able discussion, and, for reasons which will hereinafter appear, this omission may create a false impression. The respect we entertain for the learned Justice in question impels us to now state fully the reasons which led us to the conclusion reached in the Tollman Case, and which now lead us to affirm the judgment of the trial court in the case at bar. As has already appeared, the Tollman Case presented a question identical with the question now before us. Unless that opinion is erroneous, we must in the case at bar affirm the judgment below, for we are unable to distinguish the two cases. The one point in which the cases differ is this: In the Tollman Case the alleged invalidity of the statute under which the bonds were issued was attacked under the principle laid down in the case of Debnam v. Chitty, supra. Here the attack is based on the fact that in Debnam v. Chitty the Supreme Court of North Carolina held the particular statute under which the bonds involved were issued not to have been enacted as is required by article 2 section 14 of the Constitution of North Carolina. The nature of the supposed defect will appear from either the opinion in the Tollman Case or in Debnam v. Chitty.

No reason suggests itself to us why the difference mentioned should discriminate the two cases. If the ruling of this court in the Tollman Case was sound, we are unable to perceive why the principle there invoked does not apply here. The bonds here involved were issued in 1888, the decision in Debnam v. Chitty was rendered in 1902. Prior to 1899 (Smathers v. Com'rs, 125 N. C. 480, 34 S. E. 554), so far as we have discovered, there had been no opinion of the Supreme Court of North Carolina which so much as intimated that the Constitution would ever receive the construction subsequently put upon it in Debnam v. Chitty. If the doctrine laid down in the long line of cases preceding and following Burgess v. Seligman, 107 U. S. 20, 2 Sup. Ct. 10, 27 L. Ed. 359, is correctly understood, such doctrine applies here as clearly as in a case where the erroneous state ruling is made concerning some other statute. That there is no peculiar effect to be given to a state court's decision concerning the particular statute which happens to be invoked in the federal court seems to us to necessarily follow from Carroll County v. Smith, 111 U. S. 556, 4 Sup. Ct. 539, 28 L. Ed. 517; Folsom v. Ninety-Six, 159 U. S. 611, 16 Sup. Ct. 174, 40 L. Ed. 278; Stanley County v. Coler, 190 U. S. 437, 23 Sup. Ct. 811, 47 L. Ed. 1126; Great Southern Hotel Co. v. Jones, 193 U. S. 532, 24 Sup. Ct. 576, 48 L. Ed. 778.

However, the chief argument made in behalf of plaintiff in error is based on this proposition: A decision by a state court of last resort to the effect that a legislative act was not validly enacted is binding in the federal court; although such decision is regarded by the federal court as an erroneous construction of the state Constitution; although such decision was rendered after rights based on the validity of such legislative enactment had accrued; and although such decision had not been foreshadowed or indicated by any previous decision of the state court antedating the accrual of such rights, if there had been no previous state court decision holding or indicating that the legislative act was a validly enacted law.

In the opinion of Mr. Justice Harlan in Wilkes County v. Coler, 180 U. S. 506, 519, 21 Sup. Čt. 458, 463, 45 L. Ed. 642, the following language is used:

"Observe that the issue is not as to the construction, meaning or scope of a statute, but whether that which purports to be a legislative enactment ever became a law for any purpose."

In the opinion, written by the same learned member of the court, in Great Southern Hotel Co. v. Jones, 193 U. S. 532, 546, 24 Sup. Ct. 576, 579, 48 L. Ed. 778, the following language is used:

"The only exception to the general rule announced in the above cases [Carroll County v. Smith, 111 U. S. 556, 4 Sup. Ct. 539, 28 L. Ed. 517; Anderson ▼. Santa Anna, 116 U. S. 356, 365, 6 Sup. Ct. 413, 29 L. Ed. 633; Pleasant Township v. Etna Co., 138 U. S. 67, 72, 11 Sup. Ct. 215, 34 L. Ed. 864; Folsom v. Ninety-Six, 159 U. S. 611, 627, 16 Sup. Ct. 174, 40 L. Ed. 278; Barnum v. Okolona, 148 U. S. 393, 13 Sup. Ct. 638, 37 L. Ed. 495] arises when the question is whether a particular statute was passed by the legislature in the manner prescribed by the state constitution so as to become a law of the state. Town of South Ottawa v. Perkins, 94 U. S. 260, 24 L. Ed. 154; Post v. Supervisors, 105 U. S. 667, 26 L. Ed. 1204; Wilkes County v. Coler, 180 U. S. 506, 520, 21 Sup. Ct. 458, 45 L. Ed. 642."

The question now presented is whether or not the expressions above quoted should be regarded by us as a binding opinion enunciating a doctrine of law, or as obiter dicta. Perhaps no rule is better settled, or more frequently inculcated by the Supreme Court, than that expressions found in opinions of courts which relate to a doctrine of law not necessarily in issue in the case then before the court are not to be regarded as deliberate and binding enunciations of such doctrines. Carroll v. Carroll's Lessee, 16 How. 275, 287, 14 L. Ed. 936. It is probable that there is no volume of the Supreme Court Reports in which the idea is not advanced that expressions of opinion not necessary to the determination of the case are to be regarded as dicta. We think it safe to say that every judge in writing opinions occasionally uses expressions which relate to points not necessarily in issue, and which do not represent either his own or his associates' studied and deliberate views. We feel, therefore, constrained to consider, first, if the expressions above quoted state views that are binding upon this court, and, if not, if they be such as we should follow.

In Wilkes County v. Coler, 180 U. S. 506, 21 Sup. Ct. 458, 45 L. Ed. 643, the Supreme Court had under consideration article 2, § 14, of the North Carolina Constitution, which forbids the enactment of a law allowing a county to impose a tax unless, inter alia, the yeas and nays on the second and third readings are entered in the journals. The opinion (page 513 of 180 U. S., page 460 of 21 Sup. Ct. [45 L. Ed. 642]) states that the journals of the two houses were put in evidence, and that it did not appear therefrom that the yeas and nays on the second and third readings of the Acts of 1868, 1879, and 1881, respectively, were entered on the legislative journals. It follows therefore, as an independent proposition, that these acts were not validly enacted. In other words, the state court rulings, subsequent to the issue of the bonds, holding these statutes to have been invalidly enacted, were necessarily considered by the United States Supreme Court proper constructions of the constitutional provision. Again, in the

opinion it is stated that the decision of the Supreme Court of North Carolina in State v. Patterson, 98 N. C. 660, 4 S. E. 350, was rendered before the issue of the bonds in question, and it is said:

"After the decision in State v. Patterson * * it might have been anticipated that the same court would hold as they did in the subsequent cases above cited that the entering of the yea and nay vote on the second and third readings of an act of the class mentioned in section 14 of article 2 of the state Constitution was a condition precedent that could not be dispensed with under any circumstances."

It seems beyond question, therefore, that the decision of the case before the court did not necessarily involve a distinction between state court rulings, which hold legislative acts to have been invalidly enacted, and state court rulings which hold state statutes to be void for some other supposed constitutional defect. The facts in the case brought it directly under the principle enunciated in many previous opinions, and did not raise a question as to the effect of state court rulings, holding a statute to have been invalidly enacted, made after the accrual of rights, not foreshadowed by state court rulings previously made, and repugnant to the construction which the federal court would independently put on the constitutional provision in question.

Although the language hereinabove quoted from Wilkes County v. Coler, supra, may be deemed an unmistakable enunciation of an opinion, yet, as it was used in regard to a feature of that case not necessarily in issue, most assuredly it could not properly be relied upon as a binding enunciation in such a case as Board v. Tollman, supra. The state court ruling, as to the validity of the enactment of the statute (Debnam v. Chitty), came after the accrual of rights, was not indicated by any ruling previous to the accrual of such rights, and is repugnant to our own construction of the constitutional provision. In Great Southern Hotel Co. v. Jones, 193 U. S. 532, 24 Sup. Ct. 576, 48 L. Ed. 778, there was nothing in issue relating in the remotest degree to the manner of the enactment of the statute. Consequently the expression from that opinion quoted above could not have related to any point in issue there. With great deference, it seems to us to follow from what has been said that we must regard the expressions in question as dicta.

Let us now very briefly examine Ottawa v. Perkins, 94 U. S. 260, 24 L. Ed. 154, and Post v. Supervisors, 105 U. S. 667, 26 L. Ed. 1204. (1) In these cases the state court had, years before the issue of the bonds, unmistakably construed the state constitutional provision as it was construed by the state court decisions rendered after the issue of the bonds. (2) The great subject of debate and the point in the mind of the writer of the majority opinion in the Ottawa Case was the propriety of so applying the doctrine of estoppel as to prevent the defendant below from proving that the act of Legislature was not enacted in the manner required by the state Constitution. It seems to us to follow that there was nothing in that case to make it necessary to decide that a settled course of decision of the courts of a state, long antedating the accrual of rights, is more binding when relating to one provision of the state Constitution than

when relating to other provisions of such Constitution. It is true that the language in the Ottawa Case, at page 268, may be read as indicating a belief that such distinction exists. But Mr. Justice Bradley had no reason for drawing such distinction. He was arguing against an alleged estoppel, and everything said by him would have been equally appropriate had the invalidity of the statute there in question arisen from some constitutional defect other than the manner of its enactment. Of Post v. Supervisors, supra, little need be said. It relates to the statute discussed in the Ottawa Case, and arose under the same facts. In the summary of the rulings in the Ottawa Case, as stated in Post v. Supervisors, is the following:

"An act of the Legislature of a state, which has been held by its highest court not to be a statute of the state, because never passed as its Constitution requires, cannot be held by the courts of the United States, upon the same evidence, to be a law of the state."

If this language had been used in a case where the construction given the state Constitution by the state court had been regarded by the United States Supreme Court an erroneous and unwarranted perversion of the state Constitution, and if such construction had been announced (without previous intimation) after the accrual of rights, it would necessarily be decisive of the question we propose to discuss. But in the case then before the federal Supreme Court, the state constitutional provision had been construed by the state court before the issue of the bonds as it was construed after their issue. Hence we do not perceive the propriety of treating the language above quoted as necessarily applicable to the question we are concerned with. Let us now consider the question on its merits. That the federal court must, in proper cases, construe state constitutional provisions independently will, of course, not be denied. In the opinion in Great Southern Co. v. Jones, 193 U. S. 544, 545, 24 Sup. Ct. 576, 48 L. Ed. 778, are cited numerous Supreme Court cases in which this proposition is stated, and in which it was necessary to decide that this rule is the correct one. As a matter of reason simply, we are unable to perceive the force of the distinction between an erroneous state court ruling that a statute is void because not enacted in the manner required by some provision of the state Constitution, and an erroneous state court ruling that a statute is void because it contravenes some provision of the state Constitution other than that relating to the mere manner of enacting statutes. We find it difficult to see why the clause in a state Constitution which specifies the method of enacting statutes should be given, in the federal courts at least, a more controlling force, or greater effect, than other provisions of the same Constitution. But, even if it be conceded that the manner of enacting statutes is of greater importance than the matter contained in statutes, we conceive that the relative importance of the two classes of constitutional provisions is not the criterion of the power, or of the duty, of the federal courts. The very foundation of the rule under which the federal courts independently construe the ordinary provisions of state Constitutions, and refuse to follow erroneous rulings of the state courts, as we understand it, is the justice and propriety of prevent

ing the courts of a state from retroactively impairing the obligation of contracts. See Rowan v. Runnels, 5 How. 134, 139, 12 L. Ed. 85, in which the effect of a provision of the Constitution of Mississippi was under consideration, and in which Chief Justice Taney said:

"But we ought not to give them [state decisions] a retroactive effect, and allow them to render invalid contracts entered into with citizens of other states, which in the judgment of this court were lawfully made. If such rule were adopted and the comity due to state decisions pushed to this extent, it is evident that the provision in the Constitution of the United States, which secures to the citizens of another state the right to sue in the courts of the United States, might become useless and nugatory."

We can conceive of no difference in the effect of erroneous state court rulings in impairing the obligation of contracts, whether such ruling be that a statute was not properly enacted or that the statute is in some other respect violative of the state Constitution. If the rules of comity do not forbid the federal courts to repudiate the rulings of the state courts in the one class of cases, we cannot perceive why such rules should have such effect in the other class. If the purpose and intent of the provision in the federal Constitution, which gives to certain citizens of the United States the right to resort to the federal courts, was to furnish to such litigants a shield against sectional or local prejudice, it seems to follow that this purpose and intent must control as fully and as effectually in one class of cases as in the other. If the federal Constitution be supreme, we cannot conceive that an erroneous state court decision retroactively impairing rights can properly be allowed to override its intent, no matter what provision of a state Constitution is the subject of such decision.

We here quote in part some of the language, used in other opinions, which was quoted in the opinion in Great Southern Hotel v. Jones,

supra:

From Carroll County v. Smith:

"In the courts of the United States

串

the plaintiff has a right,

under the Constitution of the United States, to the independent judgment of those courts. * * It was to that very end that the Constitution granted to citizens of one state, suing in another, the choice of resorting to a federal tribunal."

From Burgess v. Seligman:

"As, however, the very object of giving to the national courts jurisdiction to administer the laws of the states in controversies between citizens of different states was to institute independent tribunals which it might be supposed would be unaffected by local prejudices and sectional views, it would be a dereliction of their duty not to exercise an independent judgment in cases not foreclosed by previous adjudication."

In the Tollman Case the validity of the enactment of the statute in question had not been foreclosed by adjudication previous to the accrual of rights. And in that case this court did not desire to be guilty of a "dereliction of duty." As every reason which authorizes a federal court in any case to independently determine the constitutionality of a state statute existed in the Tollman Case, we conceive that there was there no escape from the duty of an independent examination and conclusion.

On the merits we do not regard it as necessary to add to what was