In other words, to quote the language of Professor Pomeroy in his work on 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, "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 rst case, that the defaulting party do exactly wha. Le undertook to do; and in the second case, that the defaulting party pay the sum of money fixed as a compensation for his delict." Secs. 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 January 14 and April 7, 1882, deprives the holder of the coupon of this remedy, and in lieu of it gives him the barren privilege, after paying the taxes, of suing in a local court to test before a jury the genuineness of the 797] coupon and its legal receivability for them, and in case he establishes these facts, of having a judgment to that effect certified to the Treasurer of the Commonwealth, and the amount paid refunded out of money in the Treasury, if there be any. To recover this judgment, he must pay the costs of the proceeding, including the fees of witnesses and jurors, and of the clerk, sheriff and other officers of the court. This is a most palpable and flagrant impairment of the obligation of the contract. No legislation more destructive of all value to the contract is conceivable, unless it should absolutely and in terms repudiate the coupon as a contract at all. It is practical repudiation. or encumbered it with conditions that rendered it useless or impracticable to pursue it." 1 How., 317. In 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 im paired 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 How., 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 is one of the highest duties of this court to take care the prohibition (against the impairment of contracts) shall neither be evaded nor frittered away. Complete effect [798] must be given to it in all its spirit," 96 U. S., 448 [XXÏV., 764]. 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 subsequert law of the State which so affects that remedy as substantially to impair and lessen the value of the contract, is forbidden by the Constitution, and is, therefore, void." 96 U. S., 607 [XXIV., 798]. Mr. Justice Clifford, also lately sitting with us, in a concurring opinion in the same case, said: 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 [799]. "When And only two terms ago in the case of La. v. New Orleans, this court said, without a dissenting voice, that "The obligation of a contract, in a 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 U. S., 206 [XXVI., 133]. How can it be maintained, in the face of these decisions, that the legislation of January In Bronson v. Kinzie this court, speaking by 14, and April 7, 1882, does not impair the obligaChief Justice Taney, said: "It is difficult, per- tion of the contract under the Funding Act? haps, to draw a line that would be applicable It annuls the present receivability of the couin all cases between legitimate alterations of the pon; it substitutes for the specific execution of remedy and provisions which, in the form of the contract, a protracted litigation; and when remedy, impair the right. But it is manifest the genuineness of the coupon and its legal rethat the obligation of a contract, and the rights ceivability for taxes are judicially established, of a party under it, may in effect be destroyed its payment is made dependent upon the existby denying a remedy altogether, or may be seri- ence of money in the Treasury of the State. If ously impaired by burdening the proceedings the language of the Act, declaring that when with new conditions and restrictions, so as to the genuineness of the coupon and its receivamake the remedy hardly worth pursuing. And bility for taxes are established, the taxes paid by no one, we presume, would say that there is its holder shall be refunded out of the first monany substantial difference between a retrospect-ey in the Treasury in preference to other claims, ive law, declaring a particular contract or class be deemed a sufficient appropriation to authorof contracts to be abrogated and void, and one ize the treasurer to pay out the money, contrary which took away all remedy to enforce them, to what has just been decided with respect to [799] [800] language much more expressive in the legisla- Besides all this, as the coupons are mostly given as a substitute is so embarrassed with con There is nothing at all similar to this, as receive? The case of Tenn. v. Sneed, 96 U. S., 69 [XXIV., 610], is cited as giving support to the decision in this case. I do not think that it gives it any support whatever. It does not sustain the doctrine that a State may abolish the right of mandamus ic 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 the same rules and regulations that govern actions between private parties. In 1865 this Act was repealed. The creditor, when the contract was made acquired, therefore, no right to the writ of mandamus, for it was not then an existing remedy, and so Mr. Justice Hunt, in delivering the opinof the court, said: "The question discussed by Mr. Justice Swayne in Walker v. Whitehead, 16 Wall., 314 [83 Ü. S., XXI., 357], of the preservation of the laws in existence at the time of the making of the contract, is not before us. The claim is of a subsequent injury to the contract." And the court, after referring to the numerous cases of a change of remedies, says: "The rule seems to be that in modes of proceeding and of forms to enforce the contract, the Legislature has the control and may enlarge, limit or alter them, provided that it does not deny a remedy, or so embarrass it with restrictions and conditions as seriously to impair the value of the right." Here the original remedy possessed by the coupon holder is abolished, and that which is That there is any adequate and efficacious 801] remedy substituted for the one in existence when the Funding Act was adopted, cannot, it seems to me, be seriously affirmed. The remedy originally existing was effective. No officer could refuse to receive the coupon without subjecting himself to personal liability. After a tender, no valid sale could be made for the taxes. And the creditor could invoke the compulsory process of the courts to secure a specific performance. Now all is changed. A law which practically destroys the value of the coupons is sustained. The officer is not bound to receive it, in the sense that he cannot be compelled to take it. He can enforce the payment of taxes in money; he can sell property, if necessary, to collect them; he can wholly ignore the coupon unless the holder should foolishly consent to incur double the amount in costs to establish by a jury trial its genuineness and legal receivability for taxes. I find myself bewildered by the opinion of I am of opinion that the judgment of the 302] and the cause remanded with instructions to | and individuals; and that a State has no more James H. McKenney, Clerk, Sup. Court, U. S. 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 Funding Act of March 30, 1871, constitute contracts within the meaning of that clause of the Federal Constitution which forbids a State from passing any law impairing the obligation of contracts; That the holder of a coupon, so issued, against whom state taxes are assessed, is entitled under his contract to have it applied in payment of 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 re-affirm Bronson v. Kinzie, 1 How., 311, where, among other things, 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 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 N. J. v. Wilson, 7 Cranch, 164, 166, 803] where it is declared that the contract clause of the Constitution "Extends to contracts to which a State is a party, as well as to contracts between individuals;" or in Bank v. Billings, 4 Pet., 514, 560, where this court, speaking by Chief Justice Marshall, said that it had been "Settled that a contract entered into between a State and an individual is as fully protected by the 10th section of the 1st article of the Constitution, as a contract between two individuals;" or in Green v. Biddle, 8 Wheat., 1, 92, where it was said, through Mr. Justice Washington, "That the Constitution of the United States em braces all contracts, executed or executory, whether between individuals or between a State power to impair an obligation into which she herself has entered than she can the contracts of in dividuals;" or in Woodruff v. Trapnall, 10 How., 190, 207, where, speaking by Mr. Justice McLean, the court declared that "A State can no more impair, by legislation, the obligation of its own contracts, than it can impair the obligation of the contracts of individuals;" or in Wolff v. New Orleans, 103 U. S., 358, 367 [XXVI., 395, 399], where, speaking by Mr. Justice Field, this court unanimously held "That the prohibition of the Constitution, against the passage of laws impairing the obligation of contracts, applies to the contracts of States and to those of its agents under its authority, as well as to contracts between individuals." These propositions meet my hearty approval, as well because they rest upon a sound interpretation of the Constitution, as because they have been long established by the decisions of this court. But 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 equiva lent 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 upheld in its application to the bonds and coupons issued under the Funding Act, it is difficult to perceive that the contract clause of the Constitution is of the slightest practical value for the preservation of the rights of parties dealing with a State. Indeed, the Act, in its necessary operation, as directly and effectually impairs the commercial value of the bonds and the taxpaying power of the coupons thereunto annexed, as would a statute which, in terms, repudiated them and forbade the receipt of the coupons, under any circumstances, for taxes or demands due to the Commonwealth. 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 so offered, 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 cancel 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 Con [804] stitution of Virginia, adopted in 1870, gave, in | April 7, 1882, provides that no writ of manda- I proceed to inquire whether those rights have been impaired by the Act of Jan. 14, 1882. The 1st 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 2d section provides that he shall, at the same time, re[805] quire the taxpayer to pay his taxes in coin, legal tender notes or national bank-bills and, upon such payment, give him a receipt for the same; and, in case of a refusal so to pay, the officer is directed to collect the taxes as all other delinquent taxes are collected, that is, by levy and distraint. mus shall issue from the Supreme Court of Appeals "In any case of the collection or attempt to collect revenue or compel the collecting officers to receive anything in payment of taxes other than as provided in chapter 41, Acts of Assembly, approved January 26, 1882, or in any case arising out of the collection of revenue in which the applicant for the writ of process has any other remedy adequate for the protection and enforcement of his individual right, claim and demand, if just." This court waives any determination of the question whether the Act of April 7, 1882, repeals so much of that of Jan. 14, 1882, as relates to mandamus. But, referring to the remedy given by the 1st, 2d and 3d sections of the latter Act, it holds that there is no substantial difference between the remedy given by those sections and the remedy given by mandamus in the same Act; further, which is vital in this case, that the obligation of the contract is not impaired by the changes made, by the Act of Jan. 14, 1882, in the remedies for its enforcement, in case the collector refuses to accept, in payment of taxes, coupons, when offered for that purpose. It may be observed here that when the taxpayer elects to stand upon the terms of his contract, and refuses to pay his taxes in coin, legal tender notes, or bank-bills, the Act, curiously enough, does not direct the officer to return the coupons so tendered, but requires him to deliver them to the judge of the county court of the county or the hustings court of the city in Here is une radical difference between the mawhich such taxes, debts or demands are payable. jority of my brethren and myself. To my mind, Thereupon the taxpayer is at liberty to file I say it with all respect for them, it is so enhis petition in said county court against the tirely clear that the change in the remedies has Commonwealth, and have a jury impaneled to impaired both the obligation and the value of try whether the coupons are "genuine, legal the contract, that I almost despair of making it coupons, which are legally receivable for taxes, clearer by argument or illustration. debts and demands," with right of appeal by It is conceded that, under the contract, the either party to the Circuit Court and the Court taxpayer is entitled to have his coupon received of Appeals. "If it be finally decided in favor for his taxes when tendered, while under the of the petitioner that the coupons tendered by Act of Jan. 14, 1882, the collector is forbidden him are genuine, legal coupons, which are le-to so receive it; and the taxpayer, in order to gally 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." protect his property against levy or distraint and relieve it from the incumbrance created by the assessment of taxes, must pay themin money, and then, if he wishes to get it back, prove to the satisfaction of twelve jurymen the genuineness and legal receivability of his coupons. 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 The alteration made by the Act of Jan. 14, when it was made, the taxpayer is entitled, in 1882, of the remedy by mandamus is this: if a the first instance, to enforce the receipt of his mandamus is applied for to any court of the coupons for taxes by mandamus, the sole remCommonwealth, the collector shall make re-edy then given to effect that result; while under turn "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 rep[800] resenting the State must require proof of the genuineness and legality of the coupons tendered. A right of appeal is given to the Circuit Court and the Supreme Court of Appeals. If the petitioner finally succeeds, then the court is required to issue a mandamus for the receipt of the coupons for the taxes assessed. Thereupon the Treasurer of the Commonwealth Lust refund to the taxpayer the amount theretofore paid by him out of any money in the Treasury, in preference to all other claims. The Act of 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 Loids a bond for 808] =09] $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 same 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 the jury trial prescribed by that Act, obtains a verdict establishing their genuineness and legal receivability for taxes and, in the event of an appeal, secures an affirmance of the judgment in his favor. The verdict and judgment as to one coupon do not, under that Act, establish the genuineness of other coupons of the same bond. Thus it is demonstrably clear that the taxpayer, before he can enforce the receipt of the entire sixty-eight coupons of one bond for $100, may be required to have at least as many jury trials, covering precisely the same issues, as there may be occasions to use coupons in payment of taxes. Certainly, the taxpayer, if not an attorney, cannot safely go before the jury without an attorney to represent him. It is, therefore, almost absolutely certain that his attorney's fee and the cost for each jury trial will be several times greater than the amount of the coupons involved. The result, then, is that he will lose more by presenting his coupons in payment of his taxes than by making an absolute gift of them to the Commonwealth. And the remedy thus given by the statutes, passed after the contract was made for the enforcement of the taxpayer's admitted right to have his coupon received for taxes, when of fered, 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, hoid 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 case cited, either by the court or by my brother Field, but that the new remedy is adequate and efficacious, not for the preservation and enforcement, but 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 any different view could be entertained. It should be remembered that the court places its decision upon the ground that the change in the remedy has not, in legal effect, impaired the obligation of the contract, and not upon the ground that this suit is, within the meaning of the Federal Constitution, a suit against the State. Nor could it be placed upon the latter ground without overturning the settled doctrines of this court. Davis v. Gray, 16 Wall., 203 [83 U.S., XXI., 447]; Osborn v. Bank, 9 Wheat., 738;! Board of Liquidation v. McComb, 92 U. S., 531 [XXIII., 623]. It is a case in which a plain official duty, requiring no exercise of discretion, is to be performed, and where performance in' the mode stipulated by the contract is refused. In such cases, any person who will sustain personal injury by such refusal may have a mandamus to compel its performance. Board of The Acts of Liquidation v. McComb, supra. 1882, in their application to the bonds issued under that of 1871, are unconstitutional and void, because they impair the obligation of the contract between the parties. The way is, therefore, clear for the court to apply the remedy allowed by the statute when the contract was made. That remedy is, in law, unaffected by subsequent unconstitutional legislation. The defendant cannot plead such legislation as an excuse for the non-performance of a plain official duty, requiring no exercise of discretion, because, as held in Board of Liquidation v. McComb, supra, in accordance with settled principles, an unconstitutional law will be treated by the courts as null and void; and if the officer plead the authority of an unconstitutional law for the non-performance or violation of his duty, that will not prevent a mandamus from being issued, or an injunction being granted when that is necessary to prevent threatened in jury. One word in this connection about Tennessee v. Sneed, 96 U. S., 69 [XXIV., 610], to which the court refers as authority for the present decision. In the brief of the Attorney-General of Virginia the names of the Justices who participated in that decision are given, and mine is placed among the number. This is an error into which counsel naturally fell by reason of the fact that there are cases in the same volume preceding Tennessee v. Sneed, and cases in the previous volume of our reports, in the decision of which I participated. In fact, however, that case was determined, and the decision therein announced, before I became a member of this court. Touching Tennessee v. Sneed, I may say that it does not militate against the views I have expressed. Upon the face of that decision 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 [83 U. S., XXI., 357], 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." [810] |