a substantial remedy according to the course of justice as it existed at the time the contract was made, but shows upon its face an intention to clog, hamper, or embarrass the proceedings to enforce the remedy, so as to destroy it entirely, and thus impair the contract so far as it is in the power of [* 290] the legislature to do it, such statute cannot be regarded as a mere regulation of the remedy, but is void, because a substantial denial of right.1

*

It has also been held where a statute dividing a town and incorporating a new one enacted that the new town should pay its proportion towards the support of paupers then constituting a charge against the old town, that a subsequent statute exonerating the new town from this liability was void as impairing the contract created by the first-mentioned statute; 2 but there are cases which have reached a different conclusion, reasoning from the general and almost unlimited control which the State retains over its municipalities. In any case the lawful repeal of a statute cannot constitutionally be made to destroy contracts which have been entered into under it; these being legal when made, they remain valid notwithstanding the repeal.1

So where, by its terms, a contract provides for the payment of money by one party to another, and, by the law then in force, property would be liable to be seized, and sold on execution to the highest bidder, to satisfy any judgment recovered on such contract, a subsequent law, forbidding property from being sold on execution for less than two-thirds the valuation made by appraisers, pursuant to the directions contained in the law, though professing to act only on the remedy, amounts to a denial or obstruction of the rights accruing by the contract, and is directly obnoxious to the prohibition of the Constitution. So a law which

Welborn v. Akin, 44 Geo. 420. But this is denied as regards contracts entered into before the passage of the law. Walker v. Whitehead, 16 Wall. 314.

1 Oatman v. Bond, 15 Wis. 28. As to control of remedies, see post, p. *361.

112.

Sedgwick, 15 Cal. 515; McCauley v. Brooks, 16 Cal. 11; Commonwealth v. New Bedford Bridge, 2 Gray, 339; State v. Phalen, 3 Harr. 441; State v. Hawthorn, 9 Mo. 389.

5 McCracken v. Hayward, 2 How. 608; Willard v. Longstreet, 2 Doug.

2 Bowdoinham v. Richmond, 6 Me. (Mich.) 172; Rawley v. Hooker, 21

in note.

Ind. 144. So a law which, as to ex

See ante, p. *193, and cases cited isting mortgages foreclosable by sale, prohibits the sale for less than half the appraised value of the land, is

4 Tuolumne Redemption Co. v.

takes away from mortgagees the right to possession under their mortgages until after foreclosure is void, because depriving them of the right to the rents and profits, which was a valuable portion of the right secured by the contract. "By this act the mortgagee is required to incur the additional expense of foreclosure, before obtaining possession, and is deprived of the right to add to his security, by the perception of the rents and profits of the premises, during the time required to accomplish this and the time of redemption, and during that time the rents and profits are given to another, who may or may not appropriate them to the payment of the debt, as he chooses, and the mortgagee in the [* 291] mean time is subjected to the risk, often considerable, of the depreciation in the value of the security." So a law is void which extends the time for the redemption of lands sold on execution, or for delinquent taxes, after the sales have been made; for in such a case the contract with the purchaser, and for which he has paid his money, is, that he shall have title at the time then provided by the law; and to extend the time for redemption is to alter the substance of the contract, as much as would be the extension of the time for payment of a promis

*

66

void for the same reason. Gantley's Lessee v. Ewing, 3 How. 707; Bronson v. Kinzie, 1 How. 311. And a law authorizing property to be turned out in satisfaction of a contract is void. Abercrombie v. Baxter, 44 Geo. 36. The scaling laws," so called, under which contracts made while Confederate notes were the only currency, are allowed to be satisfied on payment of a sum equal to what the sum called for by them in Confederate notes was worth when they were made, have been sustained, but this is on the assumption that the contracts are enforced as near as possible according to the actual intent. Harmon v. Wallace, 2 S. C. N. s. 208; Robeson v. Brown, 63 N. C. 554; Hillard v. Moore, 65 N. C. 540; Pharis v. Dice, 21 Grat. 303; Thornington v. Smith, 8 Wall. 1.

1 Mundy v. Monroe, 1 Mich. 76; Blackwood v. Vanvleet, 11 Mich. 252. Compare Dikeman v. Dikeman, 11

Paige, 484; James v. Stull, 9 Barb. 482; Cook v. Gray, 2 Houston, 455. In the last case it was held that a statute shortening the notice to be given on foreclosure of a mortgage under the power of sale, from twentyfour to twelve weeks, was valid as affecting the remedy only; and that a stipulation in a mortgage that on default being made in payment the mortgagee might sell "according to law," meant according to the law as it should be when sale was made. But see Ashuelot R. R. Co. v. Eliot, 52 N. H. 387, and what is said on the general subject in Cochran Darcy, 5 Rich. 125. In Bathold v. Fox, 13 Minn. 501, it was decided that in the case of a mortgage given while the law allowed the mortgagee possession during the period allowed for redemption after foreclosure, such law might be so changed as to take away this right. But quere.

v.

sory note.1 So a law which shortens the time for redemption from a mortgage, after a foreclosure sale has taken place, is void; the rights of the party being fixed by the foreclosure and the law then in force, and the mortgagor being entitled, under the law, to possession of the land until the time of redemption expires.2 And where by statute a purchaser of lands from the State had the right, upon the forfeiture of his contract of purchase for the non-payment of the sum due upon it, to revive it at any time before a public sale of the lands, by the payment of all sums due upon the contract, with a penalty of five per cent, it was held that this right could not be taken away by a subsequent change in the law which subjected the forfeited lands to private entry and sale. And a statute which authorizes stay of exe- [* 292] cution, for an unreasonable or indefinite period, on judgments rendered on pre-existing contracts, is void, as postponing payment, and taking away all remedy during the continuance of the stay. And a law is void on this ground which declares a for

1 Robinson v. Howe, 13 Wis. 341; Dikeman v. Dikeman, 11 Paige, 484; Goenen v. Schroeder, 8 Minn. 387. But see Stone v. Basset, 4 Minn. 298; Heyward v. Judd, 4 Minn. 483; Freeborn v. Pettibone, 5 Minn. 277.

2 Cargill v. Power, 1 Mich. 369. The contrary ruling was made in Butler v. Palmer, 1 Hill, 324, by analogy to the Statute of Limitations. The statute, it was said, was no more in effect than saying: "Unless you redeem within the shorter time prescribed, you shall have no action for a recovery of the land, nor shall your defence against an action be allowed, provided you get possession." And in Robinson v. Howe, 13 Wis. 346, the court, speaking of a similar right in a party, say": "So far as his right of redemption was concerned, it was not derived from any contract, but was given by the law only; and the time within which he might exercise it might be shortened by the legislature, provided a reasonable time was left in which to exercise it, without impairing the obligation of any con

*

tract." And see Smith v. Packard, 12 Wis. 371, to the same effect.

8 State v. Commissioners of School and University lands, 4 Wis. 414.

4 Chadwick v. Moore, 8 W. & S. 49; Bunn v. Gorgas, 41 Penn. St. 441; Stevens v. Andrews, 31 Mo. 205; Hasbrouck v. Shipman, 16 Wis. 296. In Breitenbach v. Bush, 44 Penn. St. 313, and Coxe v. Martin, 44 Penn. St. 322, it was held that an act staying all civil process against volunteers who had enlisted in the national service for three years or during the war was valid, during the war" being construed to mean unless the war should sooner terminate. See also State v. Carew, 13 Rich. 498. A general law that all suits pending should be continued until peace between the Confederate States and the United States, was held void in Burt v. Williams, 24 Ark. 94. See also Taylor v. Stearns, 18 Grat. 244; Hudspeth v. Davis, 41 Ala. 389; Aycock v. Martin, 37 Geo. 124; Coffman v. Bank of Kentucky, 40 Miss. 29; Jacobs v. Smallwood,

feiture of the charter of a corporation for acts or omissions which constituted no cause of forfeiture at the time they occurred.1 And it has been held that where a statute authorized a municipal corporation to issue bonds, and to exercise the power of local taxation in order to pay them, and persons bought and paid value for bonds issued accordingly, this power of taxation is part of the contract, and cannot be withdrawn until the bonds are satisfied; that an attempt to repeal or restrict it by statute is void; and that unless the corporation imposes and collects the tax in all respects as if the subsequent statute had not been passed, it will be compelled to do so by mandamus.2 And it has also been held that a statute repealing a former statute, which made the stock of stockholders in a corporation liable for its debts, was, in respect to creditors existing at the time of the repeal, a law impairing the

*

obligation of contracts. In each of these cases it is evi[* 293] dent that substantial rights were affected; and so far as the laws which were held void operated upon the remedy, they either had an effect equivalent to importing some new stipulation into the contract, or they failed to leave the party a substantial remedy such as was assured to him by the law in force

63 N. C. 112; Cutts v. Hardee, 38 Geo. 350; Sequestration Cases, 30 Tex. 688. A law permitting a year's stay upon judgments where security is given was held valid in Farnsworth v. Vance, 2 Cold. 108; but this decision was overruled in Webster v. Rose, 6 Heisk. 93; s. c. 19 Am. Rep. 583.

A statute was held void which stayed all proceedings against volunteers who had enlisted "during the war," this period being indefinite. Clark v. Martin, 3 Grant's Cas. 393. In Johnson v. Higgins, 3 Met. (Ky.) 566, it was held that the act of the Kentucky legislature of May 24, 1861, which forbade the rendition in all the courts of the State, of any judgment from date till January 1st, 1862, was valid. It related, it was said, not to the remedy for enforcing a contract, but to the courts which administer the remedy; and those courts, in a legal sense, constitute no part of the remedy. A law ex

empting soldiers from civil process until thirty days after their discharge from military service was held valid as to all contracts subsequently entered into, in Bruns v. Crawford, 34 Mo. 330. And see McCormick v. Rusch, 15 Iowa, 127. A statute suspending limitation laws during the existence of civil war, and until the State was restored to her proper relations to the Union, was sustained in Bender v. Crawford, 33 Tex. 745. Compare Bradford v. Shine, 13 Fla. 393.

1 People v. Jackson and Michigan Plank Road Co., 9 Mich. 285, per Christiancy, J.; State v. Tombeckbee Bank, 2 Stew. 30. See Ireland v. Turnpike Co., 19 Ohio, N. s. 373.

2 Van Hoffman v. Quincy, 4 Wall. 535. See also Soutter v. Madison, 15 Wis. 30; Smith v. Appleton, 19 Wis. 468.

3 Hawthorne v. Calef, 2 Wall. 10.

when the contract was made. In Pennsylvania it has been held that a statute authorizing a stay of execution on contracts in which the debtor had waived the right was unconstitutional; 1 but it seems to us that an agreement to waive a legal privilege which the law gives as a matter of State policy cannot be binding upon a party, unless the law itself provides for the waiver.2

3

Where, however, by the operation of existing laws, a contract cannot be enforced without some new action of a party to fix his liability, it is as competent to prescribe by statute the requisites to the legal validity of such act as it would be in any case to prescribe the legal requisites of a contract to be thereafter made. Thus, though a verbal promise is sufficient to revive a debt barred by the Statute of Limitations or by bankruptcy, yet this rule may be changed by a statute making all such future promises void unless in writing. It is also equally true that where a legal impediment exists to the enforcement of a contract which parties have entered into, the constitutional provision in question will not preclude the legislature from removing such impediment and validating the contract. A statute of that description would not impair the obligation of contracts, but would perfect and enforce it. And for similar reasons the obligation of contracts is not impaired by continuing the charter of a corporation for a certain period, in order to the proper closing its business.5

State Insolvent Laws. In this connection some notice may seem requisite of the power of the States to pass insolvent laws, and the classes of contracts to which they may be made to apply. As this whole subject has been gone over very often and very fully by the Supreme Court of the United States, and the important questions seem at last to be finally set at rest, and moreover as it is comparatively unimportant while a federal bankrupt law exists, we shall * content ourselves with giving [* 294] what we understand to be the conclusions of the court.

1 Billmeyer v. Evans, 40 Penn. St. 324; Lewis v. Lewis, 44 Penn. St. 127. See Laucks' Appeal, 24 Penn. 426; Case v. Dunmore, 23 Penn. 93; Bowman v. Smiley, 31 Penn. 225.

2 See Conkey v. Hart, 14 N. Y. 30; Handy v. Chatfield, 23 Wend. 35. 8 Joy v. Thompson, 1 Doug. (Mich.) 373; Kingsley v. Cousins, 47 Me. 91.

to

4 As where the defence of usury a contract is taken away by statute. Welsh v. Wadsworth, 30 Conn. 149; Curtis v. Leavitt, 15 N. Y. 9. And see Wood v. Kennedy, 19 Ind. 68, and the cases cited, post, pp. *375, *376.

245.

5 Foster v. Essex Bank, 16 Mass.