USA > Georgia > The Confederate records of the State of Georgia, Vol 4 > Part 27
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Should our people, in their present exhausted condi- tion, be called upon to pay this Federal tax in the course of the year, and another at or near its close, for the sup- port of the State Government, in the next political year, the burthen will fall heavily upon them. In our present financial condition, it is apparent that whatever relief, whether temporary or permanent, you may determine to give, must be accomplished by extension of the State's credit. Should you incline to extend relief in some form, and feel no other embarrassment than that resulting from the uncertain action of Congress, there are two alterna- tives, either of which would accomplish the object: First, you may authorize the Executive, in the event that the
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privilege be accorded to the State, to borrow, upon her bonds, a sufficient sum to pay her quota. If this course be adopted, it would be expedient, without loss of time, by resolution, to request a grant of the privilege to as- sume, and a suspension of the collection directly from the people, until the question be determined by Congress. Secondly, leaving the people to meet for themselves, this Federal tax, you may relieve them from the payment of any State tax during this year, for the uses of the next, and rely upon a loan to supply that deficit. The material difference between the two expedients would be that al- though upon either alternative, the people would be re- lieved from one tax, upon the second they would have to meet the payment before realizing the fruits of the year's labor. Very far from countenancing the general policy of resorting to the credit of the State, rather than to the pockets of the people, for the support of government, I yet feel that a state of things without parallel in the past, and, I trust, in the future, may justify its present adop- tion, without giving it the dangerous authority of prece- dent. That state of things is simply this : on one hand a people having their individual pecuniary resources tem- porarily exhausted by a protracted and deplorable war- on the other, a State, constituted of the same people, hav- ing large permanent resources, and very small indebted- ness, and therefore entitled to abundant credit. Under such circumstances, can it be said, that the use of that credit, for the relief of such a people, so suffering, would violate any principle of good government, or sound pol- icy ? I have felt it my duty to ask your consideration of the subject.
Until the year 1864, the Reporter of the Supreme
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GOVERNOR CHARLES J. JENKINS
Court was required to publish his Reports in bound vol- umes. By the Act of 21st of March in that year, he was required to publish them "in pamphlet form, instead of in bound volumes." There can be little doubt that this enactment was induced by the state of war, then existing, but it is not limited in its duration, and without legisla- tion, must continue to control that officer. In point of fact, the events of the war have unavoidably suspended all publication, which is felt as a certain inconvenience. But the reputation of the able and efficient officer, en- trusted with that duty, gives ample guaranty that their publication will be speedily resumed and punctually main- tained. The dignity of that tribunal, as well as a wise economy, render proper a return to the former mode of publication. I seriously doubt, however, whether, at the present high prices of material and labor, bound volumes can be afforded, at prices fixed in better times. This matter requires legislation.
Respectfully submitted,
CHARLES J. JENKINS,
Governor.
FRIDAY, FEBRUARY 16th, 1866.
EXECUTIVE DEPARTMENT, MILLEDGEVILLE, GEORGIA, February 16th, 1866.
Ordered,
That Pleasant M. Compton of the county of Baldwin
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be, and he is hereby appointed agent of the State of Geor- gia to adjust and settle, between the State and Messrs. Divine, Jones and Lee, the joint account and interest of the Card Factory, and to make sale of such portion of the assets assigned to the State as may not be needed in the penitentiary, agreeable to a joint resolution of the General Assembly.
CHARLES J. JENKINS,
Governor.
MONDAY, FEBRUARY 19th, 1866.
EXECUTIVE DEPARTMENT,
MILLEDGEVILLE, GEORGIA, 19th February, 1866.
To the House of Representatives :
Having carefully considered a bill to be entitled an act to punish persons for inducing or attempting to in- duce laborers of this State to forfeit their contracts, and to abandon the interests of their employers, which origi- nated in your body, I am constrained to return it without approval. That there is a class of intermeddlers be- tween employers and employee, upon whom the penalties of this act might justly be imposed; whose interference- unauthorized by law-is prompted by selfish considera- tions, rather than friendly regard to the laborer, I en- tertain no doubt. Nor do I doubt that it was the sole de-
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sign of the General Assembly, by its enactment, to coun- teract the evil practices of these very wrong doers.
But my conviction is, that the application to the act, by courts and juries, of established rules of con- struction, would give to its operation a wider range- would produce a conflict between concurrent jurisdictions.
The intention, of course, is that the courts of the State shall enforce the provisions of the act. It must be borne in mind, however, that in our present anomalous condition, another power-the Government of the United States-has assumed the regulation of the entire subject of labor contracts between the more numerous class of laborers, and their employers. For that express pur- pose, a branch of service hitherto unknown to that Gov- ernment, has been added to one of its great Departments, which through the instrumentality of numerous commis- sioners and agents, exercises administrative functions in every county, and every neighborhood, of this State. To this organization, styled the Freedman's Bureau, is entrusted the revision of all labor contracts between per- . sons of color and citizens, with discretionary power to declare them valid or invalid. With the sanction of their Government they have established a rule that no contract . is binding upon the freedman unless approved by one of these agents.
It were bootless to enquire whether or not this system is acceptable to your constituents; nor yet whether or not it is well adapted to the end in view. Your constitu- ents had no voice in its establishment, can have none in its continuance or discontinuance. Enough for us to know, it exists-is pervading-is controlling. You will agree with me that the peace of society, and our progres-
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sive advancement towards our ancient, and better politi- cal status, both, demand the avoidance of conflict between Federal and State authorities. Any action which would tend to this result is wrong. The language of the bill neither excludes from its operation the officers and agents of this bureau, nor limits it to contracts approved by them. It embraces in its scope all contracts for labor, and all persons inducing or attempting to induce the abandonment of any such contract. 1
Yet, with contracts disapproved by the Bureau, its agents are instructed to interfere. I think enough has been said to prove that the bill, under consideration, would probably lead to a conflict of authorities, and I trust you will agree with me, that that is a sufficient objection to its passage.
Respectfully submitted,
CHARLES J. JENKINS, Governor.
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FRIDAY, FEBRUARY 23d, 1866.
EXECUTIVE DEPARTMENT, MILLEDGEVILLE, GEORGIA, February 23, 186₺
To the House of Representatives-
In compliance with a joint resolution of the General Assembly calling for a report from the Committee on
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GOVERNOR CHARLES J. JENKINS
State Finances, appointed by the recent convention, I herewith transmit to your body, in which it originated, the report of that committee this day received.
Accompanying the report is a communication ad- dressed to me stating their appointment of a Secretary, -his services, and compensation due to him; also ac- counts filed with the committee by persons summoned here as witnesses to testify concerning transactions of State officers or agents, of which they were supposed cognizant.
As the compensation of the Secretary and witnesses was not provided for by the convention, I respectfully refer the matter to the consideration of the General Assembly.
CHARLES J. JENKINS, Governor.
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MONDAY, MARCH 5th, 1866.
EXECUTIVE DEPARTMENT,
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MILLEDGEVILLE, GEORGIA, March 5, 1866.
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TO THE GENERAL ASSEMBLY-
I herewith communicate reports received from two counties, of the number of destitute soldiers, and widows of soldiers, etc., in those counties.
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In the message transmitted to you at the com- mencement of the session, I alluded to the destitution and sufferings of disabled soldiers, and their families, and of the families of deceased soldiers, as presenting strong claims upon our gratitude and our humanity.
Not knowing what action the General Assembly may propose to take on the subject, it is perhaps proper, that I should apprise you, that from information received from different quarters, and apparently reliable, I have reason to believe that before another crop can be gath- ered, the suffering among them, and other destitute per- sons, in counties which have been overrun by both armies, in the late war, will be most intense.
The liberality of citizens in those localities, who came out of the war with enough and to spare, has already been severely taxed to relieve such wants, and from it, little more can reasonably be expected.
The existing system for the relief of pauperism, is probably adequate to its necessities in ordinary times, and it is certainly bad policy to encourage among any people, a reliance upon government for a supply of the necessities of life. But the circumstances surrounding us at this time, are extraordinary-such as have never occurred before in our day, and we may hope will never occur again.
The question presents itself-how shall relief be given? To rely upon the raising of a tax in each county to meet the wants within its borders, would be liable to two objections. First, unless the collection of such a tax be accelerated much beyond the usual time, it will be too tardy to meet the exigency. Secondly, if it be so accel-
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GOVERNOR CHARLES J. JENKINS
erated, it will find those upon whom the burthen must fall, generally unprepared for it.
I am not aware of any other method than direct State aid. For the extension of this, the times are certainly very unpropitious. An empty treasury may be by some regarded a sufficient reason for withholding large chari- ties, however laudable. But it should be considered, that the State has a credit which these sufferers have not. This, and the further consideration that their sufferings are not the result of idleness or of vice, satisfy me that we should not hesitate to incur a debt additional to that contemplated for other purposes, in order to supply bread for a few months to the hungry and the helpless. The debt of the State is small-the increase you may direct for other objects will leave it still small, in comparison with her resources, and the addition of a few hundred thousand dollars, for such a purpose, will neither de- press her credit now, nor materially embarrass hier finances hereafter.
I recommend that you authorize the purchase of corn, in such manner and in such quantity, as you may deem advisable, at points where it is abundant, to be paid for by the negotiation of bonds, and provide for its judicious and faithful distribution. I trust the different railroad companies in the State, will, in aid of such a cause, lighten the State's burthen by favorable terms of trans- portation, to points of distribution, should you deter- mine to take such action. So far as concerns the West- ern and Atlantic Railroad, you have the power to set the example.
CHARLES J. JENKINS,
Governor.
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(Copy)
EXECUTIVE DEPARTMENT, MILLEDGEVILLE, GEORGIA,
March 5, 1866.
$50,000.00. Six months after date the State of Geor- gia will pay B. H. Warren, President of the National Bank of Augusta, Georgia, or bearer, fifty thousand dol- lars in National currency of the United States, with interest at the rate of ten per cent. per annum, value received.
This by authority of the ordinance of the Convention dated 3rd day of November, 1865.
In witness whereof I have hereunto set my hand and Seal of office on the day and year first above written.
CHARLES J. JENKINS,
1 · (Countersigned) Governor.
:
JOHN JONES, Treasurer.
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GOVERNOR CHARLES J. JENKINS
TUESDAY, MARCH 6th, 1866.
The following message was transmitted to the Senate, to-wit :
EXECUTIVE DEPARTMENT,
MILLEDGEVILLE, 6th March, 1866.
To THE SENATE-
Having given serious consideration to "a bill to be entitled an act for the relief of the people of Georgia, and to prevent the levy and sale of property, under cer- tain circumstances, and within a limited period," which originated in your body, with more than ordinary anxiety, if possible, to concur with the General Assembly, in the propriety of its enactment, I am constrained to return it without approval.
The Constitution of the United States, expressly ordains that "no State shall pass any law impairing the obligation of contracts."
The application of this provision to the act under consideration, involves two enquiries :
First, what is meant by the obligation of a contract ? Secondly, what constitutes an impairment of it?
A proper consideration of the subject requires a dis- tinction between a contract and its obligation. The former is "an agreement to do or not to do a particular thing." The latter is that which binds the promisor, to perform his agreement. We often speak of a moral obli- gation to perform a promise, the sanction of which is found in a pure and enlightened conscience. But it is
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evidently not this which the Constitution was designed to save from impairment, because it is simply impossible for legislative action to change the dictate of conscience regarding any antecedent duty, which one person may owe to another.
We speak also of the legal obligation of a contract, by which is meant the force of law, compelling its per- formance or giving an equivalent, after its breach. In arguing the case of Ogden vs. Saunders, Mr. Webster remarked "the municipal law is the force of society, employed to compel the performance of contracts." This force consists of all the means provided by law, to enable the promisee, without disturbing the peace of society, to compel the performance, by a reluctant promisor, of his engagement. Thus understood, it is clear that the Legis- lature, if unrestrained, would be capable of impairing or destroying the obligation ; and it is precisely to guard it, that this prohibition was inserted in the Constitution.
The question then is presented, whether or not this act, against the intendment of the Constitution, impairs the obligation of contracts. It provides "that there shall be no levy or sale of property of defendants in this State, under any execution, founded on any judgment, order or decree, of any Court, heretofore, or hereafter to be rend- ered, upon any contract or liability, made or incurred prior to the 1st June, 1865; provided, the said defendant shall pay, or cause to be paid, during each year, one- fourth of the amount of principal and interest of such execution, or of the debt or claim, on which such execu- tion has been, or may hereafter be, obtained, so that the entire indebtedness, shall be paid in four years from the first day of January, 1866, the first installment to be paid by the first January, 1867, and the fourth and last by
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GOVERNOR CHARLES J. JENKINS
the 1st January, 1870." Any officer levying, or selling, is made liable for a trespass. Here we remark that the prohibition of the Constitution is not directed solely against the destruction of the obligation. It is not, that no State shall pass any law destroying the obligation. Were it so expressed, however impolitic or unjust it might be, in any supposable case, to impair, without de- stroying it, the Constitution could not be interposed as
a barrier to such action. But it is explicitly against impairment that the prohibition is directed. The intention being negative, not positive-prohibitory, not manda- tory, the lessor interference is expected, because, being included in the greater, its prevention, prevents both. Hence it appears that something more was intended than to keep the obligation alive; which is all that can be claimed for a stay law.
Let it be borne in mind, that the obligation of a con- tract is the force of law, compelling its performance, or giving satisfaction for its breach. This force has a two- fold operation. First, it acts judicially, whereby the existence of the contract, its breach, and the mode of enforcement are determined, all of which are expressed in the judgment. Secondly, it acts ministerially, wherein, under command in writing, an officer of law, either trans- fers certain specific property from the possession of the promisor to that of the promisee, or converts into money, in a mode prescribed, such portion of the promisor's property as will satisfy the judgment, and delivers it to the promisee. This done, the obligation of the contract is consummated-its performance is enforced.
But if when the judgment shall have been rendered and the next step, according to the law which creates the obligation, is to issue this written authority, (called
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an execution), without which the judgment would be valueless, the State shall pass a law forbidding its issu- ance, for one year; or if, after it shall have been issued, the proper officer is forbidden to execute it, within a year, what effect has this litigation upon the obligation ? We are told the effect is to suspend it, leaving its vitality untouched. True, by the terms of the law, vitality re- mains, but does this satisfy the Constitution? Is there no diminution, no weakening, no impairment, of the force of law, compelling performance?
Lexicographers tell us that to impair is to "diminish, to weaken, to injure, to lessen in value." Suppose A to obtain a judgment against B, and C, to obtain another against D, at the same time, each founded on contract, and both, according to the general law, whence the obli- gation of contracts spring, capable of immediate execu- tion. Then suppose the legislature to intervene, and enact, that the former shall not be executed within one year, leaving the latter untouched, would there then be no difference in the relative strength of the two obligations ? A man in paralysis has vitality, as positive, as has he, in good health; yet it is impaired. So A's judgment has an obligation, but it is paralysed, "weakened," "dimin- ished," by the temporary loss of its active quality, and therefore, impaired. In executing contracts, time is always an important element. It will probably be con- ceded that it would be unconstitutional for the General Assembly to enact that no promissory notes heretofore made, and to mature, on the first day of January, 1867, shall be considered due, and payable, before the first . day of January, 1868. If this be so, it is difficult to per- ceive how the constitutionality of this Act can be main- tained. If the day of payment may not be postponed
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before maturity, by legislative action, it would seem, "a fortiori," that it may not be, after maturity; or rather, that the contract may not be thrown back into imma- turity, and a new day of payment appointed, by such action. Pursuing the line of argument, the right of the promisee, does not lose its character of contract, by the institution of a suit, nor by the rendition of a judgment to enforce it. That character abides and to it the Con- stitutional guaranty adheres, until it is either extin- guished by performance, or smothered, by a statute of repose. Indeed, this act specially refers to contract in judgment, and to their dates. Hence I conclude the Legislature has no more power to appoint a new and distant day of payment, after suit commenced, or judg- ment rendered, than before. In all other respects, the promisee's condition is considered better after judg- ment; why worse in this? Before judgment, his will is impotent to compel immediate performance of the con- tract. The judgment makes that will, the motive power of the obligation, for by it, the execution, the final pro- cess, may be put in action. But, by legislation of this character, that motive power is suspended-temporarily abstracted from the obligation. Perpetual injunction would destroy the obligation, puo ad, the action of this State; and I cannot resist the conclusion, that temporary injunction would impair it.
Again, the judgment and execution, which are intended to be the consummation, or end of the obligation, are lawful subjects of traffic, are salable commodities. It is indisputable that the possession and exercise by the Legislature of the power of suspending their operation, would "lessen their value," as such; and this brings such legislation within another definition of impairment, viz .:
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It "lessens the value." If one Legislature may postpone for a year, each subsequent one may do the same. Already have the judgments affected by this act, been suspended five years by such action. Upon principle, these succes- sive postponements might as well be continued an hun- dred years, or through all time. The hundredth would be as valid as any preceding one. But how, meantime, fares the obligation ? The consolation offered to the promisee, and repeated to successive generations of his posterity, would be, that it flourished, in a green old age, its strength unimpaired by time.
The strength of the argument in favor of stay laws, , lies in the proposition, that final process is but a part of the remedy, which must always be within the power of the Legislature; otherwise it would be impossible to correct errors in jurisprudence, or to improve the system as experience may develop its defects. The power of the Legislature to modify remedies, even at the cost of delay to suitors, then in court, must be conceded; but with two qualifications. First, the intention must be bona fide, to change permanently, and to improve the system. Secondly, this must always be done, if possible, so as not to affect injuriously antecedent rights. This act cannot be brought within either of them. First, it contemplates neither any improvement, nor any permanent change, of the judicial system. Sections 3553 to 3557, and section 336 of the Revised Code, regulate proceedings after judgment, in suits to enforce contracts. It is obviously not the intention of the General Assembly to make any change in these, further than to suspend them for a time, in the class of cases described in the act. No other course of proceeding is substituted-judgments rendered for special purposes, are excepted-and none, that may here-
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after be rendered, on contracts made since the first of June, 1865, are included in the stay. In such cases therefore the course of the law, will be the same as here- tofore. Secondly, if the change were permanent, if it contemplated just such a stay of execution, under judg- ments to be obtained, founded on contracts made since the first day of June last, the office of Sheriff is never- theless continued, and therefore all judgments, founded on contracts heretofore made, might be executed, as well as in times past, and the obligation of the contract be unaffected. But in point of fact the bill not only affects them, but injuriously discriminates against them.
Here, then, is plenary evidence that it is not one of those great reformatory measures designed to improve the judicial system, for the permanent advantage of the body politic, that in truth it makes no change in the sys- tem, but only withdraws for a time, from a certain class of contracts, its obligatory operation. It is a temporary expedient, interposed between the debtor and creditor, for the relief of the former. It postpones for one year absolutely, and for four years conditionally, the full per- formance of all contracts entered into before the first of June last, and in my opinion, as flagrantly violates the Constitution, as if it affected contracts running to maturity, by postponing the day of payment, one, or four years, beyond that fixed by the terms of each.
The course or reasoning adopted, the principles affirmed, and the rules of construction applied to this clause of the Constitution by the Supreme Court of the United States, in several cases, seem to me to lead to this conclusion, although in none of them were the Legis- lative acts reviewed, indentical in their provisions, with this. These I will simply state without quoting from
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