Bruns v. Crawford

• Decision Date: 31 January 1864
• Parties: BERNARD BRUNS et al., Defendants in Error, v. THOMAS L. CRAWFORD et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

34 Mo. 330

BERNARD BRUNS et al., Defendants in Error,

v.THOMAS L. CRAWFORD et al., Plaintiffs in Error.

Supreme Court of Missouri.

January Term, 1864.

Error to Cole Circuit Court.

J. S. Smith, for plaintiffs in error, insists,

I. That the two several acts of the State Legislature, entitled “An act for the relief of persons while doing actual military service for the State,” approved May 15, 1861, and “An act to amend an act for the relief of persons while doing actual military service for the State,” approved March 17, 1863 (see Sess. Acts 1861, p. 46; also Sess. Acts 1863, p. 30), “are not only constitutional but properly pleaded as a bar to the suit. This identical question has heretofore been reviewed and decided in this court. The “Act to suspend all legal process against persons and property of volunteers,” approved February 13, 1847, (see Sess. Acts 1847, p. 109,) is not unlike the two acts above cited. This last named act was decided constitutional by this court in Edmundson v. Ferguson, 11 Mo. 344; and in Lindsey, adm'r of Barbridge, v. Early, 11 Mo. 545.

But it is insisted that the two legislative acts first above cited are in conflict with sec. 7 & 17, art. 13, of the State Constitution, and sec. 10, art. 1, of United States Constitution, notwithstanding the foregoing decisions affirming the constitutionality of the act of 1847. If the act of 1847 is constitutional, why are not the acts of 1861 and 1863, above cited, constitutional? The provisions of these acts are substantially the same. But the main reason urged why these acts are unconstitutional, is that the same are in conflict with sec. 10, art. 1, of Constitution of the United States, which provides that no State shall pass any “ ex post facto law, or law impairing the obligation of contracts.” The question here submitted is, do the acts here sought to be tested impair the obligation of contracts entered into subsequent to the enactment of these laws, or either of them? What is the obligation of a contract, and what is the remedy on a contract? are they identical? A contract may be defined to be an agreement or obligation between two or more parties, for the doing or not doing of some specified thing. (1 Par. on Cont. § 11, p. 5; Sto. on Cont. § 1, p. 1.) Remedy is defined to be the method whereby a man may recover his rights or redress his wrongs, or of enforcing the obligation of the contract (Mansf. Polit. Gram. § 261-2, p. 102-3); and remedy originally comes from the Legislature, and has a different source and cause, at a different time, from a contract itself. Then it may be seen that the obligation of a contract is one thing, and the remedy or means of enforcing it is another thing. It is not insisted, of course, that the State Legislature has any power to impair the obligation of a contract, but it is insisted that the Legislature can change the remedy of a contract without impairing its obligation. The obligation of the contract originates and is coeval with the contract itself, while the remedy arises on a broken or violated contract, and subsequent to the objection. (Sto. Const. § 1385, p. 236; Ogden v. Saunders, 12 Wheat. 349.)

There are two class of cases, one tending to show that the remedy for a party may be changed or wholly taken away by the Legislature, without contravening the Constitution of the United States. (Read v. Frankford Bank, 10 Shepl. 318; Woods v. Buis, 5 Howard, Miss. 285; Wason v. Shenter, 9 Ala. 713; Catlin v. Munger, 1 Texas, 598.)

Another class of cases assert the doctrine that the obligation of a contract consists in the remedy which the law gives to enforce it; and a change of remedy involves a change of contract. (Blair v. Williams, 4 Litt. Ky. 34.)

But there is another class of cases tending to establish the doctrine (and in fact the weight of authority is that way) that the Legislature has the power to modify remedies, but not destroy them; to change the remedy so as not to impair or defeat contracts. (Sturges v. Crowninshield, 4 Wheat, 200; Chadwick v. Moon, 8 Watts & Serg. 49; Stephens v. Andrews, 31 Mo. 210; McCormick v. Rusch, Dec. No. Amer. Law Reg. 93.)

In case of McCormick v. Saunders, the decision was upon a statute in terms substantially like the acts 1861-63, of this State already cited. In the Supreme Court of Pennsylvania, in Brietenbach v. Bush (8 Wright, not yet published), the act of the General Assembly of 1861, which provides that “no civil process shall issue or be in force against any person mustered into the service of this State or of the United States during the time he shall be engaged in such service,” &c., was reviewed by that court, and Justice Woodward. who, in delivering the opinion of the court, said “that the exemption was an interference with the remedy only, and could not extend beyond three years, being the term of enlistment,” cannot be declared an unreasonable act.

H. C. Ewing, for defendants in error.

The court below did right in sustaining the motion made by defendants in error to strike out the answer of defendant (plaintiff in error here) Crawford; and also did right in overruling the motion for a new trial. These acts of the Legislature, it is submitted, are unconstitutional and void.

XIII. article, 7th section, of the Constitution of this State says, that “courts of justice ought to be open to every person, * * * and that right and justice ought to be administered without sale, denial or delay,” &c. and the 17th section reads as follows: “That ex post facto laws, nor law impairing the obligation of contracts, or retrospective in its operation, can be passed;” and the 10th section of article I. of the Federal Constitution forbids the passage by a State Legislature of “any ex post facto law, or law impairing the obligation of contracts.”

The act of the Legislature complained of prohibits a suit being commenced against any one in the military service, while he is in such service,...