Opinion
June Term, 1862.
Patterson, for the plaintiff: The question in the case depended mainly on the statute passed since the revision of our statutes at large, passed at Dover, February 21, 1859, 11 Vol. Del. Laws 694, which repealed the last six lines of the pre-existing provision referred to in the case stated. Under that provision thus repealed, no writ of capias ad satisfaciendum could issue upon a judgment in this State by a non-resident without an affidavit filed by him alleging fraud in the mode indicated against the defendant; but since the repeal of that portion by the subsequent act referred to, no such prohibition or restriction now existed, and the law in regard to the matter, was consequently left just where it stood before the passage of the previous statute on which the defendant relied. The repealing act referred to was not invalid on the ground of unconstitutionality, or otherwise. Because it was not an ex post facto law within the meaning of that term, in its application to the present case, although it was not enacted until after the recognizance of bail on which this action was founded, had been entered into by the defendant. 3 Sto. on Cons. sec. 1345. Calder v. Bull, 3. Dal. 386. Fletcher v. Peek, 6 Cranch 138. Ogden v. Saunders, 12 Wheat, 206, 303, 329, 330, 335. Watson et al. v. Mercer, 8 Pet. 88. Nor because of its being retrospective in its application and operation, for judgment having been obtained against Goss, which ipso facto fixed the liability of his bail, neither of them had any vested right to have any particular process adhered to as preliminary to the plaintiff's availing himself of his legal remedies upon it. Any vested right appertaining to the case, rightfully belonged to the plaintiff to have any statutory impediments superimposed upon his common laws rights removed and neither the Federal, nor State constitution prohibits the legislature from passing retrospective laws generally. Watson v. Mercer, 8 Pet. 110. Bennett v. Boggs. 1 Bald. 74 Satterlee v. Mathewson, 2 Pet. 414. Even the Supreme Court of the United States cannot pronounce an act of a State legislature void as contrary to the federal constitution, merely because such an act divests vested rights of property. Warren Bridge Case, 11 Pet. 420. But the court will not declare a law to be unconstitutional, unless the conflict between it and the constitution is clear and palpable, and the presumption is always in favor of the validity of it. Cooper v. Tellfair, 4 Dal. 14. Ex parte McClelland, 1 Cow. 550. 3 Dal. 386. 6 Cranch 87. 3 Pet. 447. 2 Dal. 309. 7 Gill and Johns. 7. 19 Johns. 58. 2 Pet. 522. 4 Greenl. 140. 6 Ibd. 412. It could not be contended that the repealing act in question impaired or affected the obligation of any contract with Goss, or with his bail, the defendant, but it related to and affected only the remedy or judicial process on the judgment by way of executing and collecting it, and when, such was the case, it did not in contemplation of law and in the purview of the provision of the constitution of the United States on the subject, touch or effect, much less impair the obligation of the contract. 2 Sto. on Cons. secs. 1376, 1390. Tharpley v. Hamer, 9 S. and M. 310. Stocking v. Hunt, 3 Denio 274. Mason v. Haile, 12 Wheat. 370 . Bruce v. Schyler, 4 Gilm. 221. 4 Watts and Sergt. 218. 1 McLean 35. 5 How. (Miss.) 285. And there was no doubt that in a general sense, the mode of process constitutes a part of the remedy. Sto. on Const. of Laws, sec. 568.
But could a process which would be legal and valid against Goss, the defendant in the judgment, be illegal and invalid against the special bail, the defendant in this action? Or in other words, could the repealing act be constitutional and operative against Goss and at the same time unconstitutional and inoperative against Gray? The power of the legislature to interfere with vested rights, was it seemed unlimited, subject only to the restrictions to be found in the federal and state constitutions. Butler v. Palmer, 1 Hill 324. The People ex rel. Israel v. Tibbtz, 4 Cow. 384, 392. Cochrane v. Van Sorlay, 20 Wend. 526. The People v. Livingston, 6 Wend. 526. Mayor of New York v. Miln, 11 Pet. 103. Suydam and Boyd v. Broadnax, 14 Pet. 67. 10 How. 395. 3 Wash. 313. But was there any vested right in, or any contract in this case with the special bail divested or impaired by the exercise of the sovereign and legislative power of the State in question? And what is the nature of the undertaking of special bail? Is it a contract within the purview of the constitution? A sci. fa. sur recognizance is a judicial writ to have execution upon a debt of record. Cresman v. People, 3 Gilm. 351. Beers et al. v. Haughton, 9 Pet. 329. But a statutory bond taken in a proceeding like this, was not a private contract but rather a statutory engagement. Mason v. Haile, 12 Wheat, 370. Had Goss been surrendered by his bail in this case, would the court have ordered his discharge on the ground of the passage of the act in question after the recognizance of bail had been taken? Certainly not; and if not, how then could the bail be discharged on that ground? For the doctrine was now clearly established that when the principal would be entitled to an immediate and unconditional discharge, if he had been surrendered, the bail will be entitled to relief by entering an exoneretur without any surrender. Beers et al. v. Houghton 9 Pet. 358. Conely v. Griffen, 3 Harr. 333. A ground that would not be sufficient for the exoneration of the principal, ought not to serve to exonerate the bail, more especially where it arose from the act of a superior power without the procurement, connivance, or consent of the plaintiff in the action.
D. M. Bates, for the defendant: Under the recognizance of bail and the law then in force, he denied that the bail was liable, without an affidavit of fraud had been filed against the principal before the ca. sa. was issued against him, unless the repealing act of 1859 changed the obligation of the bail, which it could not do under article 1, section 10 of the constitution of the United States, inasmuch as it would impair the obligation of his contract. Before the act of repeal was passed, the bail was only qualifiedly liable; but after its passage, if it was subject to it, his obligation at once became unqualified and absolute. And that could not be done under the provision of the constitution before referred to. To change the obligation of a contract in any manner by adding to, or increasing it on the one side, or by removing, or diminishing the reciprocal obligation of the other party, was just as much an infraction of that provision of the constitution and an impairing of the obligation of it, as the unmaking, or the entire abrogation of the contract itself could be. 2 Sto. on Cons. secs. 1378, 1385. 3 Wash. 214, 257, 281, 302. Sturges v. Crowninshield, 4 Wheat. 122 , 197. Ogden v. Saunders, 12 Wheat. 214 , 257, 281, 302. Camfrange v. Burnell, 4 Wheat. 340. Bronson v. Kinzie, 1 How. 311. McCracken v. Heyward, 2 How. 608.
The obligation of a contract did not spring alone from the terms of it, but from those terms and the law as it existed at the time of the making of the contract in regard to the subject matter of it. Certain contracts contain in the express terms of them all that is to be done under them, as for instance, a bond for the payment of a sum of money simply. But there were many contracts, and classes of contracts in regard to which this could not be said, because they necessarily import and imply terms not expressed in them, and which may not even be apprehended by the parties at the time of entering into them, but which nevertheless are essential to the force, obligation and effect of them and which the law by implication incorporates in them, such as promissory notes, mortgages, and if he were called upon to suggest an especially apt illustration of one of the latter class, he would particularly mention a recognizance of bail. In the first class to which he had alluded the contract in terms contains no stipulation for days of grace, protest, or notice of non-payment after it, and yet in such cases, these by operation of law become a part of the contract and enter into and constitute as much the obligation of it, as if they were in express terms embodied in it. And this was altogether independent of and distinct from the matter of the remedy on the contract, which he admitted the legislature might modify at its pleasure, without affecting or impairing the obligation of it. The cases which he had already cited not only distinctly recognize this principle, but would serve to show quite as clearly the manifest distinction on that point.
As to a recognizance of special bail, the obligation of the contract and the liabilities of the bail depended less on the terms of the instrument than upon the rules of the court in which it was taken and the principles of law applicable to it. Beers v. Houghton, 9 Pet. 356. If the requirement alluded to in the repealed provision of the statute which was in force when the recognizance of bail in this case was taken, constituted a condition of it in effect, then it was a qualified one, which the repel of that provision afterward converted into an absolute and unqualified condition. But what is the nature of the obligation, or liability of special bail? He is not a surety for the principal, nor is his obligation simply to pay the money sued for in case the principal fails to do so; but his obligation is primarily to produce his body in case he fails to satisfy the judgment, or voluntarily surrender himself into the custody of the law therefor, and therefore his obligation as special bail does not and cannot arise and has no practical effect until a ca. sa. has issued against the principal, and whatever discharges the principal from that, will entitle his special bail to an exoneration from the obligation of the recognizance. This is the primary obligation of the bail under the recognizance, and whatever qualifies this, qualifies his obligation as such, and whatever changes it, changes, and of course, impairs in the sense and meaning of the constitution, the obligation of his undertaking and engagement under it. Beers v. Houghton, 9 Pet. 356. 1 Tidd. Pr. 354. 9 Wend. 462.
The ca. sa. is issued merely to fix the liability of the bail, and is not a remedy upon the contract, or recognizance of the bail. The ca. sa. against the principal is therefore what determines and fixes the obligation of the bail; but it is not a remedy on the recognizance of the bail, because it must precede the determination of his liability upon it, and has no characteristic, or property whatever of a remedy upon his contract; because there can be no breach of the recognizance on his part until after the ca. sa. is issued against the principal and he has failed to be forthcoming in response to it. When we speak of legal remedies, or a remedy at law, upon a contract in contradistinction to the legal obligation of it, although the one cannot exist without the other, it yet always imports legal process upon the contract itself to enforce the obligation of it because of the breach of it. There was therefore no reason for the contention that this case fell within the principle recognized in the cases cited on the other side, all of which related to the remedy upon and not to the obligation of the contract. To give such an operation therefore to the repealing act in question as had been contended for on the other side, would be to render it retrospective as to the obligation of it and not as to the remedy upon the cognizance of bail in the present case, which would have the effect even upon the authority of those cases, to render it, so far as this case was concerned, unconstitutional, inoperative and void. But is there after all, anything in the act in question to require the court to so construe it as to give it a retroactive operation? Was there anything in the terms of it which indicated that the legislature contemplated or intended that it should have any other effect or operation than such as usually attended upon the enactment of statutes by it, that is to say, that they are to have the force and effect of public laws from the date of their passage only, unless a clear and evident intention appears to the contrary; and unless it does so appear, the court will in no case give such a construction to a statute as to impart to it any retrospective operation, or effect whatever. Sedw. on Cons, and Stat. Law 132. 2 Show. 17. 2 Mod. 310. 4 Burr. 2460. Moore v. Duslen, 2 Exch. 22. Dash v. Vankleck, 7 Johns. 477. Johnson v. Burnill, 2 Hill 238. The People v. Curnal, 2 Seld. 463. Boyd v. Barringer, 23 Miss. 421. Plumb v. Sawyer, 21 Conn. 351. Duffiel v. Smith et al., 2 Serg. and Rawle 590. Bedford v. Skilling et al., 4 Serg. Rawle, 401. Hasting v. Lane, 15 Maine 134. 5 Bac. Abr. 836. 1 Black. Com. 46.
Comegys, for the same: If the repealing act in this case was to be considered as affecting the remedy only and the legislature may ad libitum interfere with and modify the remedy on the ground that it does not impair the obligation of the contract, or the recognizance of bail in this instance, then it would be perfectly competent for it to enact that the obligation of bail should become fixed and absolute on the recovery of judgment against the principal, without any ca. sa. whatever. But would that be in consonance with the undertaking and engagement of the bail, which was in the alternative, or originally conditional in its character only, that if the principal, the defendant in the suit, on the recovery of the judgment against him, did not surrender his body on such a writ being sued out against him, or the bail did not thereupon do it himself, then and in that event the latter should be liable for the amount so recovered against him? For such was the original condition and such was the original and only obligation of the bail in the recognizance; and although it might not have been embodied in exactly so many words, yet in contemplation of law and in point of fact it was as distinctly understood and implied in it, as if it had been inserted in it in so many express words, for the law made it a part of the recognizance. Well, if. the unwritten, or common law made this a part of the obligation thus assumed by him, did not the express provision of the written law, or statute then existing and in force on the subject, equally make it at that time one of the essential and necessarily implied terms and conditions which must precede the absolute completion and fixation of his obligation and undertaking under it, that there should also be an affidavit of fraud filed by the plaintiff in the suit, or some one for him such as the law then required in such a case, before the plaintiff should be allowed to sue out such a writ in order thus to fix and complete the obligation and liability of the bail for the debt? Were not therefore both of these precedent terms and conditions — and the latter quite as much as the former, — necessarily implied and understood, and by the law made most material and substantial parts of the contract of bail in this case, and effect and qualify in a most essential respect, if they do not in fact, constitute and compose his sole obligation under it? And was it then in the power of the legislature by any act which it could pass, to abrogate and abolish both, or either of these precedent terms and conditions, as well understood and implied, as if they had been expressly embodied in the contract at the time, without impairing the obligation of it, and making another and entirely different contract out of it? If so, he was at a loss to comprehend it.
It so happened in this case, that this very provision of the statute which it was now contended on the other side, was without prejudice or detriment in contemplation of law to the defendant in the present action, and did not impair or in any manner affect the obligation of his contract under the recognizance, constituted the chief consideration at the time which induced him to enter into it. Neither of the parties, the plaintiff, or defendant, in that suit, were citizens of, or resided in this State; but the defendant in that suit was well known to the defendant in this action, as a gentleman of high character and umimpeachable integrity, and as he had every reason to believe that no such affidavit of fraud, as the law then required and we insist still requires, could ever be filed against him, he, of course, had no hesitation, because he apprehended no danger, in entering into the recognizance as his special bail in that action. The case therefore addressed itself to his counsel, if not to the court, as one of more than ordinary interest and hardship under the particular circumstances which had attended it.
J. A. Bayard, for the plaintiff: At common law and by the course of the courts in England, the ca. sa. is issued, not for the purpose of arresting the principal, for it might lie in the office of the sheriff four days and then be returned, without any search for, or effort made to arrest him, but for the purpose only of enforcing the liability of the bail. It was no part of the condition, and was not one of the terms of the contract, that a ca. sa. should be issued, or the bail would be discharged. It was only by the practice of the courts there that a ca. sa. in such case was issued, and became necessary, and our statute had followed it. But to show that it constitutes no part of the condition, or of the terms of the contract, but has relation merely to the remedy upon it, it was only necessary to remark that the obligation of the recognizance is not discharged, even if no ca. sa. is issued on the judgment against the principal, and it was only necessary when the plaintiff is about to proceed to his remedy against the bail for the debt. Besides, the ca. sa. is not against the bail, but it is against the principal and the defendant in the judgment, and being a writ of execution on the judgment, what possible pretext could there be for saying that it does not relate to the remedy, but is by implication of law and the intendment of the parties, one of the terms and a part of the condition of the contract of bail? The acts in question, both the repealing and the repealed act, merely affected the remedial proceeding at law against the bail, but it had nothing to do with the contract itself, or the terms, conditions, or obligation of it. And this as a matter which merely pertains and relates to the remedy, or to a proceeding preparatory to the enforcement of it, does not at all depend upon the liability of the bail as either expressed or implied in the recognizance, or any part of the contract, but upon the provisions of the law and the rules of the court in regard to the matter; and which, inasmuch as they pertain and relate to the remedy exclusively, may be varied, or modified at any time by the power which creates and prescribes them. And therefore it was that Justice Story remarked in the case of Beers v. Haughton, 9 Pet. 356, that the recognizance of special bail being part of the proceedings in a suit, and subject to the regulation of the court, the nature, extent and limitations of the responsibility created thereby were to be decided, not by a mere examination of the terms of the instrument, but by a reference to the known rules of the court and the principles of law applicable thereto. Whatever in the sense of those rules and principles will constitute a discharge of the liability of the special bail, must be deemed included within the purview of the instrument as much as if it had been expressly stated in it.
As to the point made on the other side that in the construction of a statute it was never to receive such as would give it a retrospective operation, unless it was expressly provided in it, or it was clear and evident in it that it was intended to have such effect, he would simply say that in the case then before the court, the judgment on which the ca. sa. was issued was not recovered until after the repealing statute in question was enacted, and relates only to judgments, recovered by non-residents, with or without special bail, and to writs of ca. sa. thereon, but without a word about special bail. What reason could there then be for such an objection, since it had no retroactive operation whatever with reference to that judgment?
THIS cause came up on a case stated and questions of law reserved for a hearing before all the Judges of the Court of Errors and Appeals at the last term and was held under advisement by them until the present, when their opinion was delivered.
By the written case as stated, it appeared that a writ of capias in an action on the case at the suit of Andrew D. Cook, the plaintiff, against George Goss and John McGinniss trading as the firm of Goss McGinniss, was issued on the 12th day of July, 1856, returnable to the November Term of that year in the Superior Court for New Castle County, and that Andrew C. Gray, the defendant, became special bail for George Goss in it, John McGinniss, the other partner, having been returned to the writ non est inventus. The recognizance of bail was entered into by him on the 10th day of September, 1857. The action proceeded to issue and on the 28th day of November, 1859, judgment was confessed in it by Goss, the defendant, for $5,551. Upon the 14th day of March, 1860, a writ of capias ad satisfaciendum was issued on the judgment against Goss and delivered to the sheriff of the county returnable at the ensuing May Term of the court, when it was returned non est inventus. But no affidavit of fraud had been filed in the case previous to the issuing of the last mentioned writ, pursuant to the provisions of section 52 of chapter 111 of the Revised Statutes of the State, which among other things provided that no such writ should in any case be issued upon a judgment at the suit of a person not at the time such judgment was recovered residing within the State, without an oath or affirmation first made and filed in the office of the prothonotary, that the defendant in the judgment was justly indebted to the plaintiff in it in a sum exceeding fifty dollars and that he verily believed the defendant had disposed of his property to the value of more than that sum, with the intent to defraud his creditors. And that neither Cook nor Goss had ever been citizens of, or resident in the State.
It was thereupon agreed that if the court should be of opinion that the fact stated that the said last mentioned writ Was lawfully issued, the judgment should be for the plaintiff, the amount of it to be ascertained by the prothonotary, but if otherwise, then for the defendant.
The action in the case stated was on a scire facias at the suit of Cook, the plaintiff, on the recognizance of bail in the action before mentioned, against Gray, the defendant.
This case comes up on a case stated and questions reserved for hearing before all the Judges.
It appears from the record that the plaintiff, Andrew D. Cook, instituted suit against one George Goss on the 12th of July, 1856, that Andrew C. Gray became the special bail of Goss on the 10th of September, 1857, and that judgment was recovered against the latter on the 23d of November, 1859.
On the 14th of March, 1860, a writ of ca. sa. was sued out against Goss returnable to the next May term, which, in due course, was returned by the sheriff non est inventus. Both Cook and Goss were non-residents of this State, at the time the judgment was recovered.
A writ of scire facias was sued out against Andrew C. Gray, as special bail, on the 10th of June, 1860, returnable to the November term following.
At the time Mr. Gray became special bail, the fifty-second section of chapter one hundred and eleven of the revised statutes of this State, was in full force.
By the concluding paragraph of this section, it is declared that no writ of capias ad satisfaciendum, shall, in any case, be issued upon a judgment at the suit of a person not at the time such judgment is recovered residing within this State, without an affidavit of fraud first made and filed as therein before is specially provided. Afterward, on the 21st of February, 1859, for reasons not generally understood, the legislature was induced to repeal the said concluding paragraph of section fifty-two. This was done after the entering of special bail, and before the recovery of judgment against Goss. The repealing act contains no saving, as to pending suits; it merely declares "that the concluding paragraph, being the last six lines of section fifty-two of chapter one hundred and eleven of the revised statutes of the State of Delaware be, and the same hereby is stricken out, and repealed."
No affidavit of fraud was made and filed by the plaintiff prior to the issuing of the writ of capias ad satisfaciendum: and this circumstance, in connection with the construction to be given to the act of the legislature of the 21st of February, 1859, has given rise to the controversy in this suit, — a controversy, involving a consideration of the power of a state to change or modify, by legislation, the remedies given by the existing law, for the enforcement of contracts.
Upon this state of facts two questions have been submitted for our decision. First, Whether the repealing statute of the 21st of February, 1859, impairs the obligation of the contract entered into by the defendant, as special bail? Second, Whether the said repealing statute should be so construed as to give to it a retrospective operation? Both of these questions have been very elaborately and ably argued by counsel on both sides; and most of the authorities, having a bearing upon the subject have been brought to our attention. We propose to consider these questions in the order in which they have been presented. In regard to the first, it may be proper to observe generally, that a distinction is taken in the books, between a contract, and the obligation of a contract. Indeed, the distinction seems so manifest from the very terms of the constitution, as to require no aid from judicial interpretation or authority to support it. A contract is defined to be a compact between two or more persons; or, an agreement to do, or not to do, a particular thing. It matters not whether the contract be executed or executory, — expressed in terms, or implied by law. It may in form be a grant, which, in effect, is a contract, but a contract executed, the obligation of which continues to exist for its protection. The constitution makes no discrimination whatever, between different kinds or classes of contracts. By its terms and its spirit, it comprehends and takes under its protection all that are valid of every description.
The obligation of a contract, that is to say, the civil obligation, for this alone as distinguished from the merely moral obligation, is intended to be protected by the constitution, is that law which binds a party to perform his undertaking; and it consists in the effective force of the law which applies to, and compels performance of the contract, or a compensatory equivalent in the way of damages for non-performance. It is not in the contract itself, that the obligation as an inherent quality, can properly be said to reside, but in the law of the contract.
The broad and unqualified doctrine, that the existing laws of a state enter into, and form an essential part of the contract, would, it seems, if carried out to its logical results, operate most injuriously in restraint of the legislative power of the states over subjects hitherto considered as being clearly within their legitimate jurisdiction. Do all the laws of the state, enter into and form part of the contract? If not all, then what portion of them? and where are we to draw the line of discrimination between those that enter into the contract, as one of its conditions or stipulations, and those which do not? This, at least, is certain, — the doctrine that the law of the remedy enters into the contract, finds no sanction in the decisions of Chief Justice Marshall, or the other great Judges of his day; and the only decisions which seem to give countenance to such a doctrine, are of comparative modern origin, and claim a different paternity. It would appear, therefore, to be the part of wisdom to adhere to the old doctrine, that, whilst the laws of a state where a contract is made, determine its validity, construction, and obligation, they do not in fact enter into and become an essential part of the contract itself.
The distinction between the obligation of a contract, and the remedy for its enforcement, ought to be considered as well established. It was first authoritatively settled in the year 1819, in the case of Sturgis v. Crowninshield, 4 Wheaton, 122. Chief Justice Marshall, who delivered the decision of the court in that case, says, that "the distinction is founded in the nature of things, and that without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the legislature shall direct." And this doctrine, has been recognized and affirmed, by a long series of decisions, from that day to this.
In the case of the Charles River Bridge v. Warren Bridge et al., 11 Peters 581, Mr. Justice McLean declares, "that after a careful examination of the questions adjudged by the Supreme Court they seem not to have decided, in any case, that the contract is impaired within the meaning of the federal constitution, where the action of the state has not been on the contract." Even as late as the case of Butler et al. v. Pennsylvania, reported in 10 Howard 416, the Supreme Court say, that the contracts designed to be. protected by the tenth section of the first article of the constitution of the United States, are "contracts by which perfect rights — certain, definite, fixed private rights of property, are vested." What vested right, what property, can a party have in a mere remedy? The same distinction between the obligation and the remedy, is to be found in Mason v. Haile, 12 Wheaton, 370. Also in Bronson v. Kinzie, 1 Howard 315, where Chief Justice Taney says, "a state may undoubtedly regulate at pleasure the mode of proceeding in its courts, in relation to past contracts, as well as future." So also, in McCracken v. Hayward, 2 Howard 608, in which Judge Baldwin concedes the power of the state to "prescribe and shape the remedy." We might cite many other authorities, but it is not our purpose to go into a critical examination of the numerous decisions, bearing more or less directly on the question, which have been made in the Federal and State Courts. The distinction may, perhaps, be considered a nice one, and it may sometimes be very difficult to determine whether a law affects the remedy or impairs the right.
Nevertheless, without undertaking to criticise the wisdom of the distinction, it is surely enough for us to know that it has been authoritatively settled and uniformly held by the federal tribunals. But whilst I say this, I must in candor admit that the cases of Bronson v. Kinzie, and McCracken v. Hayward go further in favor of the theory that the existing law is incorporated into the contract, than any of the cases which preceded them; and that they have a tendency, especially the latter, to confine the operation of the distinction between the right and the remedy, within narrower limits, than is justified by previous decisions in the same court.
It is however, worthy of remark, in respect to these cases that they might have been decided on other grounds, without touching the constitutional question — that the court was not unanimous — that they were decided without argument on the constitutional question — and that in fact, they constitute an unwise departure from the settled practice of the court, never to decide so grave a question as the constitutionality of a state law, unless the question were necessarily involved in the decision of the case before the court. In neither of these cases was the question of the constitutionality of the laws of Illinois properly before the court for its decision.
By the act of Congress of the 29th September, 1789, it was provided "that the forms of writs and executions, except their style, in the circuit and district courts, in suits at common law, shall be the same in each state respectively, as are now used or allowed in the Supreme Courts of the same." And by the act of the 8th of May, 1792, this provision is substantially re-enacted, "subject to such alterations and additions as the courts respectively shall, in their discretion deem expedient."
On the 2d of March, 1793, congress by an other act declared in substance that writs of fi. fa. issuing out of the courts of the United States, should as to their execution, and the appraisement of property taken under them, conform to the practice in similar proceeding in the state courts.
Under this state of the law, the cases of Wayman v. Southard, 10 Wheaton 2, and The Bank of the United States v. Halstead, 10 Wheaton 51 arose, involving as it was thought, the constitutionality of certain laws of the State of Kentucky in relation to execution process; but the Supreme Court of the United States held that the acts of Congress of 1789, and of 1792 did not apply to States subsequently admitted into the Union; and that, as the Kentucky statutes had not been adopted by the Circuit Court of the United States for the State of Kentucky, they did not apply to the United States Courts. The Supreme Court therefore declined to decide the question of the constitutionality of those laws.
In consequence of these decisions Congress passed the process act of May 19th, 1828, which declares "that writs of execution and other final process issued on judgments and decrees rendered in any of the Courts of the United States and the proceedings thereupon, shall be the same as are now used in the courts of the states." And it provided "that it should be in the power of the courts, if they see fit, in their discretion, by rules of court, so far to alter final process in said courts, as to conform the same to any change which may be adopted by the legislature of the respective states for the state courts."
By this law of 1828, the Circuit Court had authority to adopt the Illinois statutes in regard to final process. But its authority was to adopt them as a whole, and not in part only. The Circuit Court, however, undertook to alter and adopt them in part only, which was not warranted by the act of Congress of 1828, and so the Supreme Court held. Hence, there was no adoption of the Illinois statutes according to the meaning of the act, and the question of their constitutionality was not legitimately before the court for adjudication. And yet a majority of the Judges assumed, contrary to the settled practice of the court, to decide without argument, a grave constitutional question not properly before them, and the deciding of which was not necessary to the decision of the cases before the court. Judge McLean in dissenting from the opinion of the majority of the court says that the points certified from the Circuit Court, "would be answered by saying that the acts of the legislature referred to can have no operation in the case." And he expresses his regret that the court deemed it "necessary or proper to consider the constitutionality of the above acts, and holding them unconstitutional" — the decision of the matters before the court not requiring this judgment. And he remarks "it is the more to be regretted, as there was no argument, written or oral, to sustain these laws."
Mr. Justice Catron says in the case of McCracken v. Hayward, "I have formed no opinion, whether the statute of Illinois is constitutional or otherwise. The question raised on it is one of the most delicate and difficult of any presented to this court; and as our decision affects the state courts throughout, in their practice, I feel unwilling to form or express any opinion on so grave a question, unless it is presented in the most undoubted form, and argued at the bar."
Under these circumstances, we may well view with caution the tendency of these decisions, to ignore to some extent at least, the distinction between the right and the remedy, — a tendency, which finds no sanction in the previous decisions of the court, and which, as it appears to us, would be both unsound and unwise to follow.
It has been insisted for the defendant that the 52 section formed part of the contract of bail, and that as a consequence the making and filing an affidavit of fraud as prescribed by that section, became a condition precedent to the issuing of the writ of capias ad satisfaciendum. If this position be sound, the plaintiff must fail.
But it is to be remarked that the entire chapter to which the 52 section belongs, has relation to the remedy — its whole object being to regulate execution process. Now, all the processes in a cause, whether original, mesne or intermediate, or final, are of the remedy. In a general or comprehensive sense, the term process signifies all the proceedings in an action from its inception to its conclusion. All that the legislature has done, has been to alter the mode of procedure — to do away with the affidavit of fraud, which, before the repeal, was but one of a series of steps or processes, each tending to the same end, and all belonging to the remedy. If arrest and imprisonment are of the remedy, as it must be conceded they are, why is not the affidavit of fraud of the same character? And if it is competent, as it undoubtedly is, for the legislature to abolish imprisonment as to past contracts, without impairing the obligation, why may not the state by the same instrumentality, constitutionally dispense with an affidavit of fraud? We confess ourselves unable to discover any satisfactory reason why it may not do so.
We think, therefore, that the repealing statute did not touch the obligation, but merely modified the remedy. Having arrived at this conclusion, it remains for us to consider the second question, as to whether, according to the settled rules of construction, the repealing statute, can be given a retrospective operation? Whether it is just or wise, as a general thing, to pass retropective laws is not the question. We must be content to administer the law as we find it settled by authority, and not as we would have it to be. We have abundant authority for saying that the states may enact such laws. Nothing certainly can be found either in the federal constitution, or the constitution of this state, prohibiting them, unless they are properly ex post facto laws, or laws impairing the obligation of contracts. Subject to these exceptions, the constitutional powers of the state cannot be doubted.
But it is contended that, in the absence of express evidence of legislative intent that the law should operate retrospectively, the court will not so construe it. And this is true as a general proposition, but it is not so, universally, as we shall presently endeavor to show.
Numerous cases have been cited by the counsel for the defendant, in support of this position, all of which have been carefully examined. Gilmore v. Shooter, 2 Mod. 310. Couch q. t. v. Jeffries, 4 Burr. 2460. Moon v. Durden, 2 Exch. 33. Dash v. Van Kleek, 7 Johns. 477. Johnson v. Burrell, 2 Hill 238. The People v. Curual, 2 Seld. 463. Boyd v. Barringer, 23 Miss. 421. Plumb, v. Sawyer, 21 Conn. 351. Bedford v. Skilling et al. 4 Serg. and Rawle, 401.
Whilst we find no fault whatever with the law of these cases, it is proper to remark that they differ from the case before us in very important particulars. They are all, I think, without exception, cases relating to positive enactments, and involving vested rights, of one kind or another. The case which we are called on to decide is the case of a repealing statute, involving no right of the defendant, either vested or inchoate, but simply effecting a modification of the plaintiff's remedy.
The authorities clearly distinguish between these different kinds of statutes as to the construction to be given them. Hence, we find the rule, which, as to positive enactments, require express evidence of legislative intent in order to give them retroactive effect, has been held not to apply to repealing statutes. Indeed, it would seem that the simple fact, of an absolute repeal of a former statute, without any express saving clause, is so inherently significant of an intent to do away, utterly, with every thing which may have arisen under the abrogated statute, unless protected by the prohibitions of the federal constitution, as to require the courts to give the repealing act a retroactive operation. Butler v. Palmer, 1 Hill 324. Dwarris in his treatise on statutes and their construction, page 676, declares as the result of the English cases, that "when an act of parliament is repealed, it must be considered, except as to transactions passed and closed, as if it had never existed." And Chief Justice Tindal, in speaking of the effect of a repealing statute, says, "I take it to be, to obliterate the statute repealed, as completely from the records of parliament, as if it had never passed, and that it must be considered as a law that never existed, except for the purpose of those actions or suits which were commenced, prosecuted and concluded while it was an existing law." Key v. Goodwin, 4 Moore and Payne 341. Surtees v. Elleson, 9 Barn, and Cress. 750. Maggs v. Hunt, 4 Bing. 212. Key v. Gordon, 6 Bing. 576. Miller's Case 1 Wm. Blac. 451. Rex v. Justices of London, 3 Burr. 1456.
The same doctrine is recognized by the Supreme Court of the United States in Yeaton v. The United States, 5 Cranch 281, and in The Schooner Rachel v. the same, 6 Cranch 329, where it was held that the repeal of a statute giving a penalty puts an end to all actions pending for penalties under the act at the time of passing the repealing statute. And this doctrine applies, as well to civil as criminal proceedings. Butler v. Palmer, 1 Hill 324. Stoever v. Immel, 1 Watts 258. Hammon v. Commonwealth, 7 Harris 329.
We do not mean to be understood, as maintaining, that the power of the legislature over the remedy is unlimited. To abrogate all process, and thus take away all remedy, would amount to an actual denial of justice, and would in effect impair the obligation of contracts. In this case however, neither the right, nor the remedy, is impaired; on the contrary, the latter is merely improved and facilitated.
Considering, that the repealing act of February 21, 1859, did not impair the obligation of the contract of bail, nor interfere with any vested or inchoate right of the defendant, we are of opinion that the plaintiff is entitled to recover, and we shall therefore, so certify to the Superior Court for New Castle County.
All the Judges concurred in the foregoing opinion with the exception of Wootten, J. dubitante, but who expressed no dissenting opinion.