Johnson v. Hardee

• Decision Date: 31 December 1868
• Citation: 38 Ga. 350
• Court: Georgia Supreme Court
• Parties: CUTTS & JOHNSON et al., plaintiffs in error. v. N. A. HARDEE,survivor, defendant in error.

38 Ga. 350

CUTTS & JOHNSON et al., plaintiffs in error. v. N. A. HARDEE, survivor, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, December Term, 1868.)

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Relief-law. Demurrer. Decided by Judge J. M. Clark. Sumter Superior Court. October Term, 1868.

Cutts & Johnson and James Stewart, on the 22d of January, 1861, gave their single bill or bond for $5,229 01, payable to the order of N. A. Hardee & Co., forty-five days after date, and also an agreement to pay expenses if suit had to be brought on it. Suit was brought thereon, in March, 1861. One of the plaintiffs died, and the case proceeded in the name of the survivor. The cause was pending in October, 1868, and then Stewart plead that "said note was made prior to the 1st day of June, 1865; that the consideration for the same, was a security of A. S. Cutts only; that, at the time said note was made, the amount and value of the property owned by the defendant, was about $200,000 00, and that on or about the — day of——, 18——, said defendant tendered, or offered to tender, payment of said draft in currency, then in circulation generally, and which said plaintiff refused to receive in payment thereof; said property was lost or destroyed in the following manner, to-wit: one hundred negroes, worth $100,000 00, were manumitted, and the property therein destroyed; he owned about five thousand acres of land in Sumter and Schley counties, then of the value of about $45,000 00, and not worth more now than $7,000 00 or $8,000 00; he sold the most valuable place; he sold it for $5,000 00, in Confederate money, most of which money is now on hand, and worthless; hehad no interest in the consideration of said note; said property was destroyed *by fire, etc.; and further, "that by the Constitution of the State of Georgia, this Court has no jurisdiction of this case."

The plea was demurred to, and the demurrer was sustained. This is assigned as error.

W. A. Hawkins, Lyon & DeGraffenried, Vason & Davis, for plaintiffs in error.

J. J. Scarborough, C. T. Goode, for defendant in error.

BROWN, C. J.

The first section of the Act of the Legislature, passed at the session of 1868, entitled, "An Act for the relief of debtors, and to authorize the adjustment of debts upon principles of equity, " is in these words:

"That in all suits which shall be brought for the recovery of debts, in any of the Courts of this State, or upon contracts for the payment of money, made prior to the first day of June, 1865, (except for the sale or hire of slaves,) it shall and may be lawful for the parties, in all such cases, to give in evidence before the jury impanneled to try the same, the consideration of the debt or contract which may be the subject of the suit, the amount and value of the property owned by the debtor at the time the debt was contracted, or the contract entered into, to show upon the faith of what property the credit was given to him, and what tender or tenders of payment he made to the creditor, at any time, and that the nonpayment of the debt or debts was owing to the refusal of the creditor to receive the money tendered, or offered to be tendered; the destruction or loss of the property upon the faith of which the credit was given; and how and in what manner the property was destroyed or lost, and by whose default; and in all such cases, the juries which try the same, shall have power to reduce the amount of the debt or debts sued for, according to the equities of each case, and render such verdicts as to them shall appear just and equitable."

The pleas filed in this case were such as were necessary to *let in the evidence on the trial, which is authorized by the above section of the Act. Counsel for plaintiff demurrer to the pleas, on the ground that the Act was unconstitutional and void. The Court sustained he demurrer, and ordered the pleas to be stricken from the record, and that decision is assigned as error.

1. It can not be questioned that the Courts have the power to declare Acts of the Legislature unconstitutional, null and void; and to refuse, on that ground, to enforce them. While this is a necessary power, it is one that should be exercised with great caution. Solemn Acts of the Legislature are always presumed to be constitutional and binding, and should never be set aside by the Courts, except in clear and urgent cases. If the Court entertains doubts, the decision should be in favor of the validity of the Act. 12 Wheat., 270. 16 Ga. R., 102.

2. It is contended that this section of this Act violates that provision of the Constitution of the United States which denies to any State the power to pass any law impairing the obligation of contracts. But that provision of the Constitution does not prohibit the passage of laws, by the States, acting upon the remedy.

3. The distinction between the obligation of a contract and the remedy for its enforcement, is well established by the authorities; and while the Legislature has no right to impair the obligation of the contract, it has the undoubted right to change, modify, or vary the nature and extent of the remedy, provided a substantive remedy is left to the creditor. 12 Wheat., 285, 349-50; 4 Wheat., 200, 201; 1 Howard's Reps., 315, 316; Story on the Const., sec. 1385; 3 Peters' Reps., 280; 5 Pet., 456; 13 Pet., 312; 23 Maine Reps., 318, 322; 18 Maine, 109; 2 Fairf., 284; 6 Pick., 501; 1 Cowen, 501; 2 Ala., Reps., 404; 9 Ala., 713; 1 Texas, 598, 600; 4 Watts & Serg., 220; 5 How. Miss Reports, 285; 1 Kernan's Reps., 286; 3 Denio, 274; 4 Gilmer, 221; 1 Morris, 70; 7 Geo. R., 163; 9 Geo. R., 258; 12 Geo. R., 437; 13 Geo. R., 306; 16 Geo. R., 151; 28 Geo. R., 345; 37 Geo. R., 440, and *numerous other authorities which might be cited sustaining the same doctrine.

So long as the State undertakes to furnish remedies, she may vary or modify them at pleasure, if she does not destroy their substantive character. But it does not necessarily follow that a State is bound to furnish any remedy at all, for the enforcement of contracts. If, in the organizations of her government, she should determine to establish the cash system in all trade and commerce, and should deny to her courts jurisdiction over any executory contract for the payment of money, I know of no coercive power under our system of government to compel her to change her system, and establish Courts with jurisdiction over such questions. Nor would the obligation of the contract be impaired by such a refusal on the part of a State to enforce the contract, as the injured party, in case the contract were not declared illegal by the laws of the State where made, would have his right of action wherever he might find the other party or his property, within the jurisdiction of a State whose laws afford remedies for the enforcement of such contracts.

The late Chief Justice Marshall, who was certainly one of the ablest jurists of any age, while he characterizes the conduct of a State, which would refuse to afford remedies to enforce contracts, in very strong terms of reproach, admits the power of the State to withhold all remedy, and denies that there is any coercive power over her, to compel her to enforce the performance of contracts. In Ogden v. Saunders, 12 Wheat., 350-1-2, he says: "Our country exhibits the extraordinary spectacle of distinct, and, in many respects, independent governments, over the same territory and the same people. The local governments are restrained from impairing the obligation of contracts, but they furnish the remedy to enforce them, and administer that remedy in tribunals constituted by themselves. It has been shown that the obligation is distinct from the remedy, and it would seem to follow, that the law might act on the remedy without acting on the obligation. To afford a remedy is certainly the high duty ofthose who govern to those who are governed.

*A failure in the performance of this duty, subjects the government to the just reproach of the world. But the Constitution has not undertaken to enforce its performance. That instrument treats the States with the respect which is due to intelligent beings, understanding their duties, and willing to perform them; not as insane beings, who must be compelled to act for self-preservation. Its language is the language of restraint, not coercion. It prohibits the States from passing any law impairing the obligation of contracts; it does not enjoin them to enforce contracts. Should a State be sufficiently insane to shut up or abolish its Courts, and thereby withhold all remedy, would this annihilation of remedy annihilate the obligation, also, of contracts? We know it would not. If the debtor should come within the jurisdiction of any Court of another State, the remedy would be immediately applied, and the inherent obligation of the contract enforced. This cannot be ascribed to a renewal of the obligation; for passing the line of a State can not re-create an obligation, which was extinguished. It must be the original obligation, derived from the agreement of the parties, and which exists unimpaired, though the remedy was withdrawn." "The Constitution contemplates restraint as to the obligation of contracts, not as to the application of remedy." So, if a State shall not merely modify or withhold a particular remedy, but shall apply it in such manner as to extinguish the obligation without performance, it would be an abuse of power which could scarcely be misunderstood, but which would not prove that remedy could not be regulated without regulating obligations."

"If it leaves the obligation untouched, but withholds the remedy, or affords one which is merely nominal, it is like all other cases of mis-government, and leaves the debtor still liable to his creditor, should he be found, or should his property be found, where the laws afford a remedy."

These quotations from this great luminary of legal science, who...