Gunn v. Barry

• Decision Date: 01 December 1872
• Citation: 82 U.S. 610,15 Wall. 610,21 L.Ed. 212
• Parties: GUNN v. BARRY
• Court: U.S. Supreme Court

82 U.S. 610

21 L.Ed. 212

15 Wall. 610

GUNN v. BARRY.

December Term, 1872

ERROR to the Supreme Court of Georgia; the case being thus:

By a statute of Georgia, passed many years ago, it was enacted that the following property, belonging to a debtor who was the head of a family, should be exempt from levy and sale.

'Fifty acres of land, and five additional ones for each of his children under the age of 16 years, the land to include the dwelling-house, if the same and improvements do not exceed $200.

'One farm horse or mule.

'One cow and calf.

'Ten head of hogs.

'Fifty dollars' worth of provision, and five dollars' worth for each additional child.

'Beds, bedding, and common bedsteads sufficient for the family.

'One loom, one spinning-wheel, two pair of cards, and one bundred pounds of lint cotton.

'Common tools of trade for himself and his wife.

'Equipment and arms of a militia soldier and trooper's horse.

'Ordinary cooking utensils and table crockery.

'Wearing apparel of himself and family.

'Family Bible.

'Religious works and school books.

'Family portraits.

'The library of a professional man not exceeding $300 in value, to be selected by himself.'

In 1861, with this statute in existence, the State of Georgia passed what was called 'an ordinance of secession' from the United States; and joined in the treason and rebellion against the Federal government into which the slaveholding States, for the most part, entered. Her senators and representatives withdrew from Congress; her State government passed into the hands of persons at war with the United States; and she became one of the States styled 'The Confederate States of America;' a confederacy which waged war for several years on the government, and whose insurrection and rebellion the government, on the other hand, sought by force of arms to suppress. The arms of the United States having proved triumphant, the so-called government of the Confederate States fell to pieces, and the State of Georgia was left where she had put herself, that is to say, in the hands of traitors and rebels. No senators or representatives were allowed by the Congress of the United States to come back to its chambers as of old.

In this state of things, in May, 1866, Gunn obtained judgment in one of the courts of the State for $402.30 principal, and $129.60 interest (in all $531.90), against a certain Hart. For what the judgment had been obtained did not appear. Hart had at this time 272 1/2 acres of land, worth $1300, and the judgment bound it as a lien. He had no other land but one piece worth about $100.

On the 2d of March, 1867, the rebellion being suppressed, but the ancient relation of Georgia to the General Government, being still, in point of fact, not restored by representation, the Congress of the United States passed 'an act to provide for the more efficient government of the rebel States;' the act commonly called the Reconstruction Act.¹ This act—reciting that 'no legal State governments or adequate protection for life or property now existed in the rebel States of Virginia, Georgia, North Carolina,' &c., and that it was 'necessary that peace and good order should be enforced in the said State till loyal republican State governments could be legally established,' and putting these said States under military rule—enacted that when the people of any one of the said rebel States should have formed a constitution of government in conformity with the Constitution of the United States in all respects . . . and 'when such constitution shall have been submitted to Congress for examination and approval, and Congress shall have approved the same . . . &c., said State shall be declared entitled to representation in Congress, and senators and representatives shall be admitted therefrom.'

In pursuance of what was contemplated by this act, and of certain amendments to it, the people of Georgia did make a constitution. This constitution by the first section of its seventh article ordained that——

'Each head of a family, or guardian, or trustee of a family, of minor children shall be entitled to a homestead of realty to the value of $2000 in specie, and personal property to the value of $1000 in specie, to be valued at the time they are set apart.'

It went on further to declare:

'And no court or ministerial officer in this State shall ever have jurisdiction or authority to enforce any judgment, decree, or execution against said property so set apart, including such improvement as may be made thereon from time to time, except for taxes, money borrowed or expended in the improvement of the homestead, or for the purchase-money of the same, and for labor done thereon, or material furnished therefor, or removal of incumbrances thereon.'

The constitution having been thus adopted in form by the people of Georgia, was sent with this article included to the Congress of the United States, which by an act of June 25th, 1868,² 'to admit the States of Georgia, &c., to representation in Congress,' reciting that whereas the people of Georgia, North Carolina, &c., had in pursuance of the already quoted act of March 2d, 1867, 'framed constitutions of State government which are republican, and have adopted said constitutions,' enacted that each of the States of North Carolina, Georgia, &c., shall be entitled and admitted to representation in Congress as a State of the Union when the legislature of such State shall have duly ratified the amendment to the Constitution of the United States . . . known as 'Article Fourteen:' Provided, That the State of Georgia shall only be entitled and admitted to representation upon this further fundamental condition, that the first and third subdivisions of section seventeen of the fifth article of the constitution of said State except, &c., shall be null and void, and that the General Assembly of said State by solemn public act shall declare the assent of the State to the foregoing provision.

The State having afterwards ratified the fourteenth amendment, and complied with other requirements, was by an act of Congress, passed July 15th, 1870,³ declared entitled to representation in Congress.

The constitution of Georgia being thus approved by Congress, and operative, the legislature of Georgia, on the 3d of October, 1868, passed.

'An act to provide for setting apart a homestead of realty and personalty and for the valuation of said property, and for the full and complete protection and security of the same to the sole use and benefit of families, as required by section first of article seventh of the constitution and for other purposes.'

The language of this act was the same as the provision of the constitution. Under the act all the land of Hart, which altogether, it will have been observed, was worth about $1400, was set apart to him and his family as a homestead.

On a requirement by Gunn, to the sheriff of the county, one Barry, that he should levy on the 277 1/2 acres, Barry refused to do so, upon the ground that they had been set off to Hart and his family under the act of 1868, and on a petition for mandamus against Barry to compel him to make the levy, the courts of Georgia, including the Supreme Court, having decided that the refusal of the sheriff was right, the case was brought here.

The question involved was of course the constitutionality as against Gunn, who had got his judgment before its passage, of the new exemption.

Mr. P. Phillips, for the plaintiff in error:

Hart having had 272 1/2 acres of land, worth $1300, of which land 50 acres, or at very most, say a half, was exempt under the old law, obtained a judgment for $531.90. His debt is thus perfectly secure. He has an interest in the land to the extent of the judgment; an interest which binds it in the hands of the debtor and to whomsoever the debtor may transfer it. Then comes the new constitution and law, which withdraws the whole of the land from the lien, and for all practical purposes dissolves or destroys the lien. The remedy, which was before complete, is now annihilated. And the creditor who, before, would have been paid in full, is deprived of getting anything. If this is not impairing the obligation of a contract—if it is not destroying vested rights what is?

There was, no doubt, great inducement in the Southern States, arising out of the disasters of the war, to legislation in favor of debtors. But while much may be said in extenuation of such legislation, nothing, when it is like that here, can be judicially said in justification of it. In Arkansas an exemption of $7000 has been made. In Mississippi of $4000. In other Southern States exemptions more or less large. With the operation of these exemptions on contracts made subsequently to them, we do not deal. But when applied to contracts made when no such exemptions were allowed or thought of, the illegality is obvious.

Some singular results follow as respects the State of Georgia. The population of the State is estimated at 1,500,000. Under the new exemption every head of a family is entitled to $2000 in land. Assuming that five persons constitute a family, we have 300,000 heads of families; and if each 'head' obtained the $2000 in land, the law appropriates land to the amount of $600,000,000. This is three times more than all the land in the State is estimated at.

No counsel appeared on the other side; but the court was referred to arguments made in Georgia, where the validity of the laws making the new exemption had been sought to be maintained. So far as the reporter understood them, the grounds were somewhat thus:

The old law, so far as it operated on contracts made after its date, was confessedly valid. Practically from the time of its passage no court or ministerial officer of the State had jurisdiction or authority to enforce any judgment, decree, or execution against property set aside under it.

The old law being valid, what made the exemption of 1868 invalid? It was not invalid.

I. In Von...