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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 sixtyeight 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 costs 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 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 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; Osborn v. Bank of the United States, 9 Wheat. 738; Board of Liquidation v. McComb, 92 U.S. 531. 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 Liquidation v. McComb, supra. The acts of 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 injury.
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 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 bave 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 autborities 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 are 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 force. 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
the remedy, is directly obnoxious to the prohibition of the Constitution. ... The obligation of the contract between the parties in this case was to perform the promises and undertakings contained therein; the right of the plaintiff was to damages for the breach thereof, to bring suit and obtain judgment, to take out and prosecute an execution against the defendant till the judgment was satisfied, pursuant to the existing laws of Illinois. These laws giving these rights were as perfectly binding on the defendant, and as much a part of the contract, as if they had been set forth in its stipulations in the very words of the law relating to judgments and executions.”
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, hainper, 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. 933; 24 id. 169; 30 id. 137. Other stàtutes 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
involved in Hartman v. Greenhow, 102 U. S. 672. This court there, with only one dissenting voice, sustained the right of taxpayers, holding coupons issued under the act of 1871, to have them received in payment of taxes. Finally came the enactments of 1882, which have so changed the remedies existing when bonds were issued under the act of 1871 that taxpayers holding coupons of such bonds cannot use them in payment of taxes without expending more money to enforce a compliance with their contract than the coupons are worth.
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 subsequent 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.