It recites in its preamble that the total debt of the city, bonded and floating, exceeds $23,000,000; that the taxable property of the city has become so reduced in value as to require a tax at the rate of at least five per cent per annum to liquidate the debt; that the levying of a tax at so exorbitant a rate will render its collection impossible; that the continuation of a tax beyond the ability of the property to pay would lead to a further destruction of the assessable property of the city and to ultimate practical bankruptcy; and, that the council of the city have adopted a plan for the liquidation of its indebtedness, looking to the payment of its creditors in full, "Obtaining thereby the indulgence necessary for the public well-being and the maintenance of the public honor."

of valuation, except in case of invasion, "Pro- | per cent, and yet authorizes a tax of only one and vided it be sufficient to pay the interest on the a half per cent to pay the expenses of the city consolidated debt and railroad bonds issued by government, and to meet the obligations which the City of New Orleans." In the mode thus are offered in exchange for those bonds. prescribed, the amount stipulated by the Act of 1852 was annually raised and applied until 1874, without objection from the bondholders. Hence it is contended that they waived their right to the special tax mentioned. But no such inference can be justly drawn from their silence. They could not complain so long as the amount prescribed was raised and applied as stipulated. Had the requisite funds been given to the city, and then applied to pay the interest on the bonds, and to purchase with the residue such of them as had the shortest time to run, the bondholders would have been equally without cause of complaint, and would as little have waived by their silence the right to insist upon the special tax if a resort to it should be become necessary. Nor is their right in that respect affected by the fact that since 1852 slavery has been abolished, and that there are no longer slaves upon whom taxation can be levied. The obligation of the city to raise the required fund by special tax on real estate still remains. That is no more lessened than it would be by the destruction of any other portion of the taxable property; although the rate of taxation on what is left might be thereby increased.

The Act of 1874, which postponed the levy and collection of the tax for a sinking fund for the purchase of bonds of the city until December, 1876, also declared that the Act should in nowise be construed to hinder, delay or affect the prompt payment of the interest on them as they matured. The validity of the consolidation bonds was Recognized in all its integrity, it being the object of the Act to afford temporary relief to the taxpayers of New Orleans in the embarrassed condition of its affairs, and not to detract from or impair the rights of the holders of said bonds."

But, notwithstanding this declaration of the validity of the consolidated debt, and the inviolability of the provisions for its payment, no tax was subsequently raised to pay the interest, or to retire the principal. And before the time arrived to which the postponement of a levy was made, new light respecting the obligations of the city and the rights of the bondholders had dawned upon the city authorities. Although for twenty-two years all departments of the State Government had recognized the validity of the bonds, and the annual interest had been regularly paid, and more than half of them retired, it was then for the first time discovered that the Act of 1852, authorizing the issue of the bonds, was invalid, that its object was not sufficiently stated in the title, that the tax prescribed was neither equal nor uniform and, therefore, was in conflict with the constitution. The outcome of these new notions was the Premium Bond Act of March 6, 1876, passed by the Legislature at the solicitation of the municipal authorities.

This Act is a most remarkable piece of legislation. So far as the consolidated bonds are concerned it amounts to little less than open repudiation of the city's faith. It admits that the debt of the city as established by law is so large as to require for its liquidation taxation on property within its limits at the rate of at least five

The plan proposed was to exchange all recognized and valid bonds of the City of New Orleans, and of the Cities of Jefferson and Carrollton, for bonds to be known as premium bonds of the city; the latter to be of the denomination of $20, and dated September 1, 1875, each bearing five per cent interest from July 15th of that year, the interest and principal to be paid at the same time and not separately, and that time to be determined by chance in a lottery. One million of these bonds was to be divided into ten thousand series of one hundred bonds each. The ten thousand series were to be placed in a wheel and, in April and October of each year, as many series were to be drawn as were to be redeemed, according to a certain schedule adopted. The bonds composing the series thus drawn were to be entered for payment three months thercafter, principal and interest, and were to be receivable for all taxes, licenses and other obligations of the City. At the expiration of the three months, the bond numbers of the drawn series were to be placed in a wheel and 1,176 prizes, amounting to $50,000, were to be drawn and distributed. Under this plan, the city was to be released from payment of the principal and interest of its debt, except such portion as might be drawn in the lottery each year. Under this arrangement, it would depend upon the turn of a wheel and the drawing of a fortunate number whether a creditor would be paid in one year or in fifty years. The plan completely disregards all the conditions upon which the consolidated bonds were issued, and postpones indefinitely the payment of interest and principal, or rather leaves the time of payment within fifty years to be determined by chance.

The Act of 1852, as we have stated, declares that the city council shall, in January of every year, pass an ordinance for the levy and collection of a special tax to be applied to the payment of the interest on the consolidated bonds and to retire the principal. The Act of 1876 declares that no tax shall be levied by the city council that year or any year afterwards to pay the principal or interest on those bonds, or on any other than the premium bonds. The Act of 1852 declares that all ordinances, resolutions and acts of the city council of any year shall be null and void unless the ordinance imposing the special tax designated shall have been previously passed. The Act of 1876 declares that all laws

requiring or authorizing the city council to levy any tax for bonds or interest on bonds other than premium bonds are repealed; and, as if that was not sufficient evidence of the repudiation of former obligations, it forbids the courts to issue a mandamus to the officers of the city to levy and collect any interest tax other than for those bonds.

To meet the interest on them and for all other purposes of the City, the Act further provides that a tax of only one and one half per cent per annum shall be levied; and this limitation of the taxing power of the corporation is "Declared to be a contract not only with the holder of said premium bonds, but also with all residents and taxpayers of said city, so as to authorize any holder of said premium bonds to legally object to any rate of taxation in excess of the rate herein limited.'

have been made to limit the power of taxation of a municipal body, upon the faith of which contracts have been made, and by means of which alone they could be performed. However great the control of the Legislature over the corporation while it is in existence, it must be exercised in subordination to the principle which secures the inviolability of contracts."

The case of Von Hoffman v. Quincy, reported in 4th Wallace, 535 [71 U. S., XVIII., 403], is a leading one on this subject. The court there said: "That when a State has authorized a municipal corporation to contract, and to exercise the power of local taxation to the extent necessary to meet its engagements, the power thus given cannot be withdrawn until the contract is satisfied. The State and the corporation, in such cases, are equally bound."

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 a 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

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. Here, no remedy whatever is substituted for that of mandamus. The holders are denied all remedy. Louisiana v. New Orleans [ante, 132, 133].

Legislation of a State thus impairing the obligation of contracts made under its authority, is null and void; and the courts in enforcing the contracts will pursue the same course and apply the same remedies as though such invalid legislation had never existed. The Act of March, 1876, cannot, therefore, be permitted to restrict the power of the city authorities to levy the tax stipulated by the Act of 1852 to pay the interest on the consolidated bonds issued thereunder, and to retire the bonds.

If the provisions of this Act nullifying the pledges of the Act of 1852 are valid, the consolidated bonds are virtually destroyed; no taxation is allowed, to raise funds for them; their payment, therefore, would be so uncertain as to render them practically valueless. The chance with premium bonds offered in their place of a favorable turn of the wheel in a lottery would be a poor substitute for the levy of an annual tax for the payment of interest and principal. We shall not waste words upon the scheme thus developed to evade the just obligations of the city. Notwithstanding the declaration in its preamble that the Act seeks from the cred-on which a change of remedy, existing when a itors the indulgence necessary "for the public well-being and the maintenance of the public honor," it is, so far as the consolidated bonds are concerned, tainted with the leprosy of repudiation. It says to the creditors: "Take these premium bonds, and trust for payment within fifty years to your fortune in the lottery we of fer; no other way is left open to obtain a possible payment. No tax can be levied for your benefit. No compulsory writ can issue from the courts. Take these bonds or take nothing." The primal duty of the city authorities to fulfill punctually their obligations and maintain good faith is thus proclaimed to be no duty at all. We do not deny that the power of taxation belongs exclusively to the Legislative Department of the Government, that the extent to which it may be delegated to municipal bodies is a matter of discretion, and that in general the power may be revoked at the pleasure of the Legislature. But, as we said in the case of Wolff v. New Orleans, decided at the last Term [ante, 395], legislation revoking the power is subject to this qualification, which attends all state legislation, that it "Shall not conflict with the prohibitions of the Constitution of the United States, and among other things, shall not operate directly upon contracts of the corporation, so as to impair their obligation by abrogating or lessening the means of their enforcement. Legislation producing this latter result, not indirectly as a consequence of legitimate measures taken, as will sometimes happen, but directly by operating upon those means, is prohibited by the constitution, and must be disregarded, treated as if never enacted, by all courts recognizing the Constitution as the paramount law of the land. This doctrine has been repeatedly asserted by this court when attempts

It follows from the views expressed, that the judgment of the Supreme Court of the State of Louisiana must be reversed, and the cause be remanded to that court with instructions to reinstate the same and to remand it to the Third District Court of the Parish of Orleans, or its successor, to carry into effect the provisions of the 37th section of the Act of the Legislature approved February 23, 1852, and the 5th section of the supplementary Act approved the same day, embraced in Nos. 71 and 72 of the Acts of that year, as containing a valid contract between the City of New Orleans and the creditors holding the bonds issued under them; and to direct the District Court to issue a mandamus to the City of New Orleans and its authorities, annually to levy and collect the tax of $650,000 directed by the Acts, and to apply the same in the following order: first, to the payment of the current interest of the year; secondly, to the payment of arrearages of inter

est of former years until all the arrearages are embankment. The laws of Virginia authorize satisfied; and thirdly, to the purchase of bonds a recovery in such cases. having the shortest period to run.

CITY OF MANCHESTER, VIRGINIA, Piff. tention of the defendant below was that this

In an action against a city for an injury to plaint-ligence in regard to the locus in quo as an apiff, occurring by reason of an approach to a bridge being out of repair, the question whether the city had assumed such control of the approach as to make it responsible, is an inference of fact to be drawn from all the testimony by the jury, and not

But testimony was submitted to the jury tending to show that after the bridge and this approach to it had been built, or commenced, the limits of the City of Manchester had been extended so as to include this part of the bridge or approach, and that the City did work on it as a street or extension of the street into which it ran, and in many ways assumed such control of it as it did of other streets.

This testimony is in the record and was proper evidence to sustain the proposition that the city authorities had so acted in regard to this part of the highways of the City, as to make it responsible for a more careful attention to the dangerous condition of it than was given by them.

The counsel of defendant prayed several instructions in regard to the sufficiency of this evidence, which was refused by the court, and instead of those asked it gave the following:

"There are three questions for the jury, namely:

1. Whether a proper guard or protection had been provided at the point where the accident to the plaintiff ocurred; if there was not,

2. Whether the accident was in consequence of the absence of such proper guard or protection; and

3. If so, whether damage ensued to the plaintiff, and what amount of money shall be allowed as the measure of damage to him.

proach; depositing cinders on it; building a fence on the side of it; and otherwise expending money on it.

In our opinion, though strongly persuasive of the proposition that the City had assumed charge of the place, the evidence was not necessarily conclusive. The inference was one of fact and not of law, and was to be made, if at all, by the jury, under such proper instructions on the matter as the court should give, and not by the court alone. It was a mixed question of law and fact, proper for the jury, aided by the court.

For this error, the judgment of the Circuit Court is reversed and the case remanded, with instructions to set aside the verdict and grant a new trial.

THE STEAMSHIP FRANCIS WRIGHT,
Her Engine, etc., HUMPHREY E. WOOD-
HOUSE ET AL., Claimants.

(See S. C., "The Francis Wright," 15 Otto, 381-322.)
Jurisdiction of this court-refusal to find facts
-finding against evidence-incidental facts-
grounds of exceptions-seaworthy vessel.

1. Congress has the constitutional power to confine the jurisdiction of this court, on appeals in admiralty, to questions of law arising on the record. quest, to make a finding, one way or the other, on a 2. If the circuit court neglects or refuses, on requestion of fact material to the determination of the cause, when evidence has been adduced on the subject, an exception to such refusal presented by a bill of exceptions, may be considered here on appeal 3. So, too, if the court, against remonstrance,finds a material fact which is not supported by any evidence whatever, and exception is taken, a bill of exceptions may be used to bring up for review the ruling in that particular. Both these are questions of law.

If the jury believe from the evidence that a proper guard or protection to the highway was not provided; that the accident occurred in consequence, and that damage ensued to the plaintiff from the accident, then the court instructs the jury, that the City of Manchester is liable for the damage, unless it proves that the plaintiff sustained his injury through his own negli-brought here by a bill of exceptions. gence or want of care.

It will be seen that the court here takes from the jury entirely the question whether the City was responsible for the want of the guard or protection which was absent, and instructs them peremptorily that if such protection was wanting and the accident was caused by its absence, the City was liable.

We think it was for the jury to decide whether the City had made itself responsible.

The evidence on this subject had been properly submitted to the jury. Whether the City had assumed such control of the locus in quo as to make it responsible, was an inference of fact to be drawn from all the testimony by the jury, and not a question of law for the court.

the evidence on which the ultimate finding depends 4. Mere incidental facts, which are part only of occupy in the case the position of testimony rather than of facts. The refusal of the court to put such statements into the record, even though established by uncontradicted evidence, cannot properly be

5. A bill of exceptions ought to show the grounds relied on to sustain the objection presented, so that informed, as to the point to be decided. Proper it may appear that the court below was properly grounds of exceptions stated.

6. An agreement in a charter-party, that the vessel is seaworthy, is satisfied if the vessel was actually seaworthy when delivered into the possession of the charterers under the charter. [No. 102.]

Argued Mar. 8, 1882. Decided Apr. 17, 1882.

APPEAL from the Circuit Court of the United
York.

States for the Southern District of New

The case is stated by the court.
Messrs. Benedict, Taft & Benedict, and
Benjamin H. Brewster, for appellants.
Messrs. Butler, Stillman & Hubbard, for ap-
pellees.

Mr. Chief Justice Waite delivered the opinion of the court:

This evidence consisted of various things done by order of the authorities of the City of Manchester, such as paying the money on condemnation of the land for the use of the bridge; regulating the grade of the approach to the bridge and of the neighboring streets; continuing the Three questions have been presented on the pavement of the street into and upon this ap-argument of this appeal :

1. Whether Congress has the constitutional | er of the United States, actual jurisdiction under power to confine the jurisdiction of this court the power is confined within such limits as on appeals in admiralty to questions of law arising on the record;