. Gray became the special bail of Goss on the 10th of September, 1857, and that judgment was recovered against the latter on the 23d of November, 1859.

On the 14th of March, 1860, a writ of ca. sa. was sued out against Goss returnable to the next May term, which, in due course, was returned by the sheriff non est inventus. Both Cook and Goss were non-residents of this State, at the time the judgment was recovered.

A writ of scire facias was sued out against Andrew C. Gray, as special bail, on the 10th of June, 1860, returnable to the November term following.

At the time Mr. Gray became special bail, the fifty-second section of chapter one hundred and eleven of the revised statutes of this State, was in full force.

By the concluding paragraph of this section, it is declared that no writ of capias ad satisfaciendum, shall, in any case, be issued upon a judgment at the suit of a person not at the time such judgment is recovered residing within this State, without an affidavit of fraud first made and filed as therein before is specially provided. Afterward, on the 21st of February, 1859, for reasons not generally understood, the legislature was induced to repeal the said concluding paragraph of section fifty-two. This was done after the entering of special bail, and before the recovery of judgment against Goss. The repealing act contains no saving, as to pending suits; it merely declares "that the concluding paragraph, being the last six lines of section fifty-two of chapter one hundred and eleven of the revised statutes of the State of Delaware be, and the same hereby is stricken out, and repealed."

No affidavit of fraud was made and filed by the plaintiff prior to the issuing of the writ of capias ad satisfaciendum: and this circumstance, in connection with the construction to be given to the act of the legislature of the 21st of February, 1859, has given rise to the controversy in this suit, — a controversy, involving a consideration of the power of a state to change or modify, by legislation, the remedies given by the existing law, for the enforcement of contracts.

Upon this state of facts two questions have been submitted for our decision. First, Whether the repealing statute of the 21st of February, 1859, impairs the obligation of the contract entered into by the defendant, as special bail? Second, Whether the said repealing statute should be so construed as to give to it a retrospective operation? Both of these questions have been very elaborately and ably argued by counsel on both sides; and most of the authorities, having a bearing upon the subject have been brought to our attention. We propose to consider these questions in the order in which they have been presented. In regard to the first, it may be proper to observe generally, that a distinction is taken in the books, between a contract, and the obligation of a contract. Indeed, the distinction seems so manifest from the very terms of the constitution, as to require no aid from judicial interpretation or authority to support it. A contract is defined to be a compact between two or more persons; or, an agreement to do, or not to do, a particular thing. It matters not whether the contract be executed or executory, — expressed in terms, or implied by law. It may in form be a grant, which, in effect, is a contract, but a contract executed, the obligation of which continues to exist for its protection. The constitution makes no discrimination whatever, between different kinds or classes of contracts. By its terms and its spirit, it comprehends and takes under its protection all that are valid of every description.

The obligation of a contract, that is to say, the civil obligation, for this alone as distinguished from the merely moral obligation, is intended to be protected by the constitution, is that law which binds a party to perform his undertaking; and it consists in the effective force of the law which applies to, and compels performance of the contract, or a compensatory equivalent in the way of damages for non-performance. It is not in the contract itself, that the obligation as an inherent quality, can properly be said to reside, but in the law of the contract.

The broad and unqualified doctrine, that the existing laws of a state enter into, and form an essential part of the contract, would, it seems, if carried out to its logical results, operate most injuriously in restraint of the legislative power of the states over subjects hitherto considered as being clearly within their legitimate jurisdiction. Do all the laws of the state, enter into and form part of the contract? If not all, then what portion of them? and where are we to draw the line of discrimination between those that enter into the contract, as one of its conditions or stipulations, and those which do not? This, at least, is certain, — the doctrine that the law of the remedy enters into the contract, finds no sanction in the decisions of Chief Justice Marshall, or the other great Judges of his day; and the only decisions which seem to give countenance to such a doctrine, are of comparative modern origin, and claim a different paternity. It would appear, therefore, to be the part of wisdom to adhere to the old doctrine, that, whilst the laws of a state where a contract is made, determine its validity, construction, and obligation, they do not in fact enter into and become an essential part of the contract itself.

The distinction between the obligation of a contract, and the remedy for its enforcement, ought to be considered as well established. It was first authoritatively settled in the year 1819, in the case ofSturgis v. Crowninshield, 4 Wheaton, 122. Chief Justice Marshall, who delivered the decision of the court in that case, says, that "the distinction is founded in the nature of things, and that without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the legislature shall direct." And this doctrine, has been recognized and affirmed, by a long series of decisions, from that day to this.

In the case of the Charles River Bridge v. Warren Bridge etal., 11 Peters 581, Mr. Justice McLean declares, "that after a careful examination of the questions adjudged by the Supreme Court they seem not to have decided, in any case, that the contract is impaired within the meaning of the federal constitution, where the action of the state has not been on the contract." Even as late as the case of Butler et al. v. Pennsylvania, reported in 10Howard 416, the Supreme Court say, that the contracts designed to be. protected by the tenth section of the first article of the constitution of the United States, are "contracts by which perfect rights — certain, definite, fixed private rights of property, are vested." What vested right, what property, can a party have in a mere remedy? The same distinction between the obligation and the remedy, is to be found in Mason v. Haile, 12 Wheaton, 370. Also inBronson v. Kinzie, 1 Howard 315, where Chief Justice Taney says, "a state may undoubtedly regulate at pleasure the mode of proceeding in its courts, in relation to past contracts, as well as future." So also, in McCracken v. Hayward, 2 Howard 608, in which Judge Baldwin concedes the power of the state to "prescribe and shape the remedy." We might cite many other authorities, but it is not our purpose to go into a critical examination of the numerous decisions, bearing more or less directly on the question, which have been made in the Federal and State Courts. The distinction may, perhaps, be considered a nice one, and it may sometimes be very difficult to determine whether a law affects the remedy or impairs the right.

Nevertheless, without undertaking to criticise the wisdom of the distinction, it is surely enough for us to know that it has been authoritatively settled and uniformly held by the federal tribunals. But whilst I say this, I must in candor admit that the cases ofBronson v. Kinzie, and McCracken v. Hayward go further in favor of the theory that the existing law is incorporated into the contract, than any of the cases which preceded them; and that they have a tendency, especially the latter, to confine the operation of the distinction between the right and the remedy, within narrower limits, than is justified by previous decisions in the same court.

It is however, worthy of remark, in respect to these cases that they might have been decided on other grounds, without touching the constitutional question — that the court was not unanimous — that they were decided without argument on the constitutional question — and that in fact, they constitute an unwise departure from the settled practice of the court, never to decide so grave a question as the constitutionality of a state law, unless the question were necessarily involved in the decision of the case before the court. In neither of these cases was the question of the constitutionality of the laws of Illinois properly before the court for its decision.

By the act of Congress of the 29th September, 1789, it was provided "that the forms of writs and executions, except their style, in the circuit and district courts, in suits at common law, shall be the same in each state respectively, as are now used or allowed in the Supreme Courts of the same." And by the act of the 8th of May, 1792, this provision is substantially re-enacted, "subject to such alterations and additions as the courts respectively shall, in their discretion deem expedient."

On the 2d of March, 1793, congress by an other act declared in substance that writs of fi. fa. issuing out of the courts of the United States, should as to their execution, and the appraisement of property taken under them, conform to the practice in similar proceeding in the state courts.

Under this state of the law, the cases of Wayman v. Southard, 10 Wheaton 2, and The Bank of the United States v.Halstead, 10 Wheaton 51 arose, involving as it was thought, the constitutionality of certain laws of the State of Kentucky in relation to execution process; but the Supreme Court of the United States held that the acts of Congress of 1789, and of 1792 did not apply to States subsequently admitted into the Union; and that, as the Kentucky statutes had not been adopted by the Circuit Court of the United States for the State of Kentucky, they did not apply to the United States Courts. The Supreme Court therefore declined to decide the question of the constitutionality of those laws.

In consequence of these decisions Congress passed the process act of May 19th, 1828, which declares "that writs of execution and other final process issued on judgments and decrees rendered in any of the Courts of the United States and the proceedings thereupon, shall be the same as are now used in the courts of the states." And it provided "that it should be in the power of the courts, if they see fit, in their discretion, by rules of court, so far to alter final process in said courts, as to conform the same to any change which may be adopted by the legislature of the respective states for the state courts."

By this law of 1828, the Circuit Court had authority to adopt the Illinois statutes in regard to final process. But its authority was to adopt them as a whole, and not in part only. The Circuit Court, however, undertook to alter and adopt them in part only, which was not warranted by the act of Congress of 1828, and so the Supreme Court held. Hence, there was no adoption of the Illinois statutes according to the meaning of the act, and the question of their constitutionality was not legitimately before the court for adjudication. And yet a majority of the Judges assumed, contrary to the settled practice of the court, to decide without argument, a grave constitutional question not properly before them, and the deciding of which was not necessary to the decision of the cases before the court. Judge McLean in dissenting from the opinion of the majority of the court says that the points certified from the Circuit Court, "would be answered by saying that the acts of the legislature referred to can have no operation in the case." And he expresses his regret that the court deemed it "necessary or proper to consider the constitutionality of the above acts, and holding them unconstitutional" — the decision of the matters before the court not requiring this judgment. And he remarks "it is the more to be regretted, as there was no argument, written or oral, to sustain these laws."

Mr. Justice Catron says in the case of McCracken v. Hayward, "I have formed no opinion, whether the statute of Illinois is constitutional or otherwise. The question raised on it is one of the most delicate and difficult of any presented to this court; and as our decision affects the state courts throughout, in their practice, I feel unwilling to form or express any opinion on so grave a question, unless it is presented in the most undoubted form, and argued at the bar."

Under these circumstances, we may well view with caution the tendency of these decisions, to ignore to some extent at least, the distinction between the right and the remedy, — a tendency, which finds no sanction in the previous decisions of the court, and which, as it appears to us, would be both unsound and unwise to follow.

It has been insisted for the defendant that the 52 section formed part of the contract of bail, and that as a consequence the making and filing an affidavit of fraud as prescribed by that section, became a condition precedent to the issuing of the writ of capias adsatisfaciendum. If this position be sound, the plaintiff must fail.

But it is to be remarked that the entire chapter to which the 52 section belongs, has relation to the remedy — its whole object being to regulate execution process. Now, all the processes in a cause, whether original, mesne or intermediate, or final, are of the remedy. In a general or comprehensive sense, the term process signifies all the proceedings in an action from its inception to its conclusion. All that the legislature has done, has been to alter the mode of procedure — to do away with the affidavit of fraud, which, before the repeal, was but one of a series of steps or processes, each tending to the same end, and all belonging to the remedy. If arrest and imprisonment are of the remedy, as it must be conceded they are, why is not the affidavit of fraud of the same character? And if it is competent, as it undoubtedly is, for the legislature to abolish imprisonment as to past contracts, without impairing the obligation, why may not the state by the same instrumentality, constitutionally dispense with an affidavit of fraud? We confess ourselves unable to discover any satisfactory reason why it may not do so.

We think, therefore, that the repealing statute did not touch the obligation, but merely modified the remedy. Having arrived at this conclusion, it remains for us to consider the second question, as to whether, according to the settled rules of construction, the repealing statute, can be given a retrospective operation? Whether it is just or wise, as a general thing, to pass retropective laws is not the question. We must be content to administer the law as we find it settled by authority, and not as we would have it to be. We have abundant authority for saying that the states may enact such laws. Nothing certainly can be found either in the federal constitution, or the constitution of this state, prohibiting them, unless they are properly ex post facto laws, or laws impairing the obligation of contracts. Subject to these exceptions, the constitutional powers of the state cannot be doubted.

But it is contended that, in the absence of express evidence of legislative intent that the law should operate retrospectively, the court will not so construe it. And this is true as a general proposition, but it is not so, universally, as we shall presently endeavor to show.

Numerous cases have been cited by the counsel for the defendant, in support of this position, all of which have been carefully examined.Gilmore v. Shooter, 2 Mod. 310. Couch q. t. v. Jeffries, 4Burr. 2460. Moon v. Durden, 2 Exch. 33. Dash v. Van Kleek, 7 Johns. 477. Johnson v. Burrell, 2 Hill 238. ThePeople v. Curual, 2 Seld. 463. Boyd v. Barringer,23 Miss. 421. Plumb, v. Sawyer, 21 Conn. 351. Bedford v.Skilling et al. 4 Serg. and Rawle, 401.

Whilst we find no fault whatever with the law of these cases, it is proper to remark that they differ from the case before us in very important particulars. They are all, I think, without exception, cases relating to positive enactments, and involving vested rights, of one kind or another. The case which we are called on to decide is the case of a repealing statute, involving no right of the defendant, either vested or inchoate, but simply effecting a modification of the plaintiff's remedy.

The authorities clearly distinguish between these different kinds of statutes as to the construction to be given them. Hence, we find the rule, which, as to positive enactments, require express evidence of legislative intent in order to give them retroactive effect, has been held not to apply to repealing statutes. Indeed, it would seem that the simple fact, of an absolute repeal of a former statute, without any express saving clause, is so inherently significant of an intent to do away, utterly, with every thing which may have arisen under the abrogated statute, unless protected by the prohibitions of the federal constitution, as to require the courts to give the repealing act a retroactive operation. Butler v. Palmer, 1 Hill 324. Dwarris in his treatise on statutes and their construction, page 676, declares as the result of the English cases, that "when an act of parliament is repealed, it must be considered, except as to transactions passed and closed, as if it had never existed." And Chief Justice Tindal, in speaking of the effect of a repealing statute, says, "I take it to be, to obliterate the statute repealed, as completely from the records of parliament, as if it had never passed, and that it must be considered as a law that never existed, except for the purpose of those actions or suits which were commenced, prosecuted and concluded while it was an existing law." Key v. Goodwin, 4Moore and Payne 341. Surtees v. Elleson, 9 Barn, andCress. 750. Maggs v. Hunt, 4 Bing. 212. Key v.Gordon, 6 Bing. 576. Miller's Case 1 Wm. Blac. 451. Rex v. Justices of London, 3 Burr. 1456.

The same doctrine is recognized by the Supreme Court of the United States in Yeaton v. The United States, 5 Cranch 281, and in The Schooner Rachel v. the same, 6 Cranch 329, where it was held that the repeal of a statute giving a penalty puts an end to all actions pending for penalties under the act at the time of passing the repealing statute. And this doctrine applies, as well to civil as criminal proceedings. Butlerv. Palmer, 1 Hill 324. Stoever v. Immel, 1 Watts 258. Hammon v. Commonwealth, 7 Harris 329.

We do not mean to be understood, as maintaining, that the power of the legislature over the remedy is unlimited. To abrogate all process, and thus take away all remedy, would amount to an actual denial of justice, and would in effect impair the obligation of contracts. In this case however, neither the right, nor the remedy, is impaired; on the contrary, the latter is merely improved and facilitated.

Considering, that the repealing act of February 21, 1859, did not impair the obligation of the contract of bail, nor interfere with any vested or inchoate right of the defendant, we are of opinion that the plaintiff is entitled to recover, and we shall therefore, so certify to the Superior Court for New Castle County.

All the Judges concurred in the foregoing opinion with the exception of Wootten, J. dubitante, but who expressed no dissenting opinion.