Bender v. Crawford

• Decision Date: 01 January 1870
• Parties: CHARLES BENDER v. T. H. CRAWFORD.
• Court: Texas Supreme Court

33 Tex. 745

CHARLES BENDER

v.T. H. CRAWFORD.

Supreme Court of Texas.

1870.

1. The constitution of this state, of 1869, declares, in the forty-third section of its twelfth article, that “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.” Held, that this constitutional provision is neither an ex post facto law nor a law impairing the obligation of contracts; nor does it conflict in any other respect with the constitution, laws or treaties of the United States.

2. 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, provided that in so doing they do not infringe the constitution, laws or treaties of the United States; and if they have clearly expressed in their constitution their intention so to do, the courts of the state are bound to respect and enforce their will.

3. The limitation laws of the state of Texas affect the remedy only, in which a right cannot vest; and, therefore, no objection founded on vested rights can be maintained against the forty-third section, twelfth article, of the state constitution of 1869, declaring the limitation laws to be suspended until the acceptance of that constitution by the congress of the United States.

4. On promissory notes due in 1859, suit was brought in July, 1869, and the limitation of four years was set up as a defense to the action. Held, conformably to the foregoing rulings, that the limitation laws being suspended from January 28, 1861, until after the commencement of this suit, they could constitute no bar to the recovery of the plaintiff.

5. In this case the court reviews the leading authorities on the important questions involved, and quotes with marked approval the opinion of this court in De Cordova v. The City of Galveston, 4 Tex. 470, delivered by Chief Justice Hemphill. The contrary views expressed in Story's Administrator v. Runkle, 32 Texas, were obiter dicta.

APPEAL from Comal. Tried below before the Hon. G. H. Noonan.

Crawford brought this suit on the twenty-sixth of July, 1869, on two promissory notes of the defendant, Bender, one for $209, made September 22, 1858, and due four months after date, and the other for $612, made September 7, 1859, due at ninety days.

The statute of limitations of four years was set up by exceptions to the petition. The plaintiff treated the exceptions as an answer, and filed a replication alleging that the defendant was absent from this state until the fall of 1866, and on sundry subsequent occasions, and that in May, 1865, and in August, 1866, he had in writing promised and obligated himself to pay the notes sued on. These allegations, however, do not seem to have been sustained by the proof. The case was submitted to the court without a jury, and the defendant, Bender, being called to the witness stand by the plaintiff, testified that he came to Texas in the spring of 1865 and had been out of the state but three times since, covering in all but forty days. Though the judgment of the court below, in favor of the plaintiff, does not recite the ground upon which it was based, it would appear from the state of the proof that it was rendered on the constitutional provision alone.

Wælder & Upson and John P. White, for the appellants. Assuming that the ordinance of 1866 suspended the operation of the statute from March 2, 1861, until September 2, 1866, one of the notes sued upon in this case was barred on or about the fifteenth of July, 1868, and the other was barred on or about the seventh of June, 1869; both being clearly barred under the laws then in force prior to the institution of this suit.

Such being the case, could any power of the state, whether it be exercised by a convention or by the legislature, revive these claims which, by the operation of the statute, had lost their vitality, without infringing that provision of the constitution of the United States which prohibits the state from passing laws impairing the obligation of contracts?

That contracts are governed by the laws in existence at the time they are entered into, and that parties contract with reference to those laws, is a doctrine which has been often and authoritatively announced. And while it is well settled, as stated in the original brief, that laws affecting the remedy are not generally within the scope of laws impairing the obligations of contracts, yet it is as well settled that a law affecting the remedy may so interfere with the right as to destroy the right itself--and this, we submit, would be the effect of the provision under consideration, if sustained by the court so as to apply to claims already barred at the date of its passage and before suit brought.

Justice Cooley, of the supreme court of Michigan, and lay professor of law in the university of that state, in his well conceived work on Constitutional Limitations, uses this language: “As to the circumstances under which a man may be said to have a vested right to a defense, it is somewhat difficult to lay down a comprehensive rule. He who has satisfied a demand, cannot have it revived against him, and he who has become released from a demand by the operation of the statutes of limitations, is equally protected. In both cases the right is gone and to restore it would be to create a new contract for the parties--a thing quite beyond the power of legislation.” Cooley, Const. Lim. 369.

On page 362 the same author says: “A vested right of action is property in the same sense in which tangible things are property, and is equally protected against arbitrary interference.” Is not a bar acquired by the statute of limitations as much a vested right, and as well protected from like interference?

Again: “When the period prescribed by statute has already run, so as to extinguish a claim, which one might have made to property in the possession of another, the title to the property, irrespective of the original right, will be regarded as vested in the possessor, so as to entitle him to the same protection that the owner is entitled to in other cases. A subsequent repeal of the limitation law could not be given a retroactive effect, so as to disturb this title. The right being gone, of course the remedy fell with it, and as there could be no remedy without a corresponding right, it was useless for the legislature to restore the former, so long as it was prohibited by the constitution from interfering or meddling with the latter.” Cooley, Const. Lim. 365.

The author here refers to a number of authorities to sustain the doctrines laid down in his text.

“A statute which, without some controlling public necessity and for public objects, seeks to affect or interfere with vested rights of private property, is equally beyond the true limits of the legislative power.” Sedg. Stat. and Const. Law, 177.

We think, then, that upon the authorities cited in this and original brief, we may safely submit that the ruling of the court below was erroneous, and that the judgment should be reversed.

We ask the court, nevertheless, to excuse us for making extensive quotations from the case of Story's Administrator v. Runkle, decided by this court at its Austin term, 1869, which, upon a somewhat similar issue, would seem to dispose of the question under discussion in the present case. We quote at length for the reason that the case referred to is not yet reported or published. In delivering the opinion of the court Justice Lindsay says:

“It is not questioned that the political power may alter, change, modify or abolish any civil remedy which may exist at the time of its action, provided it does not entrench upon rights inalienably vested. It may enlarge or contract the scope of any statute of limitations. It may abolish such statutes altogether, and allow parties to enforce their claims according to the principles of natural justice in the civil tribunals of the state. But after the time has already fully elapsed within which the absolute right to avail themselves of the bar of the statute, is not conceded, * * * after its lapse, even in the cases wherein the statute must be pleaded to be available, neither conventions nor legislatures can, without positive usurpation and tyranny, deny a citizen the exercise of such right. * * *

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.” Story's Adm'r v. Runkle, Austin term, 1869.

The court in referring to the case of Jackson v. Lampshire, 3 Pet. 280, say: “It is also distinctly affirmed in the same and other cases in that court, as well as in a number of the courts of our sister states, with which it is needless to incumber this opinion, that ‘if the legislature of a state should pass an act by which a past right of action should be barred, and without any allowance of time for the institution of a suit in future, it would be difficult to reconcile such an act with the express constitutional provisions in favor of the rights of private property.’ A fortiori, it would be difficult to reconcile the passage of such an act reviving rights already barred, with those constitutional provisions. We regard the exercise of such a power as utterly subversive of civil liberty, as guarantied under republican institutions, and therefore cannot recognize the soundness or the just policy of such a provision in a law of limitations.”

What is said above, is based upon the hypothesis, that the convention of 1869 intended to revive claims which were then fully barred. We submit, however, that...