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1
VOL. IV
SALISBURY, JV. G, JULY 30, 1869
NO. 30
KIT V
1 'ih iwmw ,- , , , u .
' 1 I .
!
lff&
-3
EDUCATIONAL.
Patronise your own Institutions.
THE Exercises of the C Dcord Female
College, at Stateevitle. will be resumed the
1st of September next.
Board, fuel, washing. 913 per month.
Tuition in regular classes from $2,30 to
$5,00 mt month.
Muaic, Drawing. Painting, dee., extra at
moderate rate ; payment bait in advance tor
term of four months, ending Dee. 23. For
further particulars address
E. F. ROCKWELL.
Statesville. July 9. iim Presideut.
HEGE'S SCHOOL,
DU I COLLEGE, IV. C.
REV. G. W. HEGK, A. M.
1 HE SESSION of 1868 opens August 9th,
J -".. and will continue forty weeks.
All the. branches taueht m Preparatory
School and Ootlejre max be pursued here. - -
Students, male or female, may enter at any
time, and pay by the month, or for such time
sm they may wish to remain.
Tuition from $2 to $5 per month.
Hoard " fcJ to $10 "
Such ax wish may rent rooms and board
themselves.
Address, REV. 0. W. JJBGE, A. M.
July 9. 1869. g7 4w
University of N. Carolina.
THE FALL SESSION of this Institution
will commence on the 18th dav of August
prox. and continue twenty weeks. Prepar
atory and Normal Department, and a Gen
eral Course of University Lectures, will be
opened. Entire expense, including hoard,
$85 to $100. All the benefits of the Instit u
tion are offered, free of charge, to a limited
number of residents in the State. Apply to
the President. SOLOMON POOL.
Chapel Hill. July th, ISfg). 37 Ow
Edge worth Female Seminary.
The next session will com-
menoe on the first Monday of September. The
entire expense of Board and Tuition will be
from f 100 to $110 if paid in advance. Each
boarder will furnish her own lights and towels
and also a pair of sheets and pillow cases. For
circular address J. M. M. CALDWELL,
july 2. 18C9 3m Greensboro', N. C
Pleasant Grove Academy.
Mile and Female.
THE SEVENTH SESSION WILL COM
mencepujhe 9th of August next
Course Entflith, Classical, Mathe
matical. Terms: Tuition from $5 to $10 per session.
Board with the Principal $9 per month.
For particulars address the principal at Fol
ton, Davie Co., N. C.
W. J. ELLIS, Principal.
Pleasant Grove. N. C, (
June To, 1800. 25 3ra
BINGHAM SCHOOL.
MEBANEVILLE, N. C.
Win. Bingham, Robert Bingham, W. B. Lyneh.
The session of lseo-o begins
AngOSt 25th, and continues forty weeks.
fhe course ol Instruction includes the ordi
nary English brandies, thn Ancient Languages.
French, Mathematics, Book-Keeping, and the
elements of Natural Science.
Expenses, (including tuition, .board, fuel,
washing, books and clothing,) $305.
Circulars sent on application.
June 18, 1859. 24 6w
I LIN ACASBMY. The
first Session of this Academy will com
mence on the lir-t Monday in August ensuing.
1'upils can enter at any time and tie charged from
the tune of eatrance.
The rates of tuition will be as follows: $7.60
110.00 and f 15,000 per session of 6 months payable
at the end of every month.
No pains will be spared to give pupils s thorough
training in all the branches usually taught in a first
class Academy.
The Academy is located in a healthy and moral
community in Franklin Township four miles from
tsalisbnry, on the new road to Mocksville.
Hoard can be had in respectable families from 7 to
8 dollars per month. L. H. BOTHROK,'
J una 95, 186. 35:3m Principal
PROFESSIONAL.
M. h. Pijsrisrix,
ATTORNEY AT LAW.
LEXINGTON, N. C.
WlLL PRACTICK in the courts of David
son, Forsythe, Guilford, Alamance and Ran
dolph counties :
KEFEREX'CK,
Hon.
R. M Pearson, C. J. of N. C, Raleigh
K O. l!.-a le. Associate Justice, "
Thomas Settle, " " "
K. P. Dick, " "
Bedford Brown. Yanceyville, N. C.
Hon. John Kerr, " ;1
J. R. McLean, Greensboro', if. 0.
Thomas Rnffln Jr '
.i
" J. M. Cloud. Dobson. N O. ,
January 29, 159. 4
-tf
J II s. Ill DERSOX,
ATMVEY & 1-01 XSELLOR AT LAW,
SALISBURY, N. C. .
Will attend promptly to the Collec
tion of Claims feb26 ly
PR. O. A. HENDERSON,
1 t Njuealh, now wotila tne widow get doWer, or a
II AHVfl roomed the nrcti. of Medicif
respectfully oilers his professional services I)
. i it i r i .. ...
the public.
OFFICE: The one late occupied by White
head. A Heudurson. Calls may be hrft eiibs
at bk office' cr at Unniss' Drug ture.
Salisburv, Feb U. 1S09. -flr
Dr. I. W. JONES,
TTAVING located in Salisbury, offers his
XX I'rofessK
ionnl services to the Miublic. 0C- '
ti e on t 'ouncil Street, opposite tbe Court House j
uul iwiit duor to the Law office of Hon. liurton .
Craigo.
May 2H. IHRJ-ff.
liaUlgH J atiomil tiatiK ft
A...
Carolina.
THE n'RP bVvkTTi! J? HrvLl'T,
Tsp U Stuck of th U AMv to r I V L IK N illir.II '
ThVsaVD Ik iLl. alts. Pinoni wi.UingU.sub-
to ili umc willnloua mmn mi. at with i
C PKWKY, I
Vs.-W- 0 ftwSfent. I
TI)c(DIDXortl) State
IM'IU.IHHKU WKKKLV MY
Editor and Proprietor.
bath or cacBiraoN.
Ohm Y k a k, payable In advance. $3.00
Six Months, " 1.30
A Copies to one address,. 12,50
10 Copies to one address. 20,00
Rate of Advertising.
One Square, fret insertion $1,00
For each additional insertion, 50
Special notices will be charged 50 per eent
higher than the above rates.
Court and Justice's Orders will be publish
ed at the game rates with other advertise
ments. Obituary notices, over six lines, charged
as advertisement.
CONTRACT KATES.
1 Square.
2 Squares.
3 Squares.
4 Squares.
Column,
i Column.
1 Column.
$2 50 $3 75
4 50, 6 25
j C 00 0 00
8 00 11 00
11 00 16 00
18 00 24 (mi
28 00 40 00
$.-00 $8 50 $i:i(Kl
8 50 13 00 22.00
12 00 20 00 30.00
15 00 25 00 37.50
20 00 30 00 45,00
30 00 45 00 75.00
50 (XI SO (It) 130,00
CONSTITUTIONALITY OF TIIE HOME
STEAD ACT OPINION OF TIIE SU
PREME COURT, IN THE CASE OF
HILL vs. KESLER, FROM ROWAN, DE
LIVERED BY JUDGE READE.
The question involved in this case is whether
the provision in our State Constitution exempt
ing certain property from execution sale, inijairs
the obligation of pre-existing contracts.
The provision of the Constitution i as follows :
Akt.jX. Skc. 1. The personal property of
any resilient .of this State to the value of five
hundred dollars, to be selected by such resident,
shall he and is hereby exempted from sale under
execution or other final process of any Court is
sued for the collection of any debt.
Sec. 2 Every Homestead and the dwelling
and buildings used therewith, not eaceeding in
value one thousand dollars to be selected by the
owner thereof, Ac., shall be also exempted.
There has been suitable legislation to carry
out said provision.
the obligation of contracts, either expreaajy or I
bv implication, it is against the Constitution of
the United Suite and therefore void.
The obligation of a contract is the duty of its
performance according to the terms thereof?
Any act which alters its terms, or enables either
party, without the consent of the other to alter
or evatie its terms, impairs its obligation nnct is,
therefore void. A promises to pav to B$100on
a given day. An act requiring him to pay a
day later, would alter the ternis as to time and
impair tbe contract. No an act requiring him
to pay $101, allowing him to discharge the debt
with $99, would alter terms as to the amount,
Ac.
We concede, also, that a contract must be un
derstood to be made with reference to existing
laws for its enforcement. And if, at the. time of the
contract, there are laws m existence for its enforce
ment, it is the same as if the State were to say
to the parties, there are now and so there shall
continue to be, laws to enable each party to en
force tbe contract. And after such assurance, if
the State abolish, or injuriously change therem-
edv, it would be violative of the Constitution of
die United States and therefore void
The contract in this case was made before the
constitutional exemption, and, therefore, when
tiie debtor agreed to pay the creditor a certain
sum, we are to enquire what was the remedy for
the enforcement of that contract ?
It was to sue him, get judgment, issue FL Fa.,
levy upon and sell such property as he might
have subject to execution, Observe, not levy
upon and sell any particular property, or all he
might have ; but only such as might be subject
to execution. What is his remedy now under the
Exemption Law? It is, to sue him, get judg
ment, issue execution, levy upon and sell such
property as he has subject to execution. What
is the difference in the remedy then and now?
There is not only no injurious alteration, but
there is no alteration at all, so far as the procee
dings are concerned.
It wan formerly the case that, when a creditor
got his judgment he had two remedies one, the
levy uon and sale of property, and the other
the imprisonment of the debtor. The Legisla
ture abolished the remedy by imprisonment,
which often brought the money, when nothing
else would, leaving only the remedy against the
property. And then it was contended that the
abolishment of the remedy of imprisonment im
paired the eontrart. Rut the Courts in reiieated
cases, decided otherwise. The true import of
the law t" 'in'.', not that the parties should have
any particular or specific remedy, but a Mibstnn
tial and convenient one. In what way doc the
Constitutional exemption alter or impair the
contract which these parties made? lion is the
remedy changed ? What was the law at the
time of the contract, and which became a part of
it ? Was it that all or any portion of the pro
perty, which tbe debtor hid at the time of the
contract should be liable to execution sale?
Wits 'that the creditor's security for his debt?
Certainly not. The contract was personal and
a lien upou nothing. Else, now would it be if
the debtor had no property ? or, if he had any, -bow
would it be if he should sell it? Or, how
would it be with property acquired after the con.
tract? Or how, if a subsequent arid more vigi
lant creditor should get ahead, and take the
whole in execution ? Or, in case of the debtor's
WT ' provision 7 ur, now would funeral ex
I penses have the preference over all other dcbtn?
I Those considerations make it nlain. that no such
IWIWr HUH' lilt 1
clement enters into the contract, as that any par
ticular property which the debtor has at the time
of the coutrset, or which he may subsequently
acquire, shall be liable to execution sale; or that
auy.pactiuular remedy is guaranteed. The guar
anty i- that the contract snall'never lie altered
bv law and that there shall be a remedv to en
force it, And the contract is made, not onlv
with rehrcniie to the reniedv existing, but also
to such reasonable changes as the interest of so- ;
cietv reouire. and the State may think nroocr to
make.
Against this view, it is contented, that there
are express decisions to the contrary. If there
; such by die Court of our sister States, they
mm ailtitlfld it. roSlrf.J-tflll nn.t if liw I Via liiinnwiu
"rt ,he Vnited S,a,','s k our own Court,
. ' . ,l . ....
Um" eRUtled w ,hr highest oundttion.
The cases most pressed upon our attention in
favor of the creditor are Bronson ys. Kinxie,
Ifownrd-HIl, snd McCrseken vs. Havwood.
mf '
11 I I
Howard 60S, both decided by Uic Supreme Court
of the United Statea. Rronson vs. Kinxie, where
it waa provided in a mortgage deed, Uiat If the
money secured was not paid at a given time, the
mortgagee might enter and sell. And the Leg
islature of Illinois passed an set to the effect that
the mortgagee should enter and sell, upon cer
tain conditions, not specified in the contract.
This was clearly an alteration of the contract
and impaired its obligation. It tJmnrjrl the oon
wtKx of (A partie. But, how is the contract
changed in our case? Not at all. It stand
word for word, as the parties made it. And so
too, the remedy, as we have seen, stands word
for word.
The oilier case, McCracken vs. Haywood,
arose under an act of tbe Legislature, which al
lowed the contract to atand, and the remedy to
stand, except that it provided, thttt when the
property levied on should be offered lor sale, it
should not be M unless it brought two-thirds
of its appraised value. The property was offer
ed for sale and would not bring the price. What
then was the Court to do? The act applied to
all the property the debtor had, and to all he
might acquire. So that, whether he had much
or Httftriwpwtr, h corrM tk be soid- and bv
no' possible mean could the creditor make hw
monev. Clearly here was a deprivation of all
remedy. But how is it in our case? The ex
emption (hies not cover all, hot only m ntur A of
the debtor's procrty, anil does not exempt his
future actpiisitons. It does not clog the execu
tion sale with unusual terms, which was the
ground upon which McCracken and Haywood
was decided, but leaven it nnrmbarraved. And
if it should happen, as in our case, that all the
debtor's property fulls under the execution, it
was not within the purview of the Constitution
that it should, but it is only the "aecuUnt," of
the debtor's property, and does not affect the
law. In the case of McCracken vs. Hay word,
the Court ordered the property to lie sold for
what It would bring, as the ou'y remedy left to
the creditor. ( ur attention waa also called to an
elaborate opinion of Judge Carpenter, of the
Circuit Court of South Carolina, I'm reel 1 vs.
Whaley, reported in the newspapers, declaring
the exemption laws of South Carolina, which
are substantiallv the same as ours, unconstitu
tional and void". The authorities relied on by
the learned Jndgesere muting others of less im
iortance, the aforesaid cases of Bronson vs. Kin
zie and McCracken vs. Haywood, ami we have
seen they do not sustain him.
Another case cited by him and directly in
point for him, is Dank vs. (iuackenbush, !i Ile
um 594, decided first by the Supreme Court and
then by the Court of Appeals of New York.
But the attention of the learned Judge was not
called to the fact, that, in that case, the Judges
in the Court of Apienls were equally divided,
and, therefore, the decision in the Court below
stood ; nor to the more important fact, that, in a
subsequent case ill JH-il, in the same Court,
Morse vs. Gould, 1 Keiu-tn 21, the case nf Dank
vs. Guaekenliush was received and overruled.
Again, the rase before Judge Carpenter did not
involve the point whether the Exemption Laws
impaired the obligation of contracts, and, there-
opinion upon that oucstion is onlv a
dietHin. He states the principles involved in llu
case as follows : i be judgment wits nv law a
rested right, a lien, a contract. Had the State
the Constitution-il power to divest the plaintiff
of his rights, and vest them 4k the defendant?
Upon the principles involved in-the lucre
is. no difierefice between liens ,y mortgage, and
bv judgment, the filmier of specific, the latter
general ; but both are vested, legal rights," Ac.
It wilrhe seen, therefore, that the question in
volved was not that of impairing the obligation
of contracts, under the Constitution of the I'ni
ted States; but of destroying liens and invading
vested rights, under tbe Constitution of South
Carolina. There Ls nothing therefi ire in that di
cision against any position, but thcri7rum of the
learned Judge; for it is not pretended that in
our case, there w.is any lien or vested right, we
are not therefore interested to inquire, whether
the learned Judge's decision, that "liens" ami
"vested rights" cannot be abolished by a State
Convention in framing their organic law.
Our attention was called also to a decision of
Judge Orr, of the Circuit Court of South Caroli
na, reported in the newspapers, sustainiug the
South Carolina Exemption Laws.
We are not aware of a single decision except
as before stated, either in the Courts of our sis
ter States, or of the United States, in which gen
eral exemption laws' have been held to an in
fringement of the Constitution of the United
States, There being no decision against them,
let us see if there are any in their favor.
The Legislature of New York, in 1842, pass
ed an act, exempting from execution in addi
tion to former exemptions "necessary house
hold furniture, working tools and team, not ex
ceeding $150 in value." The creditor obtained
a judgment upon a debt existing before the act,
and levied on the debtor- team, a pair of horses.
And the question was, whether the exemption
was good against pre-existing debts. The opin
ion of the Court was elaborate and able, that the
exemption was good, Morse vs. Would suwa.
The opinion is the more important as it re-revived
and overruled a former case in the same
Qenrt, Dank vs. Guackcubudi, cited by Judge
Carpenter, .
It also re-revived the cases of Bronson vs.
Kinzie and McCraekin vs. Haywood, and indeed
all the cases bearing on the subject, and distin
guished them from that, as We have from this.
In a late case in 9 Wisconsin, 559 Banmbaek vs.
Bade, the case of Morse vs. Gould, mipra, is re
revived and approved. And in Brousut! vs.
Kinzie. Tancv. J. savs: A State Legislature
may, if it think proper, direct that the necessa
ry, implements of agriculture, or the tisils of. a
mechanic, or articles of necessity in household
furniture, shall, like wearing apiiarel, not lie lia
ble to execution on judgments : and regulations
of this kind haw always been considered in ev
ery civilized community as proiierly belonging
to the remedy, to be exercised or not by everv
sovereignty, according to its own views of js.di-
cy, or humanity, it must reside in every Mate.
to enable it to secure its citizens trom unjust and
harrassing litigation, ami to protect them in
those pursuit, which arc necessarv to the exist
ence and welt ncing oi every commnmtv."
And in a subsequent case Planter s Hank vs.
Sharp, C. Ilowarif .SOl, Mr. Justice Woodbury
in ordering the opinion of the Supreme Court of
the United State enumerated exeintition laws,
among the examples of legislation, which might
be Constitutionally applied to existing contracts.
And in Big'ow vs. Pritchard 21, Pickering, the
Supreme Court of Massachusetts decided tliat
the Legislature might lawfully diminish the
creditors remedy to enlorec judgment, bv ex
empting a liart of the iiroiiertv ofthe debtor
Troui attachment on mesne process, or levy ol
execution, for example, articles of furniture,
bed and bedqing, ., necessary tor a debtor and
and his family. And in Morse vs. Gould, .supra,
it is said, that general exemption laws are valid
"though a ease might happen, possibly, where I
the exempt propertv would constitute all that
the debtor pawasMO. And in S late case, Me- i
t phennon vs. Hsliorne, 41, Miss. 1 19, reported in
t the Auril number of the American Law Re
view, p. 47t, the Supreme Court of MissLssipui
decided that the Mississippi exemption raw "was 1 that, .thus it is riiicn.
Constitutional as to contract existing at the ritrte j We have ftot tli.Might it necessary- to n,itiv
of its passage,"' We have adectsion of our own kthe suggestion, that inasmuch a the sale of land
Court directly. in. point. In Dean vs. King 13, under ecut ion is hy Statute, so it iuay he ex
p. 20, the f ourt dsatdes, Riitfin, G. 3. delivering : empted by Statute.
1 1 the opinion, than an exemption of a "mare and I No question arises ih this case a to the ihter
S $re hog,'' nnder the set of 184fl was good fsMjee w8h vested rights under dnr State Cnn.
against a debt contracted In 1840.
The case of 'Dean vs. Iving was this: The
exemption laws of 1844, bpplicd to debts con
tracted after 1st July 1846, ...id it was insisted
that die debt in that case was eoiitHuirtl before
1st July, 184A, although the Ismd for Ute con
tract was not executed until 1840. The Court
said the exemption was not made under the law
of 1844, because "a mare" was not embraced in
that law, but it was made under the act of 1848,
and that it was valid. It is true, that it does not
appear that it was objected, that the exemption
act of 1848 could not apply retrospectively, but
it could not have escaped the attention of the
Courts nor of two eminent counsel who argued
the case, that an exemption law of 1848, applied
to a debt of 1 K4ti, did ojierutc retrospectively as
to the. debt affected by k,
We have, Pki, our Legislative construction,
and the. practice of our Coiyts under it, for the
Itst twenty days. The Revised Code, adopted
in 1850, makes the exemption of: "one cow and
ealf, ten barrels of corn or wheat, fifty pounds of
bacon, beef or or ene barret offish, all ne
cessary forming tools for oue laborer, one bed,
bed -stead anil covering for every two memliers
of lft family, and such-ot)crproperty aa the
freeholders' may deem rwessary for the comfort
and support of snch debtor's family ; such other
preperty not to exceed rlt'ty dollars," applv to
all debts contracted since 1st July, 181"). It is
true that, by the act of 1 H 44, some of these arti
cles were exempted, but the bulk of them were
not embraced in any exemption act until 1848,
and yet they were made to apply to debt as far
hnrk as let July 184V.
Ho in l800-'7 our Legislature passed an act
exempting: All necessary farming and mechan
ical tools, one work horse, one yoke of oxeii, oue
cart or wagon, one milch cow and calf, fifteen
head of hogs, five hundred ttound of pork orba-
can, fifty bushels of corn, twenty bushelsof wheat,
and household and kitchen furniture, uol exceed
ing $200 in value." '
And this was not restricted to subsequent con
tracts, which is the more significant, as by the
same act a Homestead of oue hundred acres
without regard to value, was restricted to subse
quent debts. So that exemptions applying to
antecedent debut have bad the sanction of our
l.A-gislature and of This Court. -and of the practice
of all the Courts for the last twenty years. But
tlu.il it is suid that while that may have been so
in regard to necetnitrun, yet our exemptions are
too large, they are not necessaries. It it be con
ceded that the Legislature has power to exempt
any thing as to existing debts, then wiat are ne
cessaries is a question for the Legislature and
not for the Court. But our exempt imi laws here
tofore, have not been restricted to mere necessa
ries, but have locked to the "comfort and sup
jiort of tbe debtor's family." Rev. t ode, Skpra.
Ami the exemptions have liccn rciteatcdlv and
considerably increased, to keep txwe with
the
change of manners and customs and tbe Condi
tkm of our jieojile. It will readily pir tfuU
the lato exemptions of personal proper! v, in
many instances, might greatly have exceeded
.5()l). If the Legislature can exempt personal
property, it is not pretended that it' may not in
like manner exempt real estate a homestead.
It is objected that the Homestead law ought
not to be construed to operate retrospectively.
We admit that this js a general rule of construc
tion; with an exception, however, in favor of
remedial, aud as sometimes culled beneficial
laws. All our laws in regard to remedies and
procedure, have been lately altered by tbe new
Code of (.'ivil Procedure, and made to act retro
spectively. No debt, no matter when contract
ed, can lie sued for and recovered now as before
the Code. Even the Courts themselves have
been changed.
Bv the ael of H0S, a summarv reijnstly, by
motion for judgment on ten days notice was giv
en against Sheriff's for collecting money and fail
ing to pay over. A motion was made against a
Sheriff for an antecedent liability. It was ob
jected, that the act did Dot operate retrospective
ly. But this Court held the contrary, saving
that, "when an act takes away, from a citizen a
vetM riykt, its constitutionality may lie inquired
inlo; bit! when it alters the remedy or mode of
proceeding as to rights previously vested, it cer
tainly runs in a constitutional channel. The
act are beneficial and should Is; favorably con
strued. Oatcs vs. Dardenrl Murphy 501.
So a State Legislature may discharge a party
from imprisonment upon a judgmeut in a
civil action, without infringing the Constitution ;
for this is but a modification of the remedy,
Slorv on the Con, 2-51, Mason vs. Unite, lit
Wheaton, R.-370.
A Statute changing the rules of evidence may
be applied to pending suits. Coolv Con. L.
381.
So a statutory privilege is not a vested right,
as exemptions of persons or property from luxa
tion ; or exemptions of property from being seis
ed by attachment, or execution, Id. .'1S.3.
So Homesteads, or other property which arc
now exempt under the Constitution might Is.'
made liable by a subsequent Convention, Id. X.
If; therefore, the Homestead Law were not
ref nispecfl ve(Ss tsrms, vet, as thev are remedial.
beneficial laws, interfering- with no vented right
and area part of the fundamental, law Of the
land, they ought to be liberally construed in fa
vor of the person to be benefitted. But we think
they do not depend upon euMtruetiun. The plain
words are that they shall apply to, "any debt"
-all debts. And it is only by construction, and
we" think an erroneous construction, that thev
cart be restricted to any particular class of debtit
But really the Homestead and exemption
laws, although afiecting antecedent debts, are
not retrospective iu tlti proper sense of that
tcrnu What would lie a prospective Homestead
law ' Evidently thai which allow a Homestead
to be laid off hereafter. What, as contni-distin-guished
from that, would bo a retrospective
Homestead law?: Evidently that which makes
valid u homestead which Int. been luiil off ffreto-
fiire. Thegreaterror bin supposing that the Home i
1 ! , . , f II. .1,1 ,
steau law is a law to ueieai ueois. tiai is -no
part of the object of the law. The laying oil' a
Homestead is tbe sole object and is prospective
altogether. I ('any debt is affected bv it, it is
merely incidental. It may lie eo.icc.lid there
fore, without affecting the Homestead, that any
tew, thw purpose of which is to dell-il a debt, U
void. But the Homestead law declares its ob
ject upon its face to be, not to defeat debt, bttt,
to allow to every . resident of the State, "and his
children" and his "widow" a home and the
means of living, if they bave them. It is a
question, not ol defeating debts,. but, in the bm
guage of Chief Justice Taney, ' it is a question
of policy and humanity, which jii'etr xiviiized
community regulate
s tor itell.
ii- i-uoiii or loiiy, pi-:iivor injustice, a que-
tion for the law making power. 'and not lor the :
luri. in our ease, ine law nas uic sanction ol j
the Convention and of the Legislature, and of)
the uirvet vote or tne people m adopting the
Constitution, and ol the Congress of the Cruted
States which approved the Constitution. And,
as it L not in contravention of the CuMUitutiou
of the I'nitcd States, it would lie an assumption
ol extraordinary jsiwer ir us to declare it void
. Willi tbi nt.liiiv i . t t li... i. v . .. . . .t , , . iliiCit
lias homing to iki. ti im-y are wiltiui the p. .v.
er of the legislature then it is sufficient lor us
stitution, because the exemption is a provision
in the Constitution itself. The only question is,
whether it impairs the obligation of contracts,
under the Constitution of the United States.
J acob rs. Smallwond, 03, N. QR. This will be
certified, Ac. Judgment reversed.
KEADE, J.
DISSENTING OPINION DELIVERED BY
CHIEF JUSTICE PEARSON tfPON THE
CONSTITUTIONALITY GF THE HOME
STEAD LAW, IN THE CASE OF HILL
VS. KESLER.
The express prohibition of ex pott facto laws
is confined to en ininal offences, nut the broad
principle of justice on which it rests, extends as
well Ui civil right-, and it i- a settled rule of
cohst ruction, that a retrospective effect is never
io fie given to a law, unless the words used ad
mit of no other meaning, and -how bevond
j) uest ion. t hat post t ran saei i. ,us are within its
operation ; "general and vague words have nev
er been allow, d to have that effect. Broom's
l.n':il Maxiiie, 41. ..it
In our ease, the words in the Constitution are,
'-lull he exempt from wile under execution for
any debt." Very comprehensive, but at the
same lime very indefinite. The statu tea carry
ing out this t Irdi nance, adopt the same words
without explanation ; giving to them the mean
ing of "any diW' hen-after contracted, there is
no injustice, for icoplc will know who is to be
trusted, giving to them the meaning of any
debt, u well del. i- heretofore as debts hereafter
contracted, there is gros injltstice and a viola
tion, not only of the ordinary notions of hon
esty, but of a fixed principle of the common
law, reaffirmed by tttatute law, 1:1 Eli.; "all
gift or voluntary conveyances of his property
bv a debtor are void a against existing credi
tors," on the ground of fraud. I heisitate to
gives to these indefinite words a construction,
which imputes to the law makers a fraud of ex
isting creditors: of propertv, on the faith of
which he received credit, and of which he can
not, by law, make a voluntary conveyance to
another, Court aro to be governed, not by
what the I ; if. -man of a law is supposed to have
meant, but by what the words used mean, ac
cording to the settled role or construction.
This maxim should especially bo adhered to,
when the law is submitted to a vote of the peo
ple, for it is not decent to suppose that indefi
nite words were used that some might vote for
it, giving one meaning and others another.
II. "No State shall pass any law impairing
the obligation of contract." These compre
hensive words are not confined to a prohibi
tion against altering tbe terms of a contract;
but also forbid, impairing its iMm'i'ui. What
t r the obligation-of it contract? Tbe means of
. -.impelling parforBiain-e, acMirdiug to (lie laws
ui liurce, al the time. the. contract Ls mode: by
those laws the uir;ie agree to abide; by these
laws their rights are fixed. This is llieobfigalion
which must not be impaired by a State, wheth
er acting in Convention or in General Assem
bly. We arc told "There are now, and so there
w ill continue to lie, laws to ehable each party to
enforce the contract, and after such aswuranee,
if the State ulsilisli or injuriously change the
remedv, it would lie violative of the Constitu
tion of the L. S. therefore void."
In this I fully concur, and the question is, not
confusing the sulijeet with a multitude of cases,
or with many word, disss or doe not the
"Homestead Exemption" of $500 personal
proTtv and .-0IN) value of land, injuriously
change the remedy and alter the laws iu force
at the time the contract was made ? In other
words, is not the obtigatftm of this contract iin
paired bv the Homestead Exemption?
It is set out in the record, that beside- the
propenv exempted, mi oemor lias notion ; so
the contract cannot lie enforced and its obliga
lion Ls dtxtrtiyrd, not simply impaired.
It is said, "the remedy is not at all changed.
for the creditor can take judgment and issue a
writ of fieri facia, just as he could have dime
when the contract was made." All this is very
true, and it is equally true that in nine cases out
of ten the Sheriff will return on fhe fieri fitcia
nothing toiind, exivpt property exempted by
homestead law. this is the shadow, but
the substance. Tile creditor trusted to the prop
ertv winch the debtor had at the tune ol the
contract, a the means of enforcing it, and to
the law by which a voluntary conveyance is -de
clared fraudulent and void;' that was the obli
gation ; the thing that binds. And yet it is
held, as I think, under the unconscious bias of
pressing cimimstancc. "that a law which be
stow tliis property on the debtor, to the injury
of exiting creditors, doe uot impair the obliga
tion of contract'."
It was urged on the argument ; By the com
mon law, wearing apparel, arms for muster,
tools of a tradesman, and a lied and furniture,
are exempted, (these article were not looked
to and were included in the obligation) then by
statute, certain other articles, i, e. Bible, Hymn
Iteok and . l I l.o. .k-. and hmdiy a horse,
not to exceed, in all, the value of $200, wereex
etnpicd. Now, because creditor did not choose
to make a point alsiut thec small matters, that
is relied on, as fixing the (lower of the General
Assembly to make exemptions against existing
debt, and the power Jieing thus established, the
extent of its exercise is a matter uf legislative
discretion : "give an inch and take an ell."
First, assume the power Ur exempt a bible,
hymn lMik, and school books -then a horse,
may lie 'added, then $200 worth of propertv,
then $-iO0 then $l'i00, including land, then
5,000, and then exempt everything, for there is
noilimit save legislative discretion. Indeed the
statute under consideration 1 believe exempts
everything owned by debtors in nine cases out
ot ten.
In- reply to theargument drawn from legisla
tive sanction, one fact oomiterbafaiiees the
whole. In 1822 the Legislature deemed U wise
to modify the Liw of imprisonment for debt, as
an obligation of contract; after full discussion
the act provide, "any H.-rson arrested under a
MuMon n-f n-ttiufnricnduin tiir ally debt, contracted
after the M. day of JAy n-jct, may give bond to
appear," and shaliwit be confined in jail, as be
fore. 1
I am aware, that in several of the States, de
cisions have lieen made, sustainiug ltomewtcad
laws. These cases all rest on the fallacy of as
suming the power to make exemption to some
extent and then on the ' idea of legislative dis
cretion, the amount is swelled up to thousand ;
and if is justified, on the ground of "keeping
jiaJe with the progress of the age, a progress,
iu this particular. I fear of dLslnmcstv and fraud,
I choose to rely on the eases hi our own ixiurt.
Jones vs. Crittenden 1 Car Lw Rep. 385.
Jtarnes vs. Karnes 8, Jones .ttib.
SUPREME COlRT.
IN THE CASE t)F THE
RAILROAD (XIMPAXY VK W
l . Hf L-!
DEN-4SPINION
BY CHIEF JUSTICE j
L'KVR-SOX-BOXDS FOR BUILDING
XEW lUil.tttUIW DECLARED UK-
oiNrsTrruTioraL,
Maudamus dismissed. Power of taxation
discussed. Heldthat the equation in Art.
-1. Sec 5. does not apply to the ld dchr,
to debts ooutrsoted in aid of unfinished
roads. No power to build new roads with
out submitting the question to the people.
No limit to power of Counties to levy tax
es for necessary expenses, designated in
Art. 7, Sec 3, provided they obtain speei -al
law of the General Assembly, and the
need uot be submitted to a rote of the
people.
OPINION OF 001 BP JUSTICE PEARSON.
I. I incline to the opinion that the act en
titled "An act to incorporate the University
Railroad Company," does not have, in law.
the effect to create a corporation. To give
legal effect to a grant, there must be a grau
tor, a grantee, and a thing granted. Here
we have a grantor, the General Aasetnhly ;
a thing granted, corporate powers and fran
chises "to the same extent as are possessed
by the Jfarih Caroliua Railroad Company;"
but ther Is no grantee no person, persons,
or body politic to whom the grant is made.
If this be so. it would seem to follow, that
the directors who are to manage affairs of
said I niveisitv Railmad Company ;' (there
being in contemplation of law, uo company)
cannot have such rights as are enforced by
the writ of mandamus.
II. Iu my opinion, by the proper con
struction of art. 5, sec. 5, of the Constitu
tion, the General Assembly has so power to
contract a debt to build a MewRailroad, un
less the subject be submitted to s vote of the
people. It is decided fGsllowayrs. Jenkins,
"i.'t. N. C. rep , 147 the General Assembly
has no power to contract a debt, without a
vote of the people, to aid in tbe construction
of a i.ew railroad. IT the Central Assem
bly has no power to contract a debt, for the
purpose of building a new railroad, with
the assistance of contributions bv individu
als, county subscritious, aud subscriptions
by other railroads, it would seem it sannot
have power to contract a debt, for the pur
pose of making a new railroad out and out.
A prohibition not to contract a lesser, sure
ly amounts to n prohibiton not to contract
a greater debt for the same object. The
evil which the Constitution seeks to prevent,
is not that of giving aid to individuals or
corporations in the construction of railroads ;
but the evil is, that of contracting new debts
on the part of the State, the txisitiug debt
being almost two heavy to bear, aud tbe
credit of the State filtering under the load
A construction by which new debts may be
contracted on a larger scale than one ex
piessly prohibited, is not admissible upou
any principle of law. As this is a deduc
tion from Galloway rs. Jenkins, in which
the Court was divided, I will put my con
clusion, also, on the construction of all the
provisions of Article 5.
III. The act under consideration is in
violation of the Constitution iu this : the tax
1 'vied by it disturbs the proportion which,
by the Constitution, capjtut;on tax must bear
to the tax on the value of property, to wit
'I'ln tax on a poll shall be equal to the tax
on three hundred dollars trorth of property.'
Here we have the proportion. Then follows
n provision : "The State and count v taxes
combined, snail never exceed rwo aouars on
the head," and the necessary effect is, that
the State aud county tax ou tbe value of
pro i n rtv shall never exceed two dollars on
three hundred utlars worth of property
and the effect also is, that if the tax on poll
is less than two dollars, then the tax on three
hundred dollars worth of property must be
less iu the same ratio. In other words, the
tt'.x on the poll is the standard" by which
the tax on property is to be levied.
Under two dollars, the power to levy a poll
tax forStnte aurposes is unlimited: (As in
terest needed no protection, for it has a full
representation iu the General Assembly
Counties are protected by Sec. 7, which
provides "taxes levied for oouuty purposes
shall be levied iu like manner with the State
taxes, aud shall never exceed double of the
State tax. except for a Special purpose aud
with the special approval of the General
Assembly.
Cities, to urns and townships are protected,
Art. 7, Sec. 7, which provides, "no debt
shall be contracted, uor shall any tax be
levied except for necessary expenses, unless
by a voteot a majority ot the qualified voters
therein."
The only remaining interest is that of
property: holders in rospeot to State and coun
ty taxes. 1 his interest is protected by the
equal ion fixed between capitation tax and tax
on property. A statute which disturbs this
equal ion breaks dowu the safeguard thrown
around property by the Cuustitution. If it
can be dune to the extent of one hundredth
of one per ceut.. it ma, be doue to tbe ex
tent of one tenth, and there is no limit
It was urged on the argument, this equa
tion applies only to taxes levied for current
expenses of the State and counties, and has
no reference to taxation, necessary to pay
fhe interest of the public debt, or the tax to
be levied to pay the interest ot any new
debt.
1st. I agree that, if, tinder this equation
carried to its limit, the amount is not enough
to meet current expenses, and also to pay
the interest on the public debt, then for the
excess neede I it is uot only within the pow
er, but it is the duty ot the General Assem
bly to disregard the equation ; for this pro
tection to property must be takan to be sub
ject to the injunction, "to maintain the hon
or and good faith of the State untarnished
in regard to the public debt," Ad - 1 .
ii. i aud by sec. 4 of the article uitdex con
sideration, it is ordaiued, "The , General As
sembly shall, by appropriate legislation and
adequate taxation, provide for the payment
of the interest on the public debt, and after
I SS0 it shall lay a specific annual tax, as a
sinking fund, to discharge the principal."
I do not adopt the extreme1 -'ptttitAin taken
by Mr. Haywood, tliat by a specific tax is
meant a tax on laud by the acre Or on horses
aud cattle by the head. It is euough to ad
mit, that this tax is to be independent of the
equation: as in sec. 7 a tax for special coun
ty purisises. with the special approval of
the tenerai Asseiunij, may ue ieviei wisa
out refereiiee fo t e equation
o Tin! T .1. i...f a i.rul t,. 1 1... i,r.j i t i on ilia.
thn tar i lin-d bv sec 5. to be levied to oav
interest ou u any new d-Ut. - is not sub-
ject to the equation : and that the power to
tax property in reference to new aeots is un-
1 1 .1 it,. I ui'ii Kv I hi. ,1 i u.riit I. ,n of tit. . t ! mii aru t
Assembly, There is nothing, as we hnve r
seen is the case in regard to taxation to
meet the interest and principal of the exist
ing debt, to take this taxation out ot the
equation. Its being called a preid tax
eanuot have that effect ; for H0 8 require
that every act shall state the special object
to which the tax is to be applied. On the
contrary, it is Included in the equation by
every rule of construction.
This fixed equation between poll tax sod
and property tax, gives significance to the
proviso in the first clause, section 5. No
new debt shall be eontracted'in behalf the
State, unless in the same a special tax is
levied to pay the interest annually.
If the purpose was simply to keep op the
price of State bonds, this would amount to
but little such a tax is very easily put iu
a bill but consider the purpose to. be to re
strain the power of taxation in regard to
property by reference to the equation before
fixed, so that the special tax on property
cannot be levied, without making correspon
ding increase in the capitation tax, and this
proviso amounts to a very important prac
tical limitation, on the power to tax proper
ty, and must have a very deeted effect la
checking a disposition to contract new debts.
And the- exception in regard Jo "supply
ing a casual deficit,' and for "suppressing
insurrection or invasion," iu which eases the
equation may be disregarded, sjieaks volumes
and shows that more was intended, in re
miring a tax to he levied in the same bill.
than simply to put the draftsman to the tssk
of adding a clause to the bill. It is our"JW
exigencies that this safeguard to property is
not to be observed.
Except out of tbe operation of section 1 .
th-taxation that may be "appropriate and
adequate" to meet the interest and principal
of the existing debt ; except also out of its
operation the taxation necessary to meet the
iuteresi and principal of such new debts aa
shall be contracted in behalf of the State,
and the effect anil be to emasculate the sec
tion and fritter it away to nothing. Only cur
rent expenses are left, for it to operate ou ,
and these expenses may be. met hy the tax
ou trades, professions, franchises and in
comes sec. 3J which are not embraced by
the equation. So by the construction con
tended for, this supposed protection to prop
erty holders, is made void and illusorr, aud
after all amounts to nothing.
On the argument, it was also urged : the
bill levying this tax on proporty, to pay the
interest of the debt to be coatracted for tbe
University Railroad, was passed several days
before the bill railed "the Revenue Act."
which fixes the capitation tax at 1. 05 cents ou
the head, and the property tax at 35 cents on
the $100 worth, observing the equation of
taxation; and if this equation mast We ad
hered to, the effect will be. either to nullify
all the taxation of the session, or to displace
pro tanto a part of the tax on property iu
I he revenue bill, in order to make room for
thetaxoutLe University bill "prior est in
tempore," ice.
I do not concur in either of the conclu
sions. All of the bills, of the same session,
are to be taken together. The revenue bill
being in exact accordance with the Constitu
tion, must take effect, and it specially ap
propriates the amouut to be raised under it.
to the annual expenses of the State govern
ment, and to the paymeut of the interest of
the publg debt. Co the scope of the legis
lation is : If the General Assembly has
power to lay a tax to pay the interest on the
debt for the University R. R. without being
limited by the equation, then the tax is to be
levied. Otherwise it, will fail as being levied
ultra vires, and the General Assembly as
sumes an uulimited power of taxation.
Several cased were supposed in the argu
ment, but they all involved the fallacy, that
the General Assembly and County Commis
sioners have an independent power to tax
p
roperty to the exteut of 66f cents on the
$100 value, whereas, there is nosuchpow
er, and the right to tax property depends on
the capitation tax. Roth must be exercised
jointly, iu order to preserve equation of
taxation.
Order in the court below reversed and
mandamus dismissed.
PEARSON, C. J.
SUECIAL jNOTICE.
RELIEF kok the SORELY AFFICTED
It was the misfortuue of the undersigned
to have suffered, as few have every suffered
before, for six long and gloomy years, from
an affection of his feet aud legs, suiierinduced
by overwork, during the first year of the late
war. During all that time, he was -compell
ed to drag his emsated frame about, on
crutches. Iu vain he invoked the best med
ical talent of the country ; and visited the
most celebrated medicinal Springs. Worn
down and exhausted, he gave up all hope of
recovery. At this stage of his case, having
beeu governed by his medical friends from
the beffinnine, he determined to adopt a
method of treatment, the result of his owu
reflection- R is enough to say. that this
method is uot so much new, as it is, the more
skillful application of what has been long
known, and attempted by the Physiciaus.
After tome weeks of the most unwearied
and persevering efforts, he w as rewarded with
the most gratifying results. Indeed, his rap
id iuiproveincut aud recovery, was almost
magical so much so. that iu looking back
upon his couditiuu.a year ago, fie can, even,
uow, hardly realize the truly wonderful im
provement. 1
Profoundly grateful for this extraordinary
blessing, he is desirous of being the means
of diffusing similar benefits to those who
may be similarly afflicted. He therefore,
proposes uot only to treat, but CURE, all .
maimer of diseases Of the lower extremities,
such as old and ill-conditioned Ulcers of the
legs ; Varicose Veins ; weak aud enlarged
Joints, ice, no matter of how long standing.
It Is bue of the great advantages of hta
mode of treatment, that no restrictions ar
imposed ou the patient, as regards diet, exer
cise, Arc, and for the most part, little or uo
medicine is used.
.The charges shall be iu accord an rd with
the (O'liet alJepressioti of the times ; anil those,
really indigent, will be treated "without mon
ey aud without price."
Feb. 12 tf Salisbury, S. 0.
lit'XCilK'll'rt LU
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lAiUf live ito allien, : - o.u
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