Antoni v. GreenhowAntoni v. Greenhow
- Reporters:
- , , ,
- Before:
- Waite
Lead Opinion
delivered the opinion of the court.
On the 80th of March, 1871, 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 7th 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 Antoni v. Wright, 22 Gratt. 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 id. 169; and in Clarke v. Tyler, 30 id. 134, 137, decided in 1878, it was said: “This
At the time tbe act of 1871 was passed, and when the bonds and coupons were issued, tbe Supreme Court of Appeals of tbe State bad jurisdiction to grant a mandamus in any cases where the writ would lie, according to tbe principles of the common law, if nfecessary to prevent a failure of justice; and in Antoni v. Wright, ubi supra, it was decided that a mandamus was the proper remedy to compel a collector to accept tbe coupons in question when offered in payment of taxes. Vise v. Rogers presented tbe same question, and we understand it to have been the settled practice of that court to entertain suits for similar relief.
Tbe form and mode of proceeding were regulated by statute. Sect. 1, c. 151, of the Code of Virginia, 1873, p. 1023, provided that tbe return to a writ of mandamus should state plainly and concisely tbe matter of law or fact relied on in opposition to tbe complaint; that tbe complainant might thereupon demur to tbe return, or plead thereto, or both, and that tbe defendant might reply, take issue on, or demur to tbe pleas of tbe Gomplainant. Tbe case was to be tried at tbe place where writs-of error to tbe court were to be tried, and after a verdict was found, or judgment rendered on demurrer or otherwise for tbe person suing out tbe writ, be could recover his costs, with such damages as tbe jury might assess, and have forthwith a peremptory writ. Code, p. 1051.
On the 14th of January, 1882, tbe General Assembly passed tbe following act: —
“ Chap. 7. — An Act to prevent frauds upon the Commonwealth and the holders of her securities in the collection and disbursement of revenues.
“ Whereas, bonds purporting to be the bonds of this Commonwealth, issued by authority of the act of March thirtieth, eighteen hundred and seventy-one, entitled an act to provide for the funding and payment of the public debt, and under the act of March twenty-eight, eighteen hundred and seventy-nine, entitled an act
“And whereas, other such‘bonds are in existence which are spurious, stolen, or forged, which bonds bear coupons in the similitude of genuine coupons; receivable for all taxes, debts, and demands due the Commonwealth;
“ And whereas, the coupons from such spurious, stolen, or forged bonds are received in payment of taxes, debts, and demands;
“ And whereas, genuine coupons from genuine bonds, after having been received in payment of taxes, debts, and demands, are fraudulently reissued, and received more than once in such payments;
“And whereas, such frauds on the rights of the holders of the aforesaid bonds impair the contract made by the Commonwealth with them, that the coupons thereon should be received in payment of all taxes, debts, and demands due the said Commonwealth, and at the same time defraud her out of her revenues;
“ Therefore, for the purpose of protecting the rights of said bondholders and of enforcing the said contract between them and the Commonwealth, preventing frauds in the revenue of the same,
“1. Be it enacted by the General Assembly of Virginia,-That whenever any taxpayer or his agent shall tender to any person whose duty it is to collect or receive taxes, debts, or demands due the Commonwealth, any papers or instruments in print, writing, or engraving, purporting to be coupons detached from bonds of the Commonwealth issued under the act of eighteen hundred and seventy-one, entitled an act to fund the public debt, in payment of any such taxes, debts, and demands, the person to whom such papers are tendered shall receive the same, giving the party tendering a receipt stating that he has received the same for the purpose of identification and verification.
“ 2. He shall at the same time require such taxpayer to pay his taxes in coin, legal-tender notes, or national-bank bills, and upon payment give him a receipt for the same. In case of refusal to pay, the taxes due shall be collected as all other delinquent taxes are collected.
•. “ 3. He shall mark each paper as coupons so received, with the initials of the taxpayer from whom received, and the date of receipt, and shall deliver the same, securely sealed up, to the judge of tfye county court of the county or hustings court of the city in which such taxes, debts, or demands are payable. The taxpayer shall thereupon be at liberty to file his petition in said county court against thei Commonwealth. A summons to answer which,petition shall be served on the Commonwealth’s attorney, who shall appear and defend the
“4. Whenever any taxpayer shall apply to any court in this Commonwealth for a mandamus to compel any person authorized to receive or collect taxes, debts, or demands due the Commonwealth to receive coupons for taxes, it shall be the duty of such person to make return to said mandamus, 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 before whom the application is made shall require the petitioner to pay his taxes to the tax-collector of his county or city, or to the treasurer of the Commonwealth, and upon filing the receipt for such taxes in such court the said ■ court shall direct the petitioner to file his coupons in such court, which shall- then forward the same to the county court ,of the county or hustings court of the city where such taxes are payable, and direct such 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. On the trial of the cause the attorney for the Commonwealth in the lower courts and the attorney-general in the Supreme Court of Appeals, shall appear for the Commonwealth and require proof of the genuineness and legality of the coupons in issue. Either party shall be entitled to exceptions, and an appeal to the Circuit Court and Supreme Court of Appeals on the trial of this issue. If the decision be finally in favor of the petitioner, the mandamus shall issue requiring the coupons to be received for said taxes, and so forth; and they shall be so received ; and on the certificate of such judgment tile treasurer of the Commonwealth shall forthwith refund to the taxpayer the amount
“ 5. This act shall be in force from its passage.”
On tbe 20th of March, 1882, Andrew Antoni, who owed the State taxes to the amount of three dollars and fifteen cents, tendered in payment, to the treasurer of the city of Richmond, the tax-collector, fifteen cents in lawful money, and a coupon, of the issue of 1871, for three dollars. This tender was refused, and Antoni, on the 28th of March, petitioned the Supreme Court of Appeals for a mandamus to require its acceptance. The treasurer, on the 30th of March, for a return to an .order to show cause, said that 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 enforce-, menfipf its contract, if the collector refuses to take the coupon.
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. 314, 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 in respect to the
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 defences the collector could make. He might raise such issues as he chose.
. Under this law the trial must be had in the Supreme Court of Appeals at the time and place where it was to be held for other purposes. There was nothing in the law to give the case preference over others for trial. So far as we are informed, it stood as other cases before the court, and was 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 sect. 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 coupon‘s must be made. Either party may take ¿xceptions and carry the case, on appeal, to the Circuit Court and the 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
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 a 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 lie 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
2. As to the change in the place and mode of trial.
Wé 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 impair
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, by an act approved April 7, 1882, amended the section of the code conferring jurisdiction on the Supreme Court of Appeals in suits for mandamus, so that it now reads as follows: —
“Chap. 19. — An Act to amend and re-enact section four, chapter one hundred and fifty-six, of the code of eighteen hundred and seventy-three, in relation to mandamus, prohibition, <Sbc.
1. llJBe it enacted by the General Assembly of Virginia, That chapter one hundred and fifty-six, section four, of the Code of-Virginia of eighteen hundred and seventy-three, be amended and re-enacted, so as to read as follows: —
“ Sect. 4. The said Supreme Court, besides having jurisdiction of all such matters as are now pending therein, shall have jurisdiction to issue writs of mandamus and prohibition to the circuit and corporation courts, and to the hustings court and the chancery court of the city of Richmond, and in all other cases in which it may be necessary to prevent a failure of justice, in which a mandamus may issue according to the principles of the common law, provided that no writ of mandamus, prohibition, or any other summary process whatever, shall issue 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 forty-one, acts of assembly, approved January twenty-six, eighteen hundred and eighty-two, or in any case arising out of the collection of revenue in which the applicant for the writ of process has any other remedy adequate for the protection and enforcement of his individual right, claim, and demand, if just.
“ The practice and proceedings upon such writs shall be governed and regulated, in all cases, by the principles and practice now prevailing in respect to writs of mandamus and prohibition respectively.
“2. This act shall be in force from its passage:””
It is somewhat difficult to see any substantial difference .between the remedy given by these sections and that by sect. 4. There the form of the suit is mandamus begun while the coupons are in the hands of the taxpayer. 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 notin law receivable. The petition for mandamus, filed in the Court of Appeals, under sect. 4, is the exact equivalent of the petition
Mandamus, in this class of cases, is in the nature of a suit to enforce the 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 an action for its recovery, with ample provision for the satisfaction of any judgment that may be obtained; for it is made the ministerial duly 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 taxpayer 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 art. 10, sect. 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
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 the 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 decide 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 impairment, in our opinion, comes not from the change of the 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 üs; 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 froirfythe long line of cases in which the principle 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.
Judgment affirmed.
Concurrence Opinion
I concur in the judgment of the court, but prefer to test the decision upon a ground different from that on which it is placed in its opinion.
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 Louisiana v. Jumel, ante, pp. 711, 728: “ When a State submits itself, without reservation, to the jurisdiction of a court in a particular case, that jurisdiction may be used to give full effect to what the State has, by its act of submission, allowed to be done; and if the law permits coercion of the public officers to enforce any judgment that may be rendered, then such coercion may be employed for that purpose. But this is very far from authorizing the courts, when a State cannot be sued, to set up its jurisdiction over the officers in charge of the public moneys, so as to control them as against the political power in their administration of the finances of the State.”
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.
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 20th of March, 1882, was indebted to the State for taxes to the amount of three dollars and fifteen cents. At that time he was also the lawful holder of an overdue interest-coupon for three dollars, 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 : —
“ The Commonwealth of Virginia will pay the bearer three dollars, interest due first January, 1882, on bond 6,498.
“ George Rye,
“ Treasurer of the Commonwealth of Virginia.
“ Coupon No. 21.”
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.
The act also provides that whenever any taxpayer 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
The question for decision here is as to the constitutionality of the act of Jan. 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 thirty millions of dollars. The interest on them was regularly paid up to the breaking out of the war. • Afterwards its payments 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 forty-five millions of dollars.
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
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 sufficient to pay the accruing. interest and redeem the principal’ within thirty-four years.” Constitution of 1863, art. 8, sect. 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, ascertáin 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 30th 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
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
The Supreme Court of Appeals of Virginia had previously spoken, with respect sto 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 taxe.s, 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 Gratt. (Va.) 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 legis
Under the act of Jan. 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 óf 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
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 tbe hands of a receiver.
No weight is to be given to the recitals in the preamble of the act of Jan. 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.” Constitutional Limitations, 96.
Says the Court of Appeals of Kentucky: “ The legislature, in all its inquiring forms, by committees, .makes no issue, and in their discretion may or may not coerce the attendance of witnesses, or the production of records, and are frequently not bound by those rules of evidence applicable to an issue properly formed, the trial of which is an exercise of- judicial power. Once adopt the principle that such facts are conclusive, or even prima fade evidence against private rights, and many individual controversies may be prejudged, and drawn from the
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 jt 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 cancelled by him at the. time.
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 cancelled, 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 : “ Whilst its professed object in its title is to prevent frauds upon tbe Commonwealth and the holders of its securities, it greatly depreciates the value of those securities, and thereby impairs the obligation of contracts, under the vain pretext that it is necessary to protect the Commonwealth against frauds. It not only destroys or renders almost valueless the coupon, but also the.coupon bonds, amounting to millions of dollars, issued by the State by authority of the act of March 30, 1871, and whose value depends upon the prompt payment of interest, of which assurance was given by the State to the
• 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. Cray, 16 Wall. 203; Murray v. Charleston, 96 U. S. 432; Hall v. Wisconsin, 103 id. 5.
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 coneerned? 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, “ The obligation of a contract consists in its binding force on the party who makes.it. This depends on the laws.in existence whén it is made; these are necessarily referred to in all contracts and form a part of them as the measure of the obligation to perform them by the one party, and the right acquired by the other.” 2 How. 608, 612.
To the same purport and still more emphatic is- the language
. In other words, to quote the language of Professor Pomeroy in his work oh Constitutional Law, “ A party may demand that substantially the same remedial right appropriate to his contract when it was entered into shall be accorded to him when it is broken.” “ Under our system of jurisprudence,” says the same writer, l( two forms of remedial right may result to the injured party upon the breach of a contract; the’ one form applying to a small number only of agreements, the other being appropriate to all. The first is the right to have done exactly what the defaulting party promised to do, — the remedial right to a specific performance. The other is compensatory, or the right to be paid such an amount of pecuniary damages as shall be a compensation for the injury caused by the failure of the defaulting party to do exactly what he promised to do. Both of these species of remedial rights must be pursued by the aid of the courts. In both the existence of the contract and of the breach must be established. These facts having been sufficiently ascertained,’ a decree or judicial order must be rendered, in the first case, that the defaulting party do exactly what he undertook to do, and in the second case, that the defaulting party pay the sum of money fixed as a compensation for his delict.” Sects. 611, 612.
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 the State a remedy for the specific execution of the contract, by which this receivability could be enforced. The legislation of Jan. 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
In Bronson v. Kinzie this court, speaking by Chief Justice Taney, said: “ It is difficult, perhaps, to draw a line that would be applicable in all cases between legitimate alterations of the remedy and provisions which, in the form of remedy, impair the right. But it is manifest that the obligation of á contract, and the rights of a party under it, may in effect be destroyed by denying a remedy altogether, Or may be seriously impaired by burdening the proceedings with, new conditions and restrictions, so as to make the remedy hardly worth pursuing. ■ And no one, we presume, would say that there is any substantial difference between a retrospective law, declaring a particular contract or class of contracts tot be ^abrogated and void, and one which took away all remedy to. enforce them, or incumbered it with cohditions that rendered- it useless or impracticable to pursue it.” 1 How. 811, 317.
In Planters’ Bank v. Sharp this court said: “ One of the tests that a contract has been impaired is, that its value has by legislation-been diminished. .It is not, by the Constitution, to’ be impaired at all.’ This is not a question of degree or manner or cause, but of encroaching in any respect on its obligation, dispensing with any part of its force.” 6 id. 301, 327.
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 Í3 one of the highest duties of
In Edwards v. Kearzey this court said, speaking by Mr. Justice Swayne, so lately one of our number : “ The remedy subsisting in a State when and where a contract is made and is to be performed is a part of its obligation, and any subsequent law of. the State which so affects that remedy as substantially to impair and lessen’ the value of the contract is forbiddén by the Constitution, and is therefore void.” 96 U. S. 595, 607. Mr. Justice Clifford,, also lately sitting with us, in a concurring opinion in the same case, said : “ When an appropriate remedy exists for the enforcement of the contract at the time it was made, the State legislature cannot deprive the party of such a remedy, nor can the legislature append to the right such restrictions or conditions as to render its exercise ineffectual or unavailing.” Id; 608.
’ And only two terms ago, in Louisiana v. New Orleans, this court said, without a dissenting voice, that “ the obligation of a contract, in the constitutional sense, is the means provided by law by which.it can be enforced, by which the parties can be obliged to perform it. Whatever legislation lessens the efficacy of these means impairs the obligation. If it tend to postpone or retard the enforcement of the contract, the obligation of the latter is to that extent weakened:” 102 id. 203, 206.
How can it be maintained, in the face of these decisions, that the legislation of Jan. 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
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. • - .
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 if 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
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 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 thosé.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 principal of any bonds except those issued under’ the premium-bond plan was 9- clear impairment of the means for the enforcement of the contract with the holders of the consolidated bonds. When the contract was made, 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.” 105 U. S. 278, 301.
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 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.
Mr. Justice Harlan.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
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 them, when it is offered for that purpose ;
That the act of Jan. 14, 1882, in so far as it prevents the tax-collector from receiving it, when so offered, for any purposes 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, it may not make such alterations and changes in the forms of action or the 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. 311, where, among other things, this, court, sper king by Chief Justice Taney, said: “It is difficult, perhaps, tj draw a line that would be applicable in all cases between legitimate alterations of the remedy, and provisions which, in the form of remedy, impair the right. But it is manifest that the obligation of the contract, and the rights of a party under it, may, in effect, be destroyed by denying a remedy altogether; or may be seriously impaired by burdening the proceedings with new conditions and restrictions, so as to make the remedy hardly worth pursuing. And no one, we presume, would say that there is any substantial difference between a retrospective law declaring a particular contract or class of contracts to be abrogated and void, and one which took away all remedy to enforce them, or incumbered it with conditions that rendered it useless or impracticable to pursue it.” p. 317.
I do not understand the court to throw any doubt upon, or in any degree to qualify the decision in, State of New Jer
These propositions meet my hearty approval, as well because they rest upon a sound interpretation of the Constitution, as be-, cause they have been long established by the decisions of this court. But the difficulty I have is to reconcile the judgment in this case with these admitted propositions, and, therefore, I am, with my brother Field, constrained to dissent from so much of the opinion as maintains that the remedy provided by the act of Jan. 14, 1882, is adequate and efficacious for the protection and enforcement of the rights of the holders of the bonds and coupons, and substantially equivalent to that given when they‘were issued. On the contrary, the act, especially as subsequently modified, is, I take leave to say, a palpable and flagrant impairment of the obligation of the contract of Virginia, and, consequently, is unconstitutional and void. If it be
What were the rights of the bondholder under the funding act, and other laws of Virginia in force when it was passed ? This inquiry is fundamental, since those rights are entitled to judicial protection, either by the remedies existing when they accrued, or by such, if any, subsequently given, as 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 his taxes. If, when sojjffered, it was refused, those laws provided him with the remedy of a mandamus from the Supreme Court of Appeals to compel the collector to accept it and caneel the taxes. This is conceded by my brethren of the majority, and no one claims that there was then any other remedy for the direct enforcement of the contract. And that remedy, it cannot be denied, was of value, since the taxes, until paid, constituted an incumbrance upon the taxpayer’s property which he could not prudently overlook, and which he was entitled to have removed. It should be observed, in .this connection, that section 2 of article 4 of the Constitution of Virginia, adopted in 1870, gave in express terms original jurisdiction to that court in cases of mandamus. Such were his contract rights under the act of 1871, and such was the remedy then given for their enforcement.
I proceed to inquire whether those rights have been impaired by the act of Jan. 14, 1882. The first section 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 taxpayer to pay his taxes
It may be observed here that when the taxpayer elects to stand upon the tetms 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 requires him to deliver them to the judge of the county court of the county or the hustings court of the city in which such taxes, debts, or demands are payable. Thereupon the taxpayer is “ at liberty to file his petition in said county court against the Commonwealth,” and have a jury impanelled 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 the 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 taxpayer, out of the first money in the treasury, in preference to all other claims.”
The alteration made by the act of Jan. 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 taxpayer to pay his taxes to the proper officer, which being done, the taxpayer 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
This court waives any determination of the question whether the act of April 7y 1882, repeals so much of that of Jan. 14, 1882, as relates to mandamus. But, referring to the remedy, given by the first, second, and third sections of the. Jatter 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 Jan. 14, 1882, in the remedies for its enforcement, in ease the collector refuses’ to accept in paymerft of taxes coupons, 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 them, — it is so entirely clear that the change in the remedies has impaired both the obligation and the value of the contract, that I almost despair of making it clearer by argument or illustration.
’ It is conceded that under the contract the taxpayer is entitled to have his coupon received for his taxes when tendered, while under the act of Jan. 14, 1882, the collector is forbidden tp so receive it; and the taxpayer, in order to protect his property against levy or distraint, and relieve it from the incumbrance created by the assessment/of-taxes, must pay
Under the contract and the laws in force when it was made, the taxpayer 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 that writ until he first pays his taxes in money, and then proves to the satisfaction of twelve jurymen that they are genuine coupons, and legally receivable for taxes.
Under the contract and the laws in force when it was made, the collector was not bound to resist an application for a mandamus, and it is not to be presumed that he,would do so unless he doubted the genuineness of the coupon tendered in payment of taxes. If, however, he did so, he became liable to pay costs when the taxpayer succeeded; while under the act of Jan. 14, 1882, all discretion is taken from the collector, and, without liability to pay costs in any contingency, he is required, although he may know the coupon to be genuine and legally receivable for taxes, to decline receiving it until the taxpayer, having first paid his’ taxes in money, shall, to the satisfaction of twelve jurymen, prove it to be genuine.
Let me further illustrate some of these propositions. Suppose the taxpayer holds a bond for $100 issued under the act of 1871. It has thirty-four years to run, and the interest, payable semi-annually for the whole period at the rate of six per cent per annum, is evidenced by sixty-eight 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, having established its genuineness and its receivability for taxes, — the collector and the Commonwealth would be estopped from raising any such question as to the.remaining coupons attached to the saíne bond. ■ But under the act of Jan. 14, 1882, the collector is required,’ as. to all- coupons presented, although known to be genuine, to collect money for the taxes for which they are tendered; and that money is paid into the treasury of the Commonwealth, not to be returned unless the taxpayer, upon every presentation of coupons for taxes, goes through
And the remedy thus given by the statutes, passed after the contract was made, for the enforcement of the taxpayer’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 and by a refinement of reasoning which I am unable to comprehend, hold, that such legislation does not burden the proceedings for the enforcement of the contract with any new conditions or restrictions inconsistent with or impairing its obligation. I cannot assent to such conclusion, believing, as I do, not only that it is -in direct conflict with every adjudged ease 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 for the destruction, of the contract. The holders of the bonds and coupons are placed by the legislation of 1882 in a 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
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 samé volume preceding Tennessee v. Sneed, and cases in the previous volume of our reports, in the decision of which I participated. In fact, however, that
Touching Tennessee v. Sneed, I may say that it does not militate against the views I have expressed. Upon the face of that decision it 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 impairment of the obligation of a’ contract through 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. 608, 612, 613, 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 aré 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 fprce. 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
Mr. Justice Story, in his Commentaries on the Constitution (vol. ii. 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 Judge 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 7th 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 Gratt. 938; 24 id. 169; 30 id. 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
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 subséquent 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 taxpayer 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 twelve jurymen that the coupons tendered are genuine“and legally receivable for taxes.
Upon the grounds stated I dissent from the judgment.