BREWER V. OTOE COUNTY.

the county to take up the orders or warrants outstanding against it, and to give in the stead thereof its bonds, does it, in any way, affect the essence of the contract, existing between the county and the warrant holder, to the injury of the latter?

We claim that this act is a limitation law, because in section 5 it provides that payment of all Otoe county warrants or orders which were issued prior to January 1, 1864, and which were not presented and funded, or bonded, in accordance with its provisions prior to the first day of December, 1865, should be forever barred.

This section does just what all limitation acts do. It fixes the time in which payment of the debts in question may be enforced, and beyond which the same shall not be enforced by the courts. In other words it fixes the time in which parties interested may seek and obtain a remedy, and beyond which the remedy will be denied.

But it is claimed that the words "and such warrants shall, after the said first day of December, A. D. 1865, be null and void," in said section 6, render the entire act void. If the section had read that "all the warrants, &c., issued prior to January 1, 1864, and which was not presented, funded or bonded prior to the first day of December, 1865, shall, after the first day of December, A. D. 1865, be null and void," there might be some force in the objection. But such is not the section under consideration.

As has already been shown, this section, down to the word "barred," is simply a limitation of the time in which the warrant holder could have enforced payment of his warrants, and then it proceeds with the words "and such warrants shall, after the said first day of December, A. D. 1865, be null and void," which words, if they mean anything in the construing of this statute, means that after said first day of December, 1865, the remedy of the warrant holder shall be denied, if he seek to enforce payment. To

BREWER V. OTOE COUNTY.

give these words the meaning, force and effect claimed for them by plaintiff, would be to destroy the whole object and purpose of the act, which manifestly was to provide for the payment of the outstanding warrants of the county, by a given time named therein with interest on them.

Indeed, we think no violence would be done to the intention of the legislature if these words were considered to be surplusage.

The legislature may and can regulate and modify the remedy on contracts, may shorten or change the statute of limitation, without impairing the obligation of the contract.-Sturges v. Crowningshield, 4 Wheat. 122; Bronson v. Kinzie, 1 How. 311; McCracken v. Haywood, 2 How. 608; State of Alabama v. Dalton, 9 How. 522; Bronson v. Newberry, 2 Doug. (Mich.) 38; Rockwell v. Hubbell, 2 Doug. (Mich.) 197; Tarpley v. Hamer, 9 Smedes & Marsh, 310; Bruce v. Skuyler, 4 Gilman, 221; Ruggles v. Keeler, 3 Johns. 263; King v. Dedham, 15 Muss. 447; Holbrook v. Finney, 4 Mass. 566; Call v. Hagger, 8 Mass. 430. To the same point see Smith's Commentaries on Constitutional Law, sec. 254, 265 and authorities cited in ref. "A.”—Story on the Constitution, sec. 1383.

Municipal corporations are subject to the operation of statutes of limitation in the same manner and to the same extent as natural persons.—McKinney v. McKinney, 8 Ohio,

594.

The legislature may change (the character of) the security by the substitution of one more beneficial.-Holbrook v. Finney, 4 Mass. 566; Miller v. Miller, 16 Mass. 59; Burghardt v. Turner, 12 Pick. 534.

The State legislature may impair a contract itself, but cannot impair the obligations of the contract.—Ogden v. Saunders, 12 Wheat. 213.

If to this it is objected that the act bars the warrants,

BREWER v. OTOE COUNTY.

we reply that it bars them only as a statute of limitations bars them. And of this above.

I. N. Shambaugh, for defendant in error.

The defendant in error insists that no errors were committed by the court below in this cause, and relies upon the following points and authorities :

I. The plaintiff's amended demurrer to the defendant's answer was properly sustained by the court below. The answer sets up no legal or equitable defence.

II. The act of the legislature of the Territory of Nebraska relied on by the defendant below, was passed in violation of the 10th section of the 1st article of the Constitution of the United States, and is null and void.-1 Kent's Com. 449, 456 and note 1, 457, 461, 462 and note B, 463, 464; 6 Cranch, 87; 7 Cranch, 164; 9 Crunch, 43; 4 Wheat. 518; 8 Wheat. 1; 4 Wheat. 122. Smith on Constitutional Law, 248-259.-18 Curtis, 358; 10 How. 190.

III. The act of the legislature of Nebraska impairs the obligation of the contract. The county warrants were made, by a prior act of the legislature, a legal tender in payment of taxes. The act of February 10, 1865, was passed after the warrants were issued and required the holder to surrender his warrants and receive bonds, payable in eight years, and such bonds are not receivable in payment of taxes.-18 Curtis, 358.

IV. The statute of limitations does not apply to this case. County warrants are not embraced in the provisions of that statute. A county warrant is in the nature of a domestic judgment, and is not barred by the statute. The statute does not run in favor of a county against a judgment rendered by the board of county commissioners, and a warrant issued by the county in its corporate capacity.

LAKE, J.

BREWER v. OTOE COUNTY,

The defendant in error brought his action in the court below, to recover a judgment upon several warrants drawn by the county commissioners of Otoe county upon its treasurer, at various times between the 24th day of September, 1858, and the 5th day of January, 1863. To the petition the county filed a general demurrer which was overruled, but no exception taken thereto. Thereupon an answer was filed admitting the drawing of the warrants, but denying the liability of the county, for the reason that they were all rendered null and void by the provisions of the act of the late Territorial legislature, entitled “An act to provide for the funding of the warrants of Otoe county, approved February 10, 1865."

To all except the first three causes of action there was interposed the further defence of the statute of limitations, viz: that they did not accrue to the plaintiff within five years next before the commencement of the suit.

To the answer, Brewer filed a general demurrer which was sustained, and judgment thereupon rendered in his favor for the amount due on the several warrants sued on, to which ruling and judgment the defendant excepted.

Two errors are relied on to reverse this judgment.

1. That the court erred in sustaining the demurrer to the answer, and

2. In rendering judgment for the plaintiff when it should have been in favor of the defendant.

The questions presented are very important, involving as they do the constitutionality of the act of the legislature before referred to.

It is unnecessary here to decide whether the legislature, in an act authorizing a county to fund its indebtedness, cau require the holders of its warrants, which are due, to sur render them and receive in lieu thereof its bonds payable several years thereafter. That the legislature is invested with any such power may well be doubted. But the act

BREWER V. OTOE COUNTY.

before us does not stop here. It, in direct terms, provides that these warrants, which by the law of the land in force when they were drawn, bore interest at the rate of ten per cent per annum shall be exchanged, without the consent of the owner, for bonds payable on the first day of January, 1873, with interest at the rate of seven per cent per annum.

The effect of this would be to set aside and wholly annul a solemn contract which the county had made with one who had given it credit, and without his knowledge or assent to substitute another not only radically different in its terms but greatly to his prejudice.

Section 2 of the act provides that no bond shall be issued for a less sum than twenty-five dollars, so that the holder of a warrant for less than that amount would not have been entitled to a bond therefor, and yet by the sixth section of the act it is provided that "all warrants issued prior to January 1, 1864, which are not presented and bonded prior to December 1, 1865, shall be forever barred."

I must confess that if all this may be done, I can see no limit to the exercise of arbitrary, despotic power by the legislature over personal contracts. I cannot give my assent to so dangerous a proposition, and must deny its authority. I do not feel at liberty to concede to the legislature any such power, and am forced to the conclusion that the act in question violates one of the provisions of the tenth section of the first article of the Constitution of the United States, as well as the twelfth section of the first article of the Constitution of Nebraska, and therefore must be declared and held to be wholly inoperative as to these warrants and to furnish no defence to a recovery thereon.

The plaintiff, then, was under no legal obligations to present his warrants for bonding, nor is the county, by reason of his failure to do so, released from its obligation to receive them in payment of county taxes, or whenever the necessary funds are in the treasury to pay them on presentation, just