holders of those bonds by the stipulation in the contract that the coupons at and after maturity should be receivable for all taxes, debts, &c., due the State. This statute prohibits revenue officers to receive any coupons, though unquestionably genuine, when tendered for and in discharge of taxes, &c., due the State, and requires the bearer of the coupon so tendered to pay his taxes in coin or other currency, which I think is plainly a repudiation or annulment of the State's contract."

. The clause of the Constitution which declares that no State shall pass any law impairing the obligation of contracts prohibits legislation thus affecting contracts between the State and individuals equally as it does contracts between individuals. Indeed, the greater number of cases in which the protection of the constitutional provision has been invoked against subsequent legislative impairment of contracts has been of those in which the State was one of the contracting parties. Where a State enters the markets of the world and becomes a borrower, she lays aside her sovereignty and takes upon herself the position of an ordinary civil corporation, or of an individual, and is bound accordingly. Davis v. Gray, 16 Wall. 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 concerned? The contract is that she will pay the amount of the coupon, and that it shall, at and after maturity, be receivable for taxes, dues, and demands of the State. And by its receivability is meant that it is to be taken by officers whom the State may authorize to receive money for its dues whenever tendered for them. By the obligation of a contract is meant the means which the law affords for its execution, the means by which it could, at the time it was made, be enforced. As said by the court in McCracken v. Hayward, "The obligation of a contract consists in its binding force on the party who makes it. This depends on the laws in existence when it is made; these are necessarily referred to in all contracts and form a part of them as the measure of the 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

of the court in Walker v. Whitehead, 16 Wall. 314, 317: "The laws which exist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it. This embraces alike those which affect its validity, construction, discharge, and enforcement. Nothing is more material to the obligation of a contract, than the means of its enforcement. The ideas of validity and remedy are inseparable, and both are parts of the obligation which is guaranteed by the Constitution against impairment."

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 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 a local court to test before a jury the genuineness of the coupon and its legal receivability for them; and in case he establishes these facts, of having a judgment to that effect certified to the treasurer of the Commonwealth, and the amount paid refunded out of money in the treasury, if there be any. To recover this judgment he must pay the 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.

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 a 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." 1 How. 311, 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 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. Complote effect must be given to it in all its spirit." 96 U. S. 432, 448.

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 forbidden 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

to pay out the money, contrary to what has just been decided with respect to language much more expressive in the legislation of Louisiana, of what avail can it be to the owner of the coupon if the treasurer refuse to refund the amount? There is no mode, according to the opinion of the majority, of coercing his action. No mandamus can issue, for that remedy and all compulsory process have been abolished.

Besides all this, as the coupons are mostly for small amounts, the costs of the suits to test their genuineness and receivability for taxes would be more than their value. Practically, the law destroys the coupons, and it was evidently intended to have that effect.

There is nothing at all similar to this, as seems to be intimated by the opinion of the majority, in the revenue system of the United States which forbids judicial proceedings to restrain the collection of a tax for its alleged invalidity, and only authorizes suit to recover back the money if paid under protest. Here the validity of the tax of Virginia is not assailed. The only question is, shall the officer of the State be required to receive in payment of the tax what she by her contract declared he should receive.

Tennessee v. Sneed, 96 U. S. 69, is cited as giving support to the decision in this case. I do not think that it gives it any support whatever. It does not sustain the doctrine that a State may abolish the right of mandamus to which a creditor at the time of the contract was entitled, as a mode of specifically enforcing it. The facts of the case are these: In 1838 the legislature of Tennessee passed a law, with respect to the bills and notes of the Bank of Tennessee, declaring that "the bills and notes of the said corporation, originally made payable, or which shall have become payable on demand in gold or silver coin, shall be receivable at the treasury, and by all tax-collectors and other public officers, in all payments for taxes or other moneys due the State."

The Supreme Court of the State decided that a proceeding by mandamus against an officer of the State to enforce the receipt of these bills for taxes was virtually a suit against the State, and could not be maintained prior to 1855, when an act was passed allowing suits to be brought against the State under