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107 U.S. 769
GREENHOW, Treasurer, etc.
March 5, 1883. [107 U.S. 769, 770] Wm. L. Royall, John F. Dillon, and Wager Swayne, for plaintiff in error.
F. S. Blair, Atty. Gen. of Va., for defendant in error.
WAITE, C. J.
On the thirtieth of March, 1971, the general assembly of Virginia passed an act to provide for the funding and payment of the public debt, by which two-thirds of the amount due on old bonds might be funded in new bonds, with interest coupons attached, 'receivable at and after maturity for all taxes, debts, dues, and demands due the state.' Under this act many bonds were put out with coupons which expressed on their face that they were receivable for taxes. On the seventh of March, 1872, however, the general assembly passed another act prohibiting the officers charged by law with the collection of taxes from receiving in payment anything else than gold and silver coin, United States treasury notes, and notes of the national banks, and repealing all other acts inconsistent therewith.
The supreme court of appeals of Virginia decided, at its November term, 1872, in the case of Antoni v. Wright, 22 Grat. 833, that in issuing these bonds the state entered into a valid contract with all persons taking the coupons to receive them in payment of taxes and state dues, and that the act of 1872, so far as it conflicted with this contract, was void. The authority of this case was recognized in Wise v. Rogers, 24 Grat. 169; and in Clarke v. Tyler, 30 Grat. 137, decided in 1878, it was said: 'This [107 U.S. 769, 771] decision of Antoni v. Wright ... must be held to be the settled law of this state.' The same questions were decided in the same way here at the October term, 1880, in Greenhow v. Hartman, 102 U.S. 672 , and are no longer open in this court. Any act of the state which forbids the receipt of these coupons for taxes is a violation of the contract, and void as against coupon holders.
At the time the act of 1871 was passed, and when the bonds and coupons were issued, the supreme court of appeals of the state had jurisdiction to grant writs of mandamus in all cases where mandamus would lie according to the principles of the common law, if necessary to prevent a failure of justice; and in Antoni v. Wright, ubi supra, it was decided that the writ of mandamus was the proper remedy to compel a collector to accept the coupons in question when offered in payment of taxes. The case of Wise v. Rogers presented the same question, and we understand it to have been the settled practice of that court to entertain suits for similar relief. The form and mode of proceeding were regulated by statute, which provided (Code Va. 1873, p. 1023, c. 151, 1) that when the return was made to a writ of mandamus it should state plainly and concisely the matter of law or fact relied on in opposition to the complaint; that the complainant might thereupon demur to the return, or plead thereto, or both, and that the defendant might reply, take issue on, or demur to the pleas of the complainant. The case was to be tried at the place where writs of error to the court were to be tried, (Code, p. 1051,) and after a verdict was found, or judgment rendered on demurrer or otherwise, for the person suing out the writ, he could recover his costs, with such damages as the jury might assess, and have forthwith a peremptory writ.
On the fourteenth of January, 1882, the general assembly passed another act, of which the following is a copy:
On the twentieth of March, 1882, Andrew Antoni, who owed the state taxes to the amount of $3.15, tendered the treasurer of the city of Richmond, the lawful tax-collector, a coupon, of the issue of 1871, for $3, 15, lawful money, in payment. This tender was refused, and Antoni, on the twenty-eighth of March, petitioned the supreme court of appeals for a mandamus to require its acceptance. The treasurer, on the thirtieth of March, for a return to an order to show cause, said he was ready to receive the coupon as soon as it had been legally ascertained to be genuine, and such as by law was actually receivable. To this return a demurrer was filed. Upon the hearing of the demurrer, the court being equally divided in opinion on the questions involved, 'in pursuance of an act of assembly in such case made and provided,' denied the writ. From a judgment to that effect this writ of error was brought.
The question we are now to consider is not whether, if the coupon tendered is in fact genuine and such as ought, under the contract, to be received, and the tender is kept good, the treasurer can proceed to collect the tax by distraint, or such other process as the law allows, without making himself personally responsible for any trespass he may commit, but whether the act of 1882 violates any implied obligation of the state in respect to the remedies that may be employed for the enforcement of its contract, if the collector refuses to take them.
It cannot be denied that, as a general rule, laws applicable to the case which are in force at the time and place of making a contract, enter into and form part of the contract itself, and 'that this embraces alike those laws which affect its validity, construction, discharge, and enforcement,' (Walker v. Whitehead, 16 Wall. 317,) but it is equally well settled that changes in the forms of action and modes of proceeding do not amount to an impairment of the obligations of a contract, if an adequate and efficacious remedy is left. This limitation upon the prohibitory clause of the constitution is respect to the [107 U.S. 769, 775] legislative power of the states over the obligation of contracts was suggested by Chief Justice MARSHALL in Sturges v. Crowningshield, 4 Wheat. 200, 207, and has been uniformly acted on since. Mason v. Haile, 12 Wheat. 378; Bronson v. Kinzie, 1 How. 316; Von Hoffman v. Quincy, 4 Wall. 553; Drehman v. Stifle, 8 Wall. 602; Gunn v. Barry, 15 Wall. 623; Walker v. Whitehead, 16 Wall. 318; Terry v. Anderson, 95 U.S. 633 ; Tennessee v. Sneed, 96 U.S. 69 ; Louisiana v. Pilsbury, 105 U.S. 301 .
As was very properly said by Mr. Justice SWAYNE in Von Hoffman v. Quincy, ubi supra, 'it is competent for the states to change the form of the remedy, or to modify it otherwise, as they may see fit, provided no substantial right secured by the contract is thereby impaired. No attempt has been made to fix definitely the line between alterations of the remedy, which are to be deemed legitimate, and those which, under the form of modifying the remedy, impair substantial rights. Every case must be determined upon its own circumstances. Whenever the result last mentioned is produced, the act is within the prohibition of the constitution, and to that extent void.' In all such cases the question becomes, therefore, one of reasonableness, and of that the legislature is primarily the judge. Jackson v. Lamphire, 3 Pet. 290; Terry v. Anderson, ubi supra. We ought never to overrule the decision of the legislative department of the government unless a palpable error has been committed. If a state of facts could exist that would justify the change in a remedy which has been made, we must presume it did exist, and that the law was passed on that account. Munn v. Illinois, 94 U.S. 132 . We have nothing to do with the motives of the legislature, if what they do is within the scope of their powers under the constition.
The right of the coupon holder is to have his coupon received for taxes when offered. The question here is not as to that right, but as to the remedy the holder has for its enforcement when denied. At the time the coupon was issued there was a remedy by mandamus from the supreme court of appeals to compel the tax-collector to take the coupon and cancel the tax. This implied a suit, with process, pleadings, issues, trial, and judgment. No restrictions were placed on the defenses the collector could make. He might raise such issues as he chose. [107 U.S. 769, 776] Without the aid of some restraining power, the mere pendency of the suit would not prevent the collector from proceeding according to law with the collection of the tax. He might, if he went on, subject himself to liability for damages, if the tender was one he ought to have accepted; but there was nothing to prevent his going on if he chose to take this risk.
Under this law the trial must be had in the supreme court of appeals, and at the time and place where that court was to be held for other purposes. There was nothing in the law to give these cases preference over others for trial. So far as we are informed, they stood as other cases before the court, and subject to such orders as should seem to be reasonable. The tax-collector could not be compelled to accept the coupon and discharge the tax until final judgment. If the final judgment was in favor of the holder, he recovered his costs and such damages as the jury might give him.
Under section 4 of the act of 1882, when a mandamus is asked for, the collector is required by law to return to the alternative writ or rule 'that he is ready to receive said coupons in payment of such taxes, ... as soon as they have been legally ascertained to be genuine, and the coupons which by law are actually receivable.' Upon such return the court must require the petitioner to pay his taxes, which being done the coupons are taken and forwarded to the county court of the county, or the hustings court of the city, where the taxes are payable, with directions to that court to frame an issue between the petitioner as plaintiff, and the commonwealth as defendant, as to whether the coupons so tendered are genuine coupons, legally receivable for taxes. Upon this issue proof of the genuineness and legality of the coupons must be made. Either party may take exceptions and carry the case, on appeal, to the circuit court and supreme court of appeals. If the decision is in favor of the petitioner a mandamus is to issue and the money he paid returned to him out of the first money in the treasury, in preference to all other claims.
The following changes are thus made in the old remedy: (1) The taxes actually due must be paid in money before the court can proceed, after the collector has signified in the proper way his willingness to receive the coupons, if they are genuine [107 U.S. 769, 777] and in law receivable; (2) the coupons must be filed in the court of appeals; and (3) they must be sent to the local court to have the fact of their genuineness and receivability determined, subject to an appeal to the circuit court and the supreme court of appeals. As the suit is for a mandamus, all the provisions of the general law regulating the practice, not inconsistent with the new law, remain, and if the petitioner succeeds in getting his peremptory writ he will recover his costs. No issues are required that it would not have been in the power of the collector to raise before the change was made, and there is no additional burden of proof imposed to meet the issues, so that the simple question is, whether the requirement of the advance of the taxes, and the change of the place and manner of trial, impair the obligation of the contract on the part of the state to furnish an adequate and effcacious remedy to compel a tax- collector to receive the coupons in payment of taxes, in case he will not do it without compulsion.
1. As to the payment of the taxes in advance. In this connection it must be borne in mind that the legislation, the validity of which is involved, relates alone to the collection of taxes levied under the authority of the state for the purposes of revenue. Promptness in the payment of taxes by the citizen is as important as promptness by the state in the discharge of its own obligations. In fact, ordinarily, the last cannot be done without the first. Hence, under the revenue system of the United States, the collection of the revenue in the manner prescribed by law cannot be restrained by judicial proceedings. The only remedy for an illegal exaction is payment under protest and suit to recover back the money paid. The reason is that as it is necessary the government should be able to calculate with certainty on its revenues, it is better that the individual should be required to pay what is demanded under the forms of law, and sue to recover back what he pays, than that the government should be embarrassed in its operations by a stay of collection.
It is to be noticed, also, that the law which authorized the issue of the bonds and coupons did not in express terms provide that the coupon holder should have the remedy of mandamus to compel the tax-collector to take his coupons. His claim to [107 U.S. 769, 778] relief in that way rests alone on the fact that when his coupon was issued mandamus was an existing form of action in the state, which the courts have decided was applicable to such a case. What the legislature has done is only to say that before this remedy can be resorted to the amount due for taxes shall be deposited in the treasury. That being done, the suit may go on. If in the suit it shall be determined that the coupons tendered are genuine, and in law receivable, the collector will be required to accept them, and the money will be restored. If, however, the judgment is against the coupon holder, the taxes will be paid, and the state will have suffered no inconvenience for want of its just revenues. Looking at the case, therefore, as one affecting the collection of the public revenue, we cannot see that the requirement of the advance of the taxes as a condition to the employment of the remedy is such an impairment of the contract as makes the requirement invalid.
2. As to the change in the place and mode of trial. We cannot think this of itself invalidates the law. So far as the change of place is concerned, it simply takes from the supreme court of appeals jurisdiction for the trial of the questions of fact, and confers precisely the same jurisdiction upon another court, with ample provision for appeal, so that in the end the authority of the court of appeals may be invoked on all matters of law. The courts on which the new jurisdiction is conferred are required by law to hold frequent terms, and the trial is to be had in the county where the taxes are to be paid. It is difficult to see how this impairs, in any manner, either the adequacy or the efficiency of the original remedy.
Then, as to the manner of the trial. The deposit of the coupons with the court of appeals, if the suit is to go on, cannot be considered unreasonable. If the trial had been conducted under the old law the coupons would have to be at some time surrendered, and the precise stage of the case in which this is to be done is by no means important, so far as the present question is concerned. Neither does the positive requirement of an issue as to the genuineness and receivability of the coupons and a trial by jury affect the validity of the law. Under the old law, this same issue might have been raised, and the same trial by jury required. It certainly is not an impairment [107 U.S. 769, 779] of an old remedy to make that imperative which before was discretionary.
Without pursuing the subject further, we say that, in our opinion, the fourth section of the act of 1882 does not impair the obligation of any contract which the state has made with the holders of its interest coupons.
After this suit was begun, but before it was tried, the general assembly of Virginia amended the section of the Code conferring jurisdiction on the supreme court of appeals in suits for mandamus, so that in now reads as follows:
It is somewhat difficult to see any substantial difference between the remedy given by these sections and that by section 4. There the 'form' of the suit is mandamus, begun while the coupons are in the hands of the tax-payer. After the suit has been begun, the court requires a delivery of the coupons into its own possession and the payment of the amount of the taxes into the treasury. This being done, the court sends the coupons to the appropriate tribunal for adjudication, and the proceedings thereafter are in all material respects like those provided for in the other sections. The judgment is also the same, except as to the merest matters of form. In both proceedings, the object is to require the collector to accept the coupons as payment of the tax, and deliver back the money that has been deposited for the same purpose in case the coupons are not in law receivable. The petition for mandamus, filed in the court of appeals, under section 4, is the exact equivalent of the petition [107 U.S. 769, 781] to be filed in the other courts, under sections 1, 2, and 3, to have the genuineness and the receivability of the coupons determined, and in both, the real matter submitted for determination is, whether the tax-payer is entitled to have back the money he has deposited to pay his taxes in case his coupons ought to have been received.
Mandamus, in this class of cases, is in the nature of a suit to obtain a specific performance of a contract. But in the present case the performance sought is the payment of money, and the remedy substituted is equivalent to a suit at law for its recovery, with ample provision for the satisfaction of any judgment that may be obtained; for it is made the ministerial duty of the treasurer to pay the amount of the recovery out of the first money in the treasury, and in preference to all other claims, as soon as the judgment is properly certified. The language of the act is, 'shall refund the money before then paid for his taxes by the tax-payer out of the first money in the treasury, in preference to all other claims.' Clearly this is an appropriation by law of money in the treasury, within the meaning of article 10, 10, of the constitution of Virginia, and the treasurer would be authorized to make the payment without further legislative action. It will be time enough to consider the effect of a repeal of this branch of the remedy when that shall be attempted.
The primary obligation of the state is for the payment of the coupons. All else is simply as a means to that end. It matters not whether the coupons have been refused for the taxes, if full payment of the amount they call for is actually made in money. A remedy, therefore, which is ample for the enforcement of the payment of the money is ample for all the purposes of the contract. That, we think, is given by the act of 1882 in both forms of proceeding.
Some objection is made to the first, second, and third sections because there is no provision for the recovery of costs. Without determining whether in point of fact costs can be recovered, it is sufficient to say that costs, eo nomine, were not recoverable at common law, and are usually regulated by statute. Certainly, it would not be claimed that the change of an ordinary statute, which provided a remedy for the enforcement [107 U.S. 769, 782] of contracts, so as to prevent the recovery of costs when they had been given before, would impair the obligation of contracts between individuals that were affected by what was done, and we see no reason why one rule, in this particular, should be applied to individuals and another to the state.
In conclusion, we repeat that the question presented by this record is not whether the tax-collector is bound in law to receive the coupon, notwithstanding legislation which, on its face, prohibits him from doing so, nor whether, if he refuses to take the coupon and proceeds with the collection of the tax by force, he can be made personally responsible in damages for what he does, but whether the obligation of the contract has been impaired by the changes which have been made in the remedies for its enforcement in case he refuses to accept the coupons. We dicide only the question which is actually before us. It is no doubt true that the commercial value of the bonds and coupons has been impaired by the hostile legislation of the state, but this impairement, in our opinion, comes, not from the change of remedies, but from the refusal to accept the coupons without suit. What we are called upon to consider in this case is, not the refusal to take the coupons, but the remedy after refusal.
We might have satisfied ourselves by a reference to the case of Tennessee v. Sneed, ubi supra, where the same general question was before us; but as we were asked to reconsider that case, we have done so with the same result, and, as we think, without in any manner departing from the long line of cases in which the principal involved has been recognized and applied.
Inasmuch as we are satisfied that a remedy is given by the act of 1882, substantially equivalent to that in force when the coupons were issued, we have not deemed it necessary to consider what would be the effect of a statute taking away all remedies. The judgment is affirmed.
I concur in the judgment of the court, but prefer to rest the decision upon a ground different from that on which it is placed in its opinion. [107 U.S. 769, 783] I agree that the state of Virginia, by the act of 1871, entered into a valid contract with the holders of its bonds to receive their coupons in payment of taxes; and that any subsequent statute which denies this right is a breach of its contract and a violation of the constitution of the United States.
But for a breach of its contract by a state, no remedy is provided by the constitution of the United States against the state itself; and a suit to compel the officers of a state to do the acts which constitute a performance of its contract by the state, is a suit against the state itself.
If the state furnishes a remedy by process against itself or its officers, that process may be pursued, because it has consented to submit itself to that extent to the jurisdiction of the courts; but if it chooses to withdraw its consent by a repeal of all remedies, it is restored to the immunity from suit, which belongs to it as a political community, responsible in that particular to no superior.
I adopt, as decisive of the present case, the language of the chief justice, in expressing the opinion of the court in the cases of the State v. Jumel and Elliott v. Wiltz, [post:]
I do not, therefore, consider it necessary to enter upon the inquiry, whether the remedy provided by the state of Virginia, by the act of 1882, is effective and substantial, compared with that which existed in 1871, when the bonds were issued. It is sufficient to say that it is the one which the state has chosen to give, and the only one, therefore, which the courts of the United States are authorized to administer. [107 U.S. 769, 784] BRADLEY and GRAY, JJ., concurred in the judgment upon both grounds: that stated in the opinion of the court as delivered by the chief justice, and that stated in the opinion of Mr. Justice MATTHEWS.
FIELD, J., dissenting.
I am not able to agree with the majority of the court in the judgment in this case, nor in the reasoning on which it is founded. The legislation of Virginia, which is sustained, appears to me to be in flagrant violation of the contract with her creditors under the act of March 30, 1871, commonly known as the funding act; and the doctrines advanced by the court, though not so intended, do, in fact, license any disregard of her obligations which the ill-advised policy of her legislators may suggest.
The plaintiff in error, the petitioner in the court below, is a citizen of Virginia and a resident of the city of Richmond. He owns property there, and on the twentieth of March, 1882, was indebted to the state for taxes to the amount of $3.15. At that time he was also the lawful holder of an overdue interest coupon for $3, which had been cut from a bond of the state, issued under the provisions of the funding act. This coupon is in the following words:
And on its face it thus declares: 'Receivable at and after maturity for all taxes, debts, and demands due the state.'
The receivability of such coupons for state taxes, debts, and demands was, as will hereafter be shown, the principal consideration for the surrender of former bonds of the state and the acceptance of a less number in their place. [107 U.S. 769, 785] The petitioner, in payment of his taxes, tendered the coupon he held and 15 cents in money to the treasurer of Richmond, who was charged by law with the duty of collecting taxes due to the state in that city, but he refused to receive them. Application was then made to the supreme court of appeals to compel their receipt. The treasurer set up in his answer that he was ready to receive the coupon in payment of the taxes as soon as it was ascertained to be genuine and legally receivable. This answer was founded upon the provisions of the act of January 14, 1882, entitled 'An act to punish frauds upon the commonwealth and the holders of her securities in the collection and disbursement of revenues.' Upon the validity of its provisions the judges of the court of appeals equally divided, and the application failed. The preamble of the act recites that bonds purporting to be those of the commonwealth, issued under the act of March 30, 1871, are in existence without authority of law; that other bonds are in existence, which are spurious, stolen, or forged, bearing coupons in the similitude of those which are genuine, and receivable for taxes, debts, and demands of the state; that coupons from such spurious, stolen, and forged bonds are received in payment of such taxes, debts, and demands; that coupons from genuine bonds, after having been thus received, are frequently reissued and received more than once in such payment; and that such frauds on the rights of the holders of the bonds impair the contract made by the commonwealth with them, and, therefore, for the alleged purpose of protecting the rights of the bondholders, and of enforcing the contract between them and the state, the act declares that whenever any tax-payer or his agent shall tender to a collector any papers or instruments in print purporting to be coupons detached from bonds of the commonwealth, issued under the act of 1871, to fund the public debt, the collector shall receive the same, and give the party tendering a receipt, stating that he has received them for the purpose of identification and verification; that he shall, at the same time, require such tax-payer to pay his taxes in coin, legal-tender notes, or national- bank bills, and if payment be refused, the taxes shall be collected as other delinquent taxes; that the collector shall mark each coupon thus received with [107 U.S. 769, 786] the initials of the tax-payer, and deliver them sealed up to the judge of the county court of the county, or hustings court of the city, in which the taxes are payable. It then provides that the tax-payer shall be at liberty to file his petition in said county court against the commonwealth; that a summons to answer the same shall be served on the commonwealth's attorney, who is to appear and defend the same; that in his petition the tax-payer must allege that he has tendered the coupons in payment of his taxes, and pray that a jury be impaneled 'to try whether they are genuine legal coupons, which are legally receivable for taxes, debts, and demands.' Upon this petition an issue is to be made on behalf of the commonwealth, which is to be tried by a jury, and either party is to have a right to exceptions on the trial, and to an appeal to the circuit court, and ultimately to the court of appeals. If it be finally decided in favor of the petitioner that the coupons are 'genuine legal coupons, receivable for taxes, and so forth,' then the judgment of the court is to be certified to the treasurer of the commonwealth, who, upon receipt thereof, shall receive the coupons for taxes and refund to the tax-payer the amount before paid by him out of the first money in the treasury, in preference to other claims.
The act also provides that whenever any tax-payer applies to a court for a mandamus to compel a collector of taxes to receive coupons for them, it shall be the duty of the collector to return that he is ready to receive, in payment of the taxes, the coupons as soon as they have been legally ascertained to be genuine, and by law actually receivable; and that, upon such return being made, the court shall require the petitioner to pay his taxes to the collector of the city or county, or to the treasurer of the commonwealth; and upon filing the receipt for the same, that the court shall direct the petitioner to file his coupons in court, which shall then forward the same to the county court of the county, or hustings court of the city, where the taxes are payable, and direct that court to frame an issue between the petitioner and the commonwealth as to whether the coupons thus tendered are genuine and legally receivable for taxes. On the trial either party is to be entitled to exceptions, and to an appeal to the circuit court and to the supreme [107 U.S. 769, 787] court of appeals. If the decision be finally in favor of the petitioner, he is to be entitled to a mandamus that the coupon be received for taxes; but inasmuch as those taxes have already been paid, they are to be refunded by the treasurer of the commonwealth out of the first money in the treasury in preference to all other claims. A subsequent act, passed on the seventh of April, 1882, amending a section of the Code of Virginia of 1873, prohibits the supreme court of appeals from issuing the writ of mandamus or any other summary process to compel the collecting officers of the state to receive anything in payment of taxes other than gold or silver, treasury notes of the United States, or bills of the national banks.
The question for decision here is as to the constitutionality of the act of January 14, 1882, which destroys the receivability of the coupon for taxes, allows a suit for the recovery of its amount only after they have been paid, and authorizes a recovery only when the jury have found that it is genuine and legally receivable for them, and of the act of April 7, 1882, which withdraws from the supreme court of appeals the power to compel the receivability of the coupon for taxes. In other words, do these acts impair the obligation of the contract upon which the coupons were originally issued?
A brief reference to the history of the funding act of 1871 will serve to place this subject in a clear light. Prior to the late war Virginia constructed various public works, and to enable her to do so she borrowed large sums of money, for which she issued her bonds, exceeding in amount $30,000,000. The interest on them was regularly paid up to the breaking out of the war. Afterwards its payment ceased, and until 1871, with the exception of some small sums remitted to London for foreign bondholders, or paid in Virginia in confederate money, and a small amount in 1866 and 1867, no part of the interest or principal was ever paid. In 1871 the principal of her debt, with its unpaid and overdue interest, amounted to over $45,000,000.
During the war the people of a portion of her territory separated from her, and formed a new state, by the name of West Virginia, which was admitted by congress into the Union. Nearly one-third of the territory of Virginia and one-third of [107 U.S. 769, 788] her people were thus with-drawn from her original limits and jurisdiction. Her then indebtedness was justly chargeable against her and the new state in some ratable proportion. The money raised by her bonds had been expended in improvements throughout the entire territory. All portions of it had participated in the benefits conferred by the expenditure of the moneys. It was but just, therefore, that the new state should assume and pay an equitable proportion of the debt. It is a well-settled doctrine of public law that upon a division of a state into two or more states, her debts shall be ratably apportioned among them. See authorities upon this subject in Hartman v. Greenhow, 102 U.S. 677 . In conformity with this doctrine West Virginia, in her first constitution, adopted in 1863, recognized her liability in this respect and declared that 'an equitable proportion of the public debt of the commonwealth of Virginia prior to the first day of January in the year 1861 shall be assumed by this state, and the legislature shall ascertain the same as soon as may be practicable, and provide for the liquidation thereof by a sinking fund sufficienr to pay the accruing interest, and redeem the principal within 34 years.' Constitution of 1863, art. 8, 8. She, however, did nothing up to 1871, to give effect to this unequivocal and solemn recognition of her liability, or to her positive injunction that the legislature should, as soon as practicable, ascertain the same and provide for its liquidation; and she has done nothing since.
The commonwealth of Virginia, nevertheless, undertook in that year to effect a settlement with her creditors, taking as a basis that inasmuch as one-third of her former territory and population was embraced in the new state, the latter should assume one-third of the debt and the commonwealth should settle for the remainder. Accordingly, her legislature, on the thirtieth of March, 1871, passed the funding act. It is entitled 'An act to provide for the funding and payment of the public debt.' Its preamble recites that in the ordinance authorizing the creation of the state of West Virginia, it was provided that she should take upon herself a just proportion of the public debt of the commonwealth of Virginia, prior to the first day of January, 1861, and that this provision has not been [107 U.S. 769, 789] fulfilled, although repeated and earnest efforts in that behalf have been made by Virginia, and that the people of the commonwealth are anxious for the prompt liquidation of her proportion of the debt, estimated at two- thirds of the same; and then declares that to enable the state of West Virginia to settle her proportion of said debt with the holders thereof, and to prevent any complications or difficulties which may be interposed to any other manner of settlement, and for the purpose of promptly restoring the credit of Virginia, by providing for the prompt and certain payment of the interest upon the just proportion of her debt as the same should become due, the legislature enacts that the owners of the bonds, stocks, or interest certificates of the state, with some exceptions, may fund two-thirds of the amount of the same, together with two-thirds of the interest due, or to become due thereon, up to July 1, 1871, in 6 per cent. coupon or registered bonds of the state, having 34 years to run, but redeemable at the pleasure of the state after 10 years, the bonds to be made payable to order or bearer, and the coupons to bearer. The act declares that the coupons shall be payable semi-annually, and 'be receivable at and after maturity for all taxes, dues, and demands due the state,' which shall be so expressed on their face, and that the bonds shall bear on their face a declaration to the effect that their redemption is secured by a sinking fund, provided for by the law under which they were issued. For the remaining one-third of the amount of the bonds thus funded the act provides that certificates shall be issued to the creditors, setting forth the amount, with the interest thereon, and that their payment shall be provided for in accordance with such settlement as may subsequently be made between the two states, and that Virginia will hold the bonds surrendered, so far as they are not funded, in trust for the holder or his assignees.
This act induced a large number of creditors to surrender their bonds, and take new bonds, with interest coupons annexed, for two-thirds of their amount, and certificates for the balance. The number of bonds surrendered amounted to about thirty millions of dollars, for which new bonds to the amount of twenty millions were issued. A contract was thus executed [107 U.S. 769, 790] between the state and the holders of the new coupons which the state could not afterwards impair. As this court, with only one dissenting member, said in Hartman v. Greenhow, with respect to this contract:
The supreme court of appeals of Virginia had previously spoken, with respect to this contract, with equal clearness. Notwithstanding the language of the act of March 30, 1871, declaring that the interest coupons of the new bonds shall be 'receivable at and after maturity for all taxes, debts, dues, and demands due the state,' and this is expressed upon their face, the legislature of Virginia, within less than a year afterwards, on March 7, 1872, passed an act declaring that it shall not be lawful for any officers charged with the collection of taxes or other demands of the state then due, or to become due, 'to receive in payment thereof anything else than gold or silver coin, United States treasury notes, or notes of the national banks.' As this act was in direct conflict with that of March 30, 1871, its validity was assailed, and came before the court of appeals in Antoni v. Wright, at the November term, 1872. 22 Grat. 833. In an opinion of great ability and learning, the character and effect of the funding act were elaborately considered; and it was held that its provisions constituted a contract founded upon valuable considerations and binding upon the state. By the decision of the state court in that case, and of this court in Hartman v. Greenhow, the receivability of the coupons for taxes and demands of the state was held to be an essential part of the contract on which the bonds were received, and to constitute the chief value of the coupon and the principal inducement offered for the surrender of the old bonds, and the acceptance of two-thirds of their amount. When the legislature [107 U.S. 769, 791] subsequently attempted to annul this receivability, and required coin or currency to be received for taxes, the court of appeals held that such interference with the receivability of the coupons impaired the obligation of the contract, and was void. When again the legislature attempted to impair that receivability by requiring the tax on the bond to which it originally belonged to be first deducted from the amount of the coupon before it could be received for other taxes, this court held that the legislation impaired the obligation of the contract. But now, strange to say, a law is sustained as not impairing the obligation of the contract, although it prohibits the receivability of the coupons for state taxes, dues, and demands, and requires the holder to pay them in soin, treasury notes, or bills of the national banks, and, in return, gives him the privilege only, upon surrendering it, to test its genuineness and its receivability for taxes by instituting a suit in which a jury is to be summoned, and any decision obtained may be taken to the circuit court and to the court of appeals. If final judgment shall be obtained that the coupon is genuine, and be legally receivable for taxes, the court is required to certify it to the treasurer of the commonwealth, who shall then receive the coupon for taxes,-that is to say, long after they are paid,-and refund its amount out of the first money in the treasury in preference to other claims. If there be no money in the treasury not otherwise appropriated, he may have to wait an indefinite period until the treasury is replenished. Not only does this act entail prolonged delay and expense in every case, but, in a majority of cases, the expense would exceed the amount of the coupon. Where only a few hundred dollars in bonds are held, the amount of the coupons would not justify the expenditure. Coupons for small amounts are thus rendered practically of no value. Their receivability for taxes, dues, and demands of the state is effectually destroyed.
Under the act of January 14, 1882, there is no equivalent given to the creditor for the receivability of the coupon for taxes. The right to enforce on demand payment of a particular claim essentially differs, both in availability and value, from a right to reduce the claim to judgment after protracted litigation, and particularly when, even after judgment, a further delay is [107 U.S. 769, 792] necessary to wait until there are funds in the treasury of the state to pay it.
It would excite surprise in any commercial community if a bank, whose bills purport on their face to be payable on demand, should declare that inasmuch as there were some forged notes upon it in circulation, therefore it would pay only such as the holder should judicially establish to be genuine. It has been decided that any unnecessary delay by a bank in examining its bills to determine their genuineness is equivalent to a refusal to redeem them. A bank resorting to such a flimsy pretext to evade payment would at once be pronounced insolvent, and be put into the hands of a receiver.
No weight is to be given to the recitals in the preamble of the act of January 14, 1882, as to outstanding forged bonds and coupons. In the first place, the state, by reciting that various frauds have been committed with respect to some of her securities, cannot legislate to impair the obligation of her contracts. In the second place, we are justified in considering that these recitals are without foundation in fact. According to the established doctrine of this country, the most which can be attributed to a recital of facts in the preamble of an act is that it was represented to the legislature that they existed. It is not the province of the legislature to find facts which shall affect the rights of others; that is the province of the judiciary. Says Cooley: 'A recital of facts in the preamble of a statute may, perhaps, be evidence when it relates to matters of a public nature, as that riots or disorders exist in a certain part of the country; but when the facts concern the rights of individuals, the legislature cannot adjudicate upon them.' Const. Lim. 96.
Says the court of appeals of Kentucky:
In the case from which this citation is made two acts were under consideration. The recital in the preamble of one was that a certain person was a naturalized citizen; the recital in the preamble of the other was of a letter of attorney and a conveyance by a third party; and the court said: 'Such a preamble is evidence that the facts were so represented to the legislature, and not that they are really true.' Although the language cited was used with reference to the preamble of a private statute, Sedgwick, in his Treatise on the Interpretation and Construction of Statutory and Constitutional Law, after quoting it, says: 'This reasoning applies with as much force to public as to private statutes; and the supreme court of New York has well said that the legislature has no jurisdiction to determine facts touching the rights of individuals.'
The weight usually accorded to a recital of matters of fact in the preamble of an act, that the facts were so represented to the legislature, cannot be allowed here; for the journals of the legislature of Virginia show that it had information when the act was passed that the very opposite of the recitals was true-that there were no forged or counterfeit bonds or coupons in existence, as therein stated. The journals may be referred to in order to show what was brought to the attention of the legislature, and those journals show that in 1880 the house of delegates of Virginia appointed a committee to examine the office of the second auditor, who is the custodian of all papers relating to the debt of the state, to ascertain whether there were any forged or counterfeit bonds or coupons among them; and the committee reported that they were unable to find a single forged or counterfeit bond or coupon; and of the millions of dollars in coupons which had been paid into the treasury since 1871, all were accounted for except coupons to the amount of $28,197. As it was the duty of the officer on receiving the coupons to cancel them, it must be presumed that these were properly canceled by him at the time. [107 U.S. 769, 794] Again, in answer to a resolution of the house of delegates, dated January 9, 1882, the second auditor reported that no counterfeit or forged obligations, bonds, coupons, or certificates of the state had in any way come to his knowledge. And in answer to a resolution of the senate of the sixteenth of January, 1882, the same auditor replied that he had no knowledge of any spurious or forged bonds or coupons issued or purporting to be issued under the funding act of March 30, 1871; and in an examination had into the matter, a clerk in the second auditor's office testified that he was familiar with the coupons issued under the act of March 30, 1871, and had handled about seven millions of them, and had never seen or heard of a counterfeit coupon. Another witness connected with the treasurer's office stated that he was familiar with the conduct and management of both the second auditor's office and of the treasurer's office, and that he had never heard of a duplicate or forged coupon.
In the third place, assuming that the $28,197 in coupons which could not be found in the auditor's office or accounted for had not been canceled, but had been mislaid, lost, or stolen, the holders of other coupons ought not to be deprived of their use because the officers of the auditor's department had been neglectful of their duties. Assuming, also, against the fact that there were forged and spurious coupons of the state, their existence did not warrant a rejection of such as are genuine. Although no officer questions their genuineness when tendered, the holder of them must make up an issue with the state to try the fact before a jury. The act was evidently designed to accomplish much more than the protection of the holders of genuine coupons. As justly said by one of the judges of the court of appeals:
The clause of the constitution which declares that no state shall pass any law impairing the obligation of contracts, prohibits legislation thus affecting contracts between the state and individuals equally as it does contracts between individuals. Indeed, the greater number of cases, in which the protection of the constitutional provision has been invoked against subsequent legislative impairment of contracts, has been of those in which the state was one of the contracting parties. Where a state enters the markets of the world and becomes a borrower, she lays aside her sovereignty and takes upon herself the position of an ordinary civil corporation, or of an individual, and is bound accordingly. Davis v. Gray, 16 Wall. 232; Murray v. Charleston, 96 U.S. 445 ; Hall v. Wisconsin, 103 U.S. 11 .
What, then, was the obligation of the contract entered into between Virginia and her creditors under the funding act of 1871, so far as the interest coupons are concerned? The contract is that she will pay the amount of the coupon, and that it shall, at and after maturity, be receivable for taxes, dues, and demands of the state. And by its receivability is meant that it is to be taken by officers whom the state may authorize to receive money for its dues whenever tendered for them. By the obligation of a contract is meant the means which the law affords for its execution; the means by which it could, at the time it was made, be enforced. As said by the court in McCracken v. Hayward:
To the same purport and still more emphatic is the language [107 U.S. 769, 796] of the court in Walker v. Whitehead, 16 Wall. 317:
In other words, to quote the language of Professor Pomeroy in his work on Constitutional Law,-
The receivability of the coupon, under the funding act of 1871, for taxes, dues, and demands, gave to it, as already said, its principal value. At that time there was provided, in the system of procedure of this state, a remedy for the specific execution of the contract, by which this receivability could be enforced. The legislation of January 14, and April 7, 1882, deprives the holder of the coupon of this remedy, and in lieu of it gives him the barren privilege, after paying the taxes, of suing [107 U.S. 769, 797] in a local court to test before a jury the genuineness of the coupon and its legal receivability for them, and, in case he establishes these facts, of having a judgment to that effect certified to the treasurer of the commonwealth, and the amount paid refunded out of money in the treasury, if there be any. To recover this judgment he must pay the cost of the proceeding, including the fees of witnesses and jurors, and of the clerk, sheriff, and other officers of the court. This is a most palpable and flagrant impairment of the obligation of the contract. No legislation more destructive of all value to the contract is conceivable, unless it should absolutely and in terms repudiate the coupon as a contract at all. It is practical repudiation.
In Bronson v. Kinzie, this court, speaking by Chief Justice TANEY, said:
In Planters' Bank v. Sharp this court said:
In Murray v. Charleston the court cited with approval the language of a previous decision to the effect that a law which alters the terms of a contract by imposing new conditions, or dispensing with those expressed, impairs its obligation; and added, speaking by Mr. Justice STRONG, who recently occupied a seat on this bench, that 'it is one of the highest duties of [107 U.S. 769, 798] this court to take care the prohibition (against the impairment of contracts) shall neither be evaded nor frittered away. Complete effect must be given to it in all its spirit.' 96 U.S. 448 .
In Edwards v. Kearney this court said, speaking by Mr. Justice SWAYNE, so lately one of our number:
Mr. Justice CLIFFORD, also lately sitting with us, in a concurring opinion in the same case, said:
And only two terms ago, in the case of Louisiana v. New Orleans, this court said, without a dissenting voice, that--
How can it be maintained, in the face of these decisions, that the legislation of January 14 and April 7, 1882, does not impair the obligation of the contract under the funding act? It annuls the present receivability of the coupon; it substitutes for the specific execution of the contract a protracted litigation; and when the genuineness of the coupon and its legal receivability for taxes are judicially established, its payment is made dependent upon the existence of money in the treasury of the state. If the language of the act declaring that when the genuineness of the coupon and its receivability for taxes are established, the taxes paid by its holder shall be refunded out of the first money in the treasury in preference to other claims, be deemed a sufficient appropriation to authorize the treasurer [107 U.S. 769, 799] to pay out the money, contrary to what has just been decided with respect to language much more expressive in the legislation of Louisiana, of what avail can it be to the owner of the coupon if the treasurer refuse to refund the amount? There is no mode, according to the opinion of the majority, of coercing his action. No mandamus can issue, for that remedy and all compulsory process have been abolished. Besides all this, as the coupons are mostly for small amounts, the costs of the suits to test their genuineness and receivability for taxes would be more than their value. Practically, the law destroys the coupons and it was evidently intended to have that effect.
There is nothing at all similar to this, as seems to be intimated by the opinion of the majority, in the revenue system of the United States, which forbids judicial proceedings to restrain the collection of a tax for its alleged invalidity, and only authorizes suit to recover back the money if paid under protest. Here the validity of the tax of Virginia is not assailed. The only question is, shall the officer of the state be required to receive in payment of the tax what she, by her contract, declared he should receive?
The case of Tennessee v. Sneed, 96 U.S. 69 , is cited as giving support to the decision in this case. I do not think that it gives it any support whatever. It does not sustain the doctrine that a state may abolish the right of mandamus to which a creditor at the time of the contract was entitled, as a mode of specifically enforcing it. The facts of the case are these: In 1838 the legislature of Tennessee passed a law, with respect to the bills and notes of the bank of Tennessee, declaring that 'the bills and notes of the said corporation, originally made payable, or which shall have become payable, on demand in gold or silver coin, shall be receivable at the treasury, and by all tax-collectors and other public officers, in all payments for taxes or other moneys due the state.'
The supreme court of the state decided that a proceeding by mandamus against an officer of the state to enforce the receipt of these bills for taxes was virtually a suit against the state, and could not be maintained prior to 1855, when an act was passed allowing suits to be brought against the state under [107 U.S. 769, 800] the same rules and regulations that govern actions between private parties. In 1865 this act was repealed. The creditor, when the contract was made, acquired, therefore, no right to the writ of mandamus, for it was not then an existing remedy, and so Mr. Justice HUNT, in delivering the opinion of the court, said: 'The question discussed by Mr. Justice SWAYNE in Walker v. Whitehead, 16 Wall. 314, of the preservation of the laws in existence at the time of the making of the contract, is not before us. The claim is of a subsequent injury to the contract.' And the court, after referring to the numerous cases of a change of remedies, says: 'The rule seems to be that in modes of proceeding and of forms to enforce the contract, the legislature has the control, and may enlarge, limit, or alter them, provided that it does not deny a remedy, or so embarrass it with restrictions and conditions, as seriously to impair the value of the right.'
Here the original remedy possessed by the coupon holder is abolished and that which is given as a substitute is so embarrassed with conditions as to destroy the value of the contract.
In the case of Louisiana v. Pilsbury, which was before us at the last term, the legislature of that state had passed a law prohibiting its courts from issuing a mandamus to compel the levy of a tax for the payment of bonds other than those issued under what was known as the premium-bond plan, thus cutting off the means of enforcing certain bonds held by the relator, and this court unanimously held that 'the inhibition upon the courts of the state to issue a mandamus for the levy of a tax for the payment of interest or principle of any bonds except those issued under the premium-bond plan was a clear impairment of the means for the enforcement of the contract with the holders of the consolidated bonds.' 'When the contract was made,' said the court, 'the writ was the usual and the only effective means to compel the city authorities to do their duty in the premises in case of their failure to provide in other ways the required funds. There was no other complete and adequate remedy. The only ground on which a change of remedy existing when a contract was made is permissible without impairment of the contract, is that a new and adequate and efficacious remedy be substituted for that which is superseded.' [107 U.S. 769, 801] That there is any adequate and efficacious remedy substituted for the one in existence when the funding act was adopted cannot, it seems to me, be seriously affirmed. The remedy originally existing was effective. No officer could refuse to receive the coupon without subjecting himself to personal liability. After a tender, no valid sale could be made for the taxes; and the creditor could invoke the compulsory process of the courts to secure a specific performance. Now all is changed. A law which practically destroys the value of the coupon is sustained. The officer is not bound to receive it, in the sense that he cannot be compelled to take it. He can enforce the payment of taxes in money; he can sell property, if necessary, to collect them; he can wholly ignore the coupon unless the holder should foolishly consent to incur double the amount in costs to establish by a jury trial its genuineness and legal receivability for taxes.
I find myself bewildered by the opinion of the majority of the court. I confess that I cannot comprehend it, so foreign does it appear to be from what I have heretofore supposed to be established and settled law. And I fear that it will be appealed to as an excuse, if not justification, for legislation amounting practically to the repudiation of the obligations of the states; and of their subordinate municipalities-their cities and counties. It will only be necessary to insert in their statutes a false recital of the existence of forged and spurious bonds and coupons- as a plausible pretext for such legislation-and their schemes of plunder will be accomplished. No greater calamity could, in my judgment, befall the country than the general adoption of the doctrine that it is not a constitutional impairment of the obligation of contracts, to embarrass their enforcement with onerous and destructive conditions, and thus to evade the performance of them.
I am of opinion that the judgment of the court of appeals of Virginia should be reversed, and the cause remanded with instructions to award the mandamus prayed.
HARLAN, J., dissenting.
I understand my brethren of the majority, in the opinion read by the chief justice, to declare: That the bonds and coupons issued by Virginia, under the [107 U.S. 769, 802] funding act of 1871, constitute contracts, within the meaning of that clause of the federal constitution, which forbids a state from passing any law impairing the obligations of contracts; that the holder of a coupon, so issued, against whom state taxes are assessed, is entitled under his contract to have it applied in payment of his taxes, when offered; that the statute of January 14, 1882, in so far as it prevents the tax- collector from receiving it, when so offered, for any purpose except that of identification and verification, is in conflict with the federal constitution, and therefore void; that as a general rule, the laws applicable to the case, in force at the time and place of making a contract, including those which affect its validity, construction, discharge, and enforcement, enter into and form a part of the contract itself; and that while the state may alter or change existing remedies for the enforcement of a contract, it may not make such alterations and changes in the forms of action or modes of proceeding as will impair substantial rights, or leave the party without an adequate and efficacious remedy for their enforcement. I understand them, also, to reaffirm Bronson v. Kinzie, 1 How. 316, where, among other things, this court, speaking by Chief Justice TANEY, said:
I do not understand the court to throw any doubt upon or in any degree to qualify the decision, either [107 U.S. 769, 803] in Providence Bank v. Billings, 4 Pet. 560, where this court, speaking by Chief Justice MARSHALL, said that it had 'been settled that a contract entered into between a state and an individual is as fully protected by the tenth section of the frist article of the constitution, as a contract between two individuals;' or in Green v. Biddle, 8 Wheat. 84, where it was said, through Mr. Justice WASHINGTON, that 'the constitution of the United States embraces all contracts, executed or executory, whether between individuals or between a state and individuals, and that a state has no more power to impair an obligation into which she herself has entered than she can the contracts of individuals;' or in Woodruff v. Trapnall, 10 How. 207, where, speaking by Mr. Justice MCLEAN, the court declared that 'a state can no more impair, by legislation, the obligation of its own contracts, than it can impair the obligation of the contracts of individuals;' or in Wolff v. New Orleans, 103 U.S. 366 , where, speaking by Mr. Justice FIELD, this court unanimously held 'that the prohibition of the constitution against the passage of laws impairing the obligation of contracts applies to the contracts of states, and to those of its agents acting under its authority, as well as to contracts between individuals.'
These propositions meet my hearty approval, as well because they rest upon a sound interpretation of the constitution, as because they have been long established by the decisions of this court. But, with my brother FIELD, I am constrained to withhold my assent from so much of the opinion of the court as holds that the remedy provided by the act of January 14, 1882, is adequate or efficacious for the protection and enforcement of the rights of parties holding bonds and coupons issued by Virginia under the funding act of 1871. On the contrary, the former act, especially as modified by that of April 7, 1882, is a palpable and flagrant impairment of the obligation of her contract, and, consequently, is unconstitutional and void. If the act of January 14, 1882, be [107 U.S. 769, 804] upheld in its application to bonds issued under the act of 1871, it is difficult to perceive that the constitutional inhibition upon laws impairing the obligation of contracts is of the slightest practical value for the preservation of the rights of those dealing with states. Indeed, the act of January 14, 1882, in its necessary operation, as directly and effectually impairs the commercial value of the bonds and coupons issued under the funding act as would a statute which repudiated the bonds outright, and forbade the receipt of their coupons, under any circumstances, for taxes, debts, or demands due Virginia.
What were the rights acquired by the bondholders under the funding act, and other laws of Virginia in force when that act was passed? This inquiry is fundamental in the case, since those rights are entitled to judicial protection, either through the remedies given when they accrued, or through the remedies, if any, subsequently given, which may be adequate and efficacious to that end. Under the contract Antoni was entitled, as all agree, to have his coupon received, when offered, in payment of taxes. If the tax-collector refused to receive it, when so offered, the laws in force when the contract was made gave him the remedy of a mandamus from the supreme court of appeals of Virginia to compel the collector to accept his coupon and cancel his taxes. This is conceded by my brethren of the majority, and no one claims that there was any other remedy at that time for the direct enforcement of the contract. And that remedy, it cannot be denied, was one of value, since the taxes, until paid, constituted an incumbrance upon the tax-payer's property, which he could not prudently overlook, and which he was entitled to have removed. It should be observed, in this connection, that the constitution of Virginia, adopted in 1870, ( article 4, 2,) in express terms, gave original jurisdiction to the supreme court of appeals in cases of mandamus. Such were the contract rights of the bondholders under the act of 1871, and such the remedy then given for their enforcement.
I proceed to inquiry whether those rights have been impaired by the act of January 14, 1882. The first section of that act declares that the officer to whom coupons, issued under the act of 1871, are tendered in payment of taxes, debts, or demands due the state, 'shall receive the same for the purpose of identification and verification.' The second section provides that he shall, at the same time, require the tax-payer to pay his taxes [107 U.S. 769, 805] in coin, legal-tender notes, or national-bank bills, and, upon such payment, give him a receipt for the same; and, in case of a refusal of the tax-payer so to pay, the officer is directed to collect the taxes as all other delinquent taxes are collected; that is, by levy and distraint. It may be observed here that where the tax-payer elects to stand upon the terms of his contract, and refuses to pay his taxes in coin, legal-tender notes, or bank bills, the act, curiously enough, does not direct the officer to return the coupons so tendered.
But having possession of the coupons, and the coupon holder having refused to surrender his contract rights, the third section of the act requires the collector to deliver the coupons to the judge of the county court of the county or the hustings court of the city in which such taxes, debts, or damands are payable. Thereupon, the act declares, the tax-payer shall 'be at liberty to file his petition in said county court against the commonwealth,' and have a jury impaneled to try whether the coupons are 'genuine, legal coupons, which are legally receivable for taxes, debts, and demands,' with right of appeal by either party to the circuit court and court of appeals. 'If it be finally decided in favor of the petitioner that the coupons tendered by him are genuine, legal coupons, which are legally receivable for taxes and so forth, then the judgment of the court shall be certified to the treasurer, who, upon the receipt thereof, shall receive said coupons for taxes, and shall refund the money, before then paid for his taxes by the tax-payer, out of the first money in the treasury, in preference to all other claims.'
The alteration made by the act of January 14, 1882, of the remedy by mandamus, is this: If a mandamus is applied for to any court of the commonwealth, the collector shall make return 'that he is ready to receive said coupons in payment of such taxes, debts, and demands as soon as they have been legally ascertained to be genuine, and the coupons which, by law, are actually receivable.' Upon such return the court shall require the tax- payer to pay his taxes to the proper officer, which being done, the tax- payer must file his coupons in court which is directed to forward them to the county court of the county or the hustings court of the city where the taxes are payable, when an issue is framed, upon the trial of which the officer representing the state must require proof of the genuineness and legality of the coupons tendered. A [107 U.S. 769, 806] right of appeal is given to the circuit court and the supreme court of appeals. If the petitioner finally succeeds, then the court is required to issue a mandamus for the receipt of the coupons for the taxes assessed. Thereupon the treasurer of the commonwealth must refund to the tax-payer the amount theretofore paid by him out of any money in the treasury, in preference to all other claims. The subsequent act of April 7, 1882, provides that no writ of mandamus shall issue from the supreme court of appeals 'in any case of the collection or attempt to collect revenue, or compel the collecting officers to receive anything in payment of taxes other than as provided in chapter 41, Acts of Assembly, approved January 26, 1882, or in any case arising out of the collection of revenue in which the applicant for the writ or process has any other remedy adequate for the protection and enforcement of his individual right, claim, and demand, if just.'
This court waives any determination of the question whether the act of April 7, 1882, repeals so much of that of January 14, 1882, as relates to mandamus. But, referring to the remedy given by the first, second, and third sections of the latter act, it holds that there is no substantial difference between the remedy given by those sections and the remedy given by mandamus in the same act; further,-which is vital in this case,-that the obligation of the contract is not impaired by the changes made by the act of January 14, 1882, in the remedies for its enforcement, in case the collector refuses to accept coupons in payment of taxes when offered for that purpose. Here is the radical difference between the majority of my brethren and myself. To my mind-I say it with all respect for my associates who have reached a different conclusion-it is so entirely clear that the change in the remedies has impaired both the obligation and value of the contract that I almost despair of making it clearer by argument or illustration. Under the contract the tax-payer, it is conceded, is entitled to have his coupon received for his taxes when tendered; while under the statute of January 14, 1882, the collector is forbidden to so receive it; and the tax-payer, in order to protect his property against levy or distraint, and relieve it from the incumbrance created by the assessment of taxes, must pay his taxes [107 U.S. 769, 807] in money, and then, if he wishes to get his money back, prove to the satisfaction of 12 jurymen the genuineness and legal receivability of his coupons. Under the contract and the laws in force when it was made, the tax-payer is entitled, in the first instance, to enforce the receipt of his coupons for taxes by mandamus, the sole remedy then given to effect that result; while under the subsequent legislation he is denied the right to a mandamus until he first pays his taxes in money, and then proves to the satisfaction of 12 juryman that they are genuine coupons and legally receivable for taxes. Under the contract, and the laws in force when it was made, the tax-collector was not bound to resist an application for mandamus, and it is not to be presumed that he would do so unless he doubted the genuineness of the coupons tendered in payment of taxes; if, however, he did so, he became liable to pay the costs incurred by the tax- payer when the latter succeeded; while under the act of January 14, 1882, all discretion is taken from the collector, and he is required, although he may know the coupons to be genuine and legally receivable for taxes, to decline receiving them for taxes until the tax-payer, having first paid his taxes in money, shall prove them, to the satisfaction of 12 jurymen, to be genuine.
Let me further illustrate some of these propositions. Suppose the tax- payer holds a bond for $100 issued under the act of 1871. It has 34 years to run, with interest payable semi-annually at the rate of 6 per cent. per annum. The interest for the whole period the bond runs is evidenced by 68 coupons of three dollars each. Under the laws in force when the contract was made, a mandamus to compel the receipt of the first coupon for taxes, having established its genuineness and its receivability for taxes, would estop the collector or the commonwealth from raising any such question as to the remaining coupons of the same bond. But under the act of January 14, 1882, the collector is required, as to all coupons presented, although known to be genuine, to collect money for the taxes for which such coupons are tendered; and that money is retained by the commonwealth, unless the tax-payer, upon every presentation of coupons for taxes, goes through [107 U.S. 769, 808] the jury trial prescribed by that act, and obtains a verdict establishing their genuiness and legal receivability for taxes. The verdict as to one lot of coupons does not, under that act, establish the genuineness of other coupons of the same bond. Thus it is demonstrably clear that the tax- payer, before he can enforce the receipt of the entire 68 coupons of one bond for $100, may be required to have at least as many jury trials, covering precisely the same issues, as there may be occasions to use coupons in payment of taxes. Certainly the tax-payer, if not an attorney, cannot go safely before the jury without an attorney to represent him. It is therefore almost absolutely certain that his attorney's fee and costs for each jury trial will be several times greater than the amount of the coupons involved in such trial. The result, then, is that the tax-payer will lose more by presenting his coupons in payment of his taxes then by making an absolute gift of them to the commonwealth.
And the remedy thus given by the statutes, passed after the contract was made, for the enforcement of the tax-payer's admitted right to have his coupon received for taxes, when offered, is pronounced to be adequate and efficacious, and not an impairment of the substantial rights given by the contract. My brethren-distinctly admitting that the legislation of 1882 is in hostility to the state's creditors, and has impaired the commercial value both of the bonds and their coupons-in effect, hold that such legislation does not burden the proceedings for the enforcement of the contract with any new conditions or restrictions inconsistent with, or which impair, its obligations. I cannot assent to such conclusion, believing, as I do, not only that it is in direct conflict with every adjudged case cited, either by the court or by my brother FIELD, but that the new remedy is adequate and efficacious, not for the preservation and enforcement, but the destruction, of the contract. The holders of the bonds and coupons are placed by the legislation of 1882 in the position where it is useless and impracticable to pursue the remedies thereby given. To my mind this is so perfectly apparent that I should have deemed it impossible that [107 U.S. 769, 809] any different view could be entertained. It should be remembered that the court places its decision upon the ground that the change in the remedy has not, in legal effect, impaired the obligation of the contract, and not upon the ground that this suit is, within the meaning of the federal constitution, a suit against the state. Nor could it be placed upon the latter ground without overturning the settled doctrines of this court. Davis v. Gray, 16 Wall. 220; Osborn v. Bank of U. S. 9 Wheat. 750; Board of Liquidation v. McComb, 92 U.S. 541 . It is a case in which 'a plain official duty, requiring no exercise of discretion, is to be performed,' and where performance in the mode stipulated by the contract is refused. In such cases, any person who will sustain personal injury by such refusal may have a mandamus to compel its performance. Board of Liquidation, etc., v. McComb, supra. The acts of 1882, in their application to the bonds issued under that of 1871, are unconstitutional and void, because they impair the obligations of the contract between the parties. The way is, therefore, clear for the court to give the remedy allowed by the law when the contract was made. That remedy is, in law, unaffected by subsequent legislation, which is unconstitutional. The defendant cannot plead such statutes as an excuse for the non-performance of a plain official duty, requiring no exercise of discretion, because, as held in Board of Liquidation v. McComb, supra, in accordance with settled principles, 'an unconstitutional law will be treated by the courts as null and void,' and 'if the officer plead the authority of an unconstitutional law for the non- performance or violation of his duty,' that will not prevent a mandamus from being issued, or an injunction being granted, when that is necessary to prevent threatened injury.
One word in this connection about Tennessee v. Sneed, 96 U.S. 69 , to which the court refers as authority for the present decision. In the brief of the attorney general of Virginia the names of the justices who participated in that decision are given, and mine is placed among the number. This is an error into which counsel naturally fell by reason of the fact that there are cases in the same volume preceding that of Tennessee v. Sneed, and cases in the previous volume of our reports, in the decision of which I participated. In fact, however, that [107 U.S. 769, 810] cases was determined, and the decision therein announced, before I became a member of this court.
Touching Tennessee v. Sneed, I may say that it does not militate against the views I have expressed. Upon the face of that decision its appears that this court, accepting as authority a decision of the supreme court of Tennessee, held that when the contract there in question was made, no remedy by mandamus was given against an officer of the state charged with the collection of the revenue. And to show that the court did not have before it, and did not decide, any case of the withdrawal of existing remedies by subsequent legislation, I quote this language from the opinion of Mr. Justice HUNT, speaking for the court: 'The question discussed by Mr. Justice SWAYNE in Walker v. Whitehead, 16 Wall. 314, of the preservation of the laws in existence at the time of the making of the contract, is not before us. The claim is of a subsequent injury to the contract.'
Without further elaboration, and referring to the authorities cited in the dissenting opinion of my brother FIELD, I content myself with saying that the principles of law applicable to the present cases are stated in McCracken v. Hayward, 2 How. 612, where this court, speaking by Mr. Justice BALDWIN, said: 'The obligation of a contract consists in its binding force on the party who makes it. This depends upon the laws in existence when it is made. These are necessarily referred to in all contracts, and form a part of them as the measure of the obligations to perform them by the one party, and the right acquired by the other. There can be no other standard by which to ascertain the extent of either than that which the terms of the contract indicate, according to their settled legal meaning. When it becomes consummated, the law defines the duty and the right, compels one party to perform the thing contracted for, and gives the other a right to enforce the performance by the remedies then in force. If any subsequent law affect to diminish the duty, or to impair the right, it necessarily bears on the obligation of the contract in favor of one party to the injury of the other; hence, any law which in its operation amounts to a denial or an obstruction of the rights accruing by a contract, though professing to act only on [107 U.S. 769, 811] the remedy, is directly obnoxious to the prohibition of the constitution . ... The obligation of the contract between the parties, in this case, was to perform the promises and undertakings contained therein; the right of the plaintiff was to damages for the breach thereof, to bring suit and obtain judgment, to take out and prosecute an execution against the defendant till the judgment was satisfied, pursuant to the existing laws of Illinois. These laws giving these rights were as perfectly binding on the defendant, and as much a part of the contract, as if they had been set forth in its stipulations in the very words of the law relating to judgments and executions.'
Mr. Story, in his Commentaries on the Constitution, (vol. 2, p. 245,) says that any deviation from the terms of a contract, by postponing or accelerating the performance it prescribes, or imposing conditions not expressed in the contract, or dispensing with the performance of those which are a part of the contract, impairs its obligation. And Mr. COOLEY, in his treatise on Constitutional Limitations, summarizes, as I think correctly, the doctrines of numerous adjudged cases in this and other courts, when he says that 'where a statute does not leave a party a substantial remedy, according to the course of justice as it existed at the time the contract was made, but shows upon its face an intention to clog, hamper, or embarrass the proceedings to enforce the remedy so as to destroy it entirely, and thus impair the contract, so far as it is in the power of the legislature to do it, such statute cannot be regarded as a mere regulation of the remedy, and is void,' (p. 289)-language strikingly applicable to the legislation of Virginia.
By an act passed by the legislature of Virginia on the seventh of March, 1872, collectors of taxes were required to accept, in payment of taxes, nothing but gold and silver coin, United States treasury notes, and notes of national banks. But the supreme court of appeals of that commonwealth pronounced it to be unconstitutional as applied to the holders of bonds and coupons issued under the funding act of 1871. 22 Grat. 833; 24 Grat. 169; 30 Grat. 137. Other statutes were subsequently passed, plainly having for their object the destruction of the contracts made under and in pursuance of the funding act of 1871. The constitutional validity of that legislation was [107 U.S. 769, 812] involved in Hartman v. Greenhow, 102 U.S. 672 . This court there, with only one dissenting voice, sustained the right of tax-payers, holding coupons issued under the act of 1871, to have them received in payment of taxes. Finally came the enactments of 1882, which have so changed the remedies existing when bonds were issued under the act of 1871 that tax- payers, holding coupons of such bonds, cannot use them in payment of taxes without expending more money to enforce compliance with their contract than the coupons are worth.
I cannot agree that the courts of the Union are powerless against state legislation which is so manifestly designed to destroy contract rights protected by the constitution of the United States.
Without stopping to speculate upon the disastrous consequences which would result both to the business interests and to the honor of the country if all the states should enact statutes similar to those passed by Virginia, I sum up what has been so imperfectly said by me: If, as is conceded, Antoni is entitled by the contract to have his coupon received in payment of taxes, when offered for that purpose, and if, as is also conceded in the opinion of the majority, he was entitled, by the laws in force when the contract was made, to the remedy of mandamus to compel the tax-collector to receive his coupons and discharge pro tanto his taxes, it is clear that the subsequent statute does impair the obligation of the contract, by imposing new and burdensome conditions, which not only prohibit the collector from receiving coupons in payment of taxes when offered, but require the tax-payer to pay his taxes in money, not to be returned to him, unless, upon the occasion of each tender of coupons, he submits (without the possibility of recovering his costs of suit) to a jury trial, and proves to the satisfaction of 12 jurymen that the coupons tendered are genuine and legally receivable for taxes.
Upon the grounds stated I dissent from the judgment.