Charles Bender v. T. H. Crawford, 33 Tex. 745

Walker, J. The question for our consideration in this case must be settled by the forty-third

section of the twelfth

article of the Constitution of 1869, which reads as follows: ■'£ The statutes of limitation of civil suits were suspended by the so-called act of secession of the twenty-eighth of January, 1861, and shall be considered as suspended within this State until the acceptance of this Constitution by the United States Congress.” . The Constitution, laws and treaties of the United States constituted the only boundary line beyond which the people of Texas could not go in declaring what should be their constitution and fundamental law.

Section ten,

article one, of the Constitution of the United States inhibits the States from passing any bill of attainder, ex post facto law, or law impairing the obligation of contracts ; and it would seem that whilst the States are forbidden to pass any law violating the obligation of contracts, the power to do so is not denied to Congress. The record shows, and the argument on either side admits, that but for the clause in our State Constitution, already quoted, the collection of the notes sued on would be barred by the laws of limitation, and this, indeed, is the only question for our examination.

It is novel to some extent. The constitutionality of statutes is often called in question, but the legality of a State constitution seldom, after the State has been admitted by Congress. And we are unable to find the question involved here more nearly adjudicated than it has been in our own State. The ease of DeCordova against the city of Galveston, 4 Texas Reports, page 470, is so closely analagous to the case at bar that we shall feel authorized, not only in adopting the opinion of the court in that case, but we shall to a great extent adopt the reasoning and the authorities which led to the opinion.

It will not be contended that the forty-third

section of the twelfth

article of our own Constitution is within the definition of an ex post facto law. The words ex post facto imply that something has been done after some other thing, in relation to the latter. The use of these words as descriptive of a law is nominally confined to the criminal law. Such a law is defined to be one which renders the act punishable in a manner it was not when committed. It extends to laws passed after the act, affecting the person by punishment for the act in his person or estate. (See 3 Dallas, 386; 1 Blackf. Ind. R., 193; 2 Pet. U. S.

R., 413; 1 Kent’s Com.) It'is said that the prohibition in the Constitution of the United States against ex post facto laws applies exclusively to criminal or penal cases, and not to civil cases. (Sedg. Con. Law, 356; 2 Pick. R., 172; 11 Pick. R., 28; 2 Root R., 350; 5 Monr., 133; 9 Mass. R., 363; 3 N. H. R., 475; 7 John. R, 488; 6 Binn. R., 271; 1 J. J. Marsh., 363; 2 Pet.

R., 681.) The ferms retrospective and ex post facto are sometimes applied as synonymous, and retroactive laws are supposed to be prohibited under the inhibition of ex post facto laws; but the power to pass retrospective laws, properly so-called, dees exist in the several States, and they are obligatory if not forbidden by their own constitutions. (4 S. & R., 364; 3 Dall. R., 396; 1 Bay. R., 179; 7 John. R., 477; 4 S. & R., 403; 1 Binn. R., 601; 3 S. & R., 169; 2 Cranch. R., 272; 2 Pet., 414; 8 Pet., 110; 11 Pet., 420; 1 Bald. R., 74; 5 Penn. St. R., 149.) An instance may be found in the laws of Connecticut.

In 1795, the Legislature passed a resolve setting aside a decree of a court of probate disapproving of a will, and granted a new hearing; and it was held that the resolve not being against any constitu- " tional principle in that State, was valid. (3 Dall., 386.) And in Pennsylvania, a judgment was opened by the act of April, 1837, which was holden by the Supreme Court to be constitutional. (2 Watks. & Serg., 276.) Laws should never be considered a3 applying to cases which arose previously to their passage, unless the Legislature or people have clearly declared such to be their intention. . (12 Law Reports, 352 ; 7 Johnson R., 477; 1 Kent Commentaries, 455; Taylor Civil Law, 168, Code 1, 14, 7; Bracton, bib. 4, fo. 228 ; Story Cons., § 1393; 1 McLean Rep.,.40 ; 1 Meigs Rep., 437 ; 3 Dall., 391; 1 Blackf.

R., 193; 2 Gallis. R., 139; 1 Yerg. R., 360; 5 Yerg. R., 320; 12 S. & R., 330.) These authorities are cited from Bouvier’s Law Dictionary; but we have examined them in application to the present case, and now feeling that we can more forcibly present our, own opinion and reasoning by adopting the language and opinions of the learned Chief Justice, and the authorities referred to by him, than we otherwise might be able to do, we shall make no apology for introducing here lengthy extracts from the opinion of Chief Justice Hemphill, delivered.in the case already cited from 4 Texas Reports.

A distinction has' always been taken between the obligation of a contract and the remedy for its enforcement; and it has never been doubted but that-the Legislature may vary “ the nature and extent of the remedy, so that some substantial remedy be in fact left.” A State may at pleasure regulate the modes of proceedings 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 statutes of limitations; ór exempt the necessary implements of agriculture, or the tools of mechanics, or articles of necessity in household furniture, from executions. Regulations of this description have always been considered, in eyery 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, and as not impairing the obligation of the contract.. (Bronson v. Kinzie et al., 1 How. U. S.

R., 315.) In this case the learned judge, adopting a most logical parity of reasoning, fortifying his argument by the highest authorities, decided that the term “ retrospective ” in the bill of rights was designed to embrace laws which are not included in the description of ex post facto laws, or laws impairing the obligation of contracts, but which destroy or impair vested rights or rights to do certain actions or possess certain things, according to the laws of the land.

Laws which affect the remedy merely are not within the scope of the inhibition against retrospective laws, unless the remedy be entirely taken away, or be encumbered with conditions that would render it useless or impracticable. There cannot be a vested right to any particular remedy, until suit be commenced at least. Whether statutes of limitation affect the remedy merely, or pertain to the contract, is not now an open question.

In Gautier against Franklin, decided by the same learned court in 1 Texas Reports, page 732, the Chief Justice, in discussing the nature and object of statutes of limitation, uses the following language: li If statutes of limitation can in any just sense be regarded as forming any part of the contract, their operation should be admitted wherever the contract is litigated. But they are not so considered.

In making contracts the future time (if any) which is in contemplation of the parties, is the day of the maturity of the contract, and not that on which, by lapse of time, exemption may be claimed from its performance.

A contrary doctrine would impute to the obligee a contemplated evasion of his obligation from the inception of his agreement, and would, in the language of Lord Brougham, turn a protection against laches into a premium for evasiveness.” (Story’s Conflict of Laws, p. 482.) The limitation of the time within which the right of action upon any contract may be barred forms no part of the obligation of the contract, nor does a right to resist the due execution of the contract exist at the time it is made; this is simply a right which grows out of the negligence or laches of the party having the beneficial interest in the contract, and that the time within which such laches shall become a bar may be curtailed or extended at any time by the Legislature before the bar has actually taken place, has not been doubted; and why the power to extend the time within which suits may be brought should be denied, even to the Legislature, when there is no constitutional inhibition, is to us a matter of some astonishment. ' But that a people framing and adopting their fundamental law should be denied this power is still more remarkable.

We have ’already stated in this opinion that the only perimeter or boundary line which circumscribes the power of the people of Texas was the Constitution, laws and treaties of the United States, unless, indeed, they had incorporated in their Constitution some principle in derogation of the law of nature or the law of nations; and with a Constitution so tainted with barbarism we never should have found bur way a second time into the great American Union.

And it must not be forgotten that while our Constitution was framed by a convention of men, among whom were some of the best and most accurate legal scholars in the State, it has since passed the ordeal of the ballot box triumphantly.' It has passed the scrutiny of a House of Representatives, in w'hich are such legal minds as those of Bingham, Orth, Lawrence, Schenck, Butler and Garfield; it has received the sanction of a Senate where are Trumbull and Sumner, Sherman, Carpenter and Thurman, some of the brightest ornaments of the profession on either continent, who gave it the approbation of their wisdem and learning.

These men were not forgetful of the obligations imposed upon them by the fourth

section of the fourth

article of the Constitution of the United States: “The United States shall guarantee to every State in the Union a Republican form of government.” And this, we think, ought to be a sufficient answer to the obiter remark of the learned judge in Story’s Administrator against Runlde, quoted in appellant’s brief thus: “ Like the legislatures created by them, they (conventions) must act in subordination to the great republican conception of our institutions, as well as to the National Constitution, which interdicts all power to the State, whether in its conventional or legislative action, to impair contracts.” To apply the doctrine thus laid down in this case is to assume that the forty-third

section of the twelfth

article of our Conctisution does impair the obligation of contracts, which we have already shown by abundant authorities is not the case. It is hardly fair to apply the obiter dictum of the learned judge in the case of Story’s Administrator against Rankle, to this case. The only question involved in that case was as to the time within which a writ of error could be sued out. And the court afterwards, (of which the learned judge was a member,) in the case of Maloney against Roberts, decided at the Tyler term, 18Ó9, overruled the ease of Story's Administrator against Runkle.

The case referred to by appellant in 3 Peters R., Jackson against Lampshire, is perfectly reconcilable with the authorities herein referred to, and found in 1, 2 and 5 Texas. The Secession Convention of January 23, 1861, was a body of revolutionists, in rebellion to the government of the United States.

Among the members of that Convention were able lawyers; it may be that they were acting in disregard of the law3 of the country, but they assumed to suspend the limitation law; and the Convention of 1866 declared that the time intervening between the second of March, 1861, and the second of September, 1866, should not be computed in the application of the statutes of .limitations. Now, if there be a lawyer in the State of Texas who, regarding these ordinances as valid and binding, will nevertheless give it as his opinion that the forty-third

section of the twelfth

article of our Constitution must be held invalid for want of power m the people, acting in harmony with the laws of the country and with the approbation of the Congress of the United States, that opinion can be held of little worth in this court. We should not do justice to the- very learned and able brief of counsel for appellee, were we to stop here in the decision of this, case. In the case already cited from 1 Texas, the court reasons thus: If statutes of limitation could in any just sense be regarded as forming a part of the contract, their operation should be admitted wherever the contract is litigated.

But they are not so considered. If, then, the bar of limitation does not enter into the consideration of the parties, it is no right contracted for, but is solely dependent upon such laws as the Legislature or the people in their sovereign capacity may enact. In the case of McMullen v.

Hodge, reported in 5 Texas Reports, on page 73, the court hold this strong language : “ It would be in the power of such convention to take away or destroy individual rights, but such an intention would never be presumed; and to give effect to a design so unjust and unreasonable would require the support of the most direct, explicit, affirmative declaration of such it tent.” This was a case which arose under the Constitution of the Republic, and this language was applied to the power of the convention which framed it.

But, to return to the question of retroactive laws, we refer to the case of Oliyer Lee & Co.’s Bank, decided in the New York Court of Appeals, reported in 21 New York Reports; the opinion was delivered by Justice Denio. On page 12 we find the learned judge using the following language: “ The defendant’s counsel insists that we should not construe the clause so as to disturb vested interests, unless compelled by language which would not admit of any other meaning. But we ai\e not to interpret the Constitution precisely as we would

an act of the Legislature. The Convention was not obliged, like the legislative bodies, to look carefully to the preservation of vested rights. It was competent to deal, subject to ratification by the people, and to the Constitution of the Federal Government, with all private and social rights, and with all the existing laws and institutions of the State. If the Convention had so willed, and the people had concurred, all former charters and grants might have been annihilated.

When, therefore, we are seeking for the true construction of a constitutional provision, we are constantly ■ to bear in mind that its authors were not executing a delegated authority, limited by other constitutional restraints, but are to look upon them as founders of a State, intent only on establishing such principles as seemed calculated to produce good government and promote the public happiness, at the expense of any and all existing institutions which might stand in their way. The rule laid down in Dash v.

Van Bleck, 7 John., 477, and other cases of that class, by which the courts are admonished to avoid, if possible, such an

interpretation as would give a statute a retrospective operation, have but a limited application, if any, to the construction of a constitution.” Perhaps it is useless for us to attempt to fortify the learned authorities already cited by additional references, but we will nevertheless call attention to such as are cited in the brief of appellee’s counsel: Sections 166,167,168, Smith’s Com. on Statutes and Constitutional Law; Story on Conflict of Laws, $ 582, and notes; Sedgwick on Constitutional Law, par. 411, 412, 682, 683, 692 and 693; Angel on Limitations, §§ 66, 67 and notes, 4 Connecticut Reports, Goshen against Stonington.

The opinion in this case was pronounced by Chief Justice Hosmer and is lengthy, but very able and well worthy of consideration. The chief point decided with which we have here to do, is this : f‘ That a law is explicitly retrospective and may affect the rights of individuals does -not authorize the judiciary to declare it void, if it be just and reasonable and conducive to the general good.” This was a question arising under a statute, passed by a Legislature of a State whose Constitution did not expressly inhibit retroactive laws.

How much greater force is the constitution of a State enacted by the people, and is the utterance of their will and their power, entitled to, than the act of a Legislature which is subordinate to the Constitution. In 22 New York Reports, on page 12, in the matter of the Reciprocity Bank, Chief Justice Com-"stock refers to the case of Oliver Lee & Cq.’s Bank with approbation, and affirms the same doctrine. Reference is made in the brief of appellee to .the learned work of Judge Cooley, of the Supreme Court of the State of Michigan.

This author says the Legislature may suspend the operation of the general laws of the State, but when it does so the suspension must be genera], and cannot be made in individual cases or for particular localities.

The note on this passage reads thus: “ That the statute of limitations cannot be suspended in particular cases while allowed to remain in force generally, (see Holden against James, 11 Mass., p. 396; Davison against Johonnot, 7 Met., 393,) and that the general exemption laws of the State cannot be varied for particular cases or localities.” (See Bull against Conroe, 13 Wis.,p. 238-244.) This authority certainly strongly fortifies our view of this case; and what is said by the same author on pages 362 and 369, in no way weakens the conclusion to which we have arrived.

The argument as maintained by Judge Cooley, as to vested rights being taken away by a statute of limitation, is fully met and answered by the able authorities wé have already cited. We cannot see what application can be made to this case of the opinion recently delivered in the Circuit Court of the United States, in the case of Grey against Davis and Kuechler.

There the court held that the charter granted by the State to the Memphis and El Paso Railroad Company was a contract which, upon the organization of the company and compliance with the terms of its charter, would be protected by that clause of the Federal Constitution which inhibits the States from passing any law impairing the obligation of contracts. It might be foreign to the object and duty of the court to enter into any detailed history of the times within which the statute of limitations has been suspended by the forty-third

section of the twelfth

article of the Constitution. But they who talk about vested rights in the bar of limitations should at least remember the times in which we have been living; and those who think our Constitution is not republican, nor in accordance with the great republican conception of our institutions, should remember that from the second of March, 1861, to the twenty-ninth of March, 1870, we had no republican government in Texas. Four years of that period were one of bloody and unrelenting war.

From 1865 to 1870 we were a military government; he who gained a vested right in' the statute of limitations during at least a portion of that period, gained it only because inter arma leges silent. Yultures and wolves gain vested rights when armies are slaughtered, if these be vested rights. We are therefore led to declare that the forty-third

section of the twelfth

article of the Constitution of 1869 is not to be regarded as an ex post facto law, nor is it a law impairing the obligation of contracts. That the people of Texas, through their Constitutional Convention, and at the ballot box in voting upon the adoption of the Constitution, had both the right and the power to disregard even vested rights, if they deemed it advisable; and if they have clearly expressed.their intention so to do, the courts of the State are bound so to regard it.

That the limitation laws of the State of Texas affect only the remedy, in which a right cannot vest, and therefore the declaration in the Constitution last referred to is not objectionable on the score of vested rights. The judgment of the district court is therefore affirmed. Affirmed.