Penniman , 11 R.I. 333 ( 1887 )

I concur in the opinion of Mr. Justice Potter, though somewhat reluctantly.

Without here referring to all the decided cases of a character similar to this, it is sufficient to say that the Supreme Court of the United States has declared those acts to "impair the obligation of a contract," —

a. Which discharge a contract without performance;Sturges v. Crowninshield, 4 Wheat. 122; Hawthorne v.Calef, 2 Wall. 10.

b. Which impose such new conditions upon the sale of a debtor's property as materially to hinder and possibly to prevent a creditor from selling it to satisfy his judgment. Bronson v.Kinzie, 1 How. U.S. 311; McCracken v. Hayward, 2 How. U.S. 608.

c. And which withdraw, by exemption, so much of the debtor's property from "the obligation of the contract" as practically to annihilate it. Gunn v. Barry, 15 Wall. 610.

It has declared those acts to be valid which affect only the remedy. Mason v. Haile, 12 Wheat. 370.

In Bronson v. Kinzie, Mr. Chief Justice Taney says: "And although a new remedy may be deemed less convenient than the old one, and may in some degree render the recovery of debts more tardy and difficult, yet it will not follow that the law is unconstitutional."

Where a charter gave to a bank a summary process by execution against its debtors, the court says: "It is the remedy and not the right; and, as such, we have no doubt of its being subject to the will of Congress." Bank of Columbia v. Okely, 4 Wheat. 235, 245.

Acts which simply release a debtor from imprisonment have uniformly been upheld.

Now this act relates simply to the remedy, — i.e. to the form and course of proceeding, — and does not discharge the debtor, nor withdraw any of his property from the obligation of the contract. It does not prevent the attachment of any portion of it to be held for this debt; nor burden it with new conditions; it is liable at once to be levied on to answer to the judgment against the corporation, and the contract of the corporator to be personally liable for the debt of the corporation is as binding on him as ever; but, the creditor must bring a new suit and obtain judgment against the individual before his property shall be applied to pay the debt of the corporation, and before he shall "be imprisoned, or be continued in prison."

This is a change in the remedy, and I cannot say that it deprives the creditor of all remedy, or so abridges his remedial rights as to impair the obligation of the contract itself, or leave him one "hardly worth pursuing." Hence I am constrained to hold, following the decisions of the Supreme Court of the United States upon this provision, — the language of our Constitution in this respect is identical with that of the federal Constitution, — that this act is not unconstitutional.

Indeed, as to future contracts, it seems more consonant with reason and justice that a corporator should have some personal notice before his person or property is taken for the debt of the corporation.

Nevertheless, it cannot be denied that this act is very detrimental to the interest of the creditor, whose claim accrued under the old law. To be compelled to submit to the postponement, trouble, and expense of a new suit, while it may not impair the obligation of the contract, as that phrase has been defined, most clearly impairs the value of that obligation; and it is easy to conceive that many corporations have received credit simply from the existing liability of the stockholders and the summary process to enforce it.

This act, therefore, comes very near to the limit of the Constitution, if it does not transcend it.

I must say that the reasoning seems to me to be the stronger which holds that an act "to lessen or take away from the extent and efficacy of the remedy to enforce the contract, legally existing when the contract was made, impairs its value and obligation." 1 Kent, 12th ed. § 456, note a; Sedgwick on Stat. Constit. Law, 630.

But by respect for the high authority of the Supreme Court of the United States interpreting the federal Constitution, and by the principle "Stare decisis, et quieta non movere," I am led to the conclusion stated.