Day v. Madden

• Decision Date: 10 May 1897
• Citation: 9 Colo.App. 464,48 P. 1053
• Court: Colorado Court of Appeals
• Parties: DAY v. MADDEN et al.

48 P. 1053

9 Colo.App. 464

DAY v. MADDEN et al.

Court of Appeals of Colorado

May 10, 1897

Error to district court, Arapahoe county.

Attachment by William E. Day, administrator of the estate of David Henry, deceased, against Thomas Madden and another. From an order dissolving the attachment, plaintiff brings error. Reversed.

H.N Haynes, for plaintiff in error.

Cranston Pitkin & Moore, amici curiae. John H. Reddin, for defendants in error.

BISSELL J.

No case has been presented to this court since its organization beset with more difficulties, surrounded with greater perplexities and about which I have had graver doubts respecting its proper solution. Aside from the infinite trouble to extract from the various adjudications on this and similar questions the rule which is recognized by the weight of authority, and to discover the right principle which ought to control the courts in such cases, we are further embarrassed by the consideration that in the end our decision can only be taken as expressive of our conclusions, because the final power to adjudicate all constitutional questions rests with the supreme court, to which this case will probably ultimately go.

The error alleged to inhere in the record was committed by the entry of judgment of the lower court quashing a writ of attachment theretofore issued and levied. The writ was rightfully sued out on a sufficient ground as the statute then existed, was untraversed, and should have been supported by the judgment, if the court erred in its conclusions respecting the effect of the repeal of the statute under which it was issued. Prior to 1895 whoever commenced a suit had the right to file an affidavit alleging any one of 13 several causes of attachment. If a statutory ground was stated, and the proceedings were otherwise regular, this entitled him to a writ under which the defendant's property might be impounded to await the recovery of a judgment. If the affidavit was not traversed, or, if traversed, successfully maintained, the judgment must sustain the attachment, and the property could be sold to satisfy the plaintiff's claim. Among these various grounds was one which provided that the writ might issue if the suit was begun on an overdue promissory note or on a book account. In the present case the suit was brought on a promissory note past due. The affidavit was not traversed, because the execution and delivery of the note was conceded, and it is admitted not to have been paid when it fell due; and, there being no controversy over the plaintiff's cause of action, he was entitled to a judgment sustaining his writ unless he was deprived of the right by the act of the legislature which is under consideration. In 1895 the act governing attachments which was contained in the Code of Procedure was amended, and amended in only one particular. That was the striking out or omission of the thirteenth ground. Under the provisions of our constitution, acts which are amended, are amended by a reenactment of the original act in the form into which it falls by the amendment. The act, therefore, took the form of a re-enactment of the original statute with the omission of that clause. This repeal or amendatory act became operative subsequent to the commencement of the suit and the issue and levy of the writ, and before the entry of judgment. Thereupon the defendant moved to quash the writ, because, as the statute stood at the time the motion was made and judgment entered, the plaintiff was without the statutory right to procure a writ on the ground stated, have it levied, and impound the defendant's property. Prior to this time an act had been passed by the legislature of 1891 (Sess.Laws 1891, p. 366) which substantially provided that "the repeal, revision, amendment, or consolidation of any statute or section of a statute shall not have the effect to release, extinguish, alter, modify, or change in whole or in part any penalty, forfeiture, or liability, either civil or criminal, which shall have been incurred under such statute," unless the repealing act should so expressly provide. The act likewise provided that "the statute or the part of it which might be repealed or amended should be treated and held as still remaining in force for the purposes of sustaining any and all actions, suits, proceedings, or prosecutions, as well as to sustain any judgment or order which could or might be entered in the suits or proceedings." The court regarded the amended act of 1895 as operative to defeat the plaintiff's right to the writ, held that the writ fell with the repeal of the statute, that the plaintiff was no longer entitled to a judgment sustaining his attachment, dissolved it, and entered judgment accordingly. After final judgment, the plaintiff prosecuted error, assigning the dissolution of the attachment as the matter by which he was prejudiced.

In limited governments, like those of our several states, the power of the legislature is controlled by written constitutions, and all laws which they attempt to enact must be subservient to the limitations imposed on their authority, and all laws are subject to whatever restrictions are placed on this power by the conditions which the people themselves have imposed by their organic law. While the courts have always recognized their power and authority to examine legislative acts, and determine the force and effect of particular constitutional provisions, as applied either to their interpretation or to the power of the legislature to pass them, and have never hesitated to declare them void when in conflict with the constitution which the people have adopted, yet they have always hesitated to declare acts invalid and unconstitutional, except in plain cases, about which, in the end, they are free from doubt. The discussion is approached with caution, after great deliberation and much study. We recognize the force of this general rule, and after unusual consideration we have reached the result with a great deal of reluctance.

The plaintiff in error invokes two familiar constitutional principles in support of his position. The first has been before the courts of most states, and often before the supreme court of the United States, has been repeatedly construed, and its general scope and effect has been largely considered, and may be deemed tolerably well settled. This provision is the one common to the constitution of all states, as well as the constitution of our common country,--that states may pass no laws which impair the obligations of contracts. While the limitation is well settled, and the question has been considered in many cases no line has yet been drawn, no definition laid down, no exact and formal statement incorporated into any decision by which the matter may be settled. Each case seems to be only determinable, and only to have been determined, on its special circumstances, and only a few general principles have been laid down by which courts can be guided in the decision of the special case submitted. We are quite unable to discover that either the enactment or repeal of a statute giving the plaintiff a right to sue out a writ of attachment in aid of his suit is in any manner obnoxious to the constitutional provision which forbids the legislature to pass a law impairing the obligations of contracts. The attachment law can in no sense be said to be a part of the contract. The subject-matter of the action is a promissory note. This is simply a promise on the part of the debtor to pay a specific sum of money at a place named, at a certain time, and with certain interest. The suit is begun to enforce that contract and that promise. The right to sue out a writ and levy on the debtor's property is neither part nor parcel of the contract, nor does it form any part of the engagement into which the parties entered, nor does the repeal of the act permitting it affect any substantial and actual remedy which the payee has to enforce his right of action, which is the right to sue, put the demand in judgment, and collect it by execution. The principal consideration which seems to control the courts in their inquiry whether a particular act is obnoxious to this constitutional provision is whether the principal promise made by the debtor has been impaired, and whether the act which has been repealed can legitimately be taken to enter into or to form a part of the agreement. If it does not so enter into the agreement, the courts inquire whether it is so inseparably connected with it that it must be adjudged the destruction of the one will amount to an impairment of the other. It may be unanswerably stated that the right to the writ neither entered into nor formed a part of the original promise to pay. It was not a constituent of the consideration. There was no "aggregatio mentium." The parties did not contract with reference to it, nor can it in any way be said that they agreed on the faith and strength of it. It was not recited in the note. When it can be seen that the matter was not within the minds of the parties at the time they contracted, and that their assent cannot be presumed, it can on no legal principle of which we are advised be adjudged to enter into and form a part of the contract itself. There are many cases adjudging it not within the power of the legislature to give to the mortgagor, the grantee in a trust deed, and possibly the lienee under a lien statute, a right of redemption beyond the time fixed by law when the mortgage was executed, the deed made, or the lien filed. These cases all proceed on the theory that such acts take from the mortgagor, or the grantee, or the lienee, some part or portion of an estate which he held by virtue of the contract, and give to the debtor part of that which belonged to the other p...