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they will have to be disposed of according to
promise is void. When, however, for a legal
Indeed, the court of appeals does not follow what it calls the logic of the decision in McGahey v. Virginia to its necessary result. The scope of its argument is that if a part of the consideration be illegal, the whole contract fails. But the promise on the part of the state, written into these coupons and authorized by the act of 1871, was a promise to pay so much money and to receive such promise in satisfaction of taxes. In refer ence to this, the court of appeals, in its opinion in this case, uses this language:
"We do not assail that act as unconstitutional as an entirety. We simply hold that the coupon feature of the act, the coupon contract, which is readily separable from the rest of the act, is repugnant to sections 7 and 8 of the Constitution of Virginia, and is therefore an illegal contract. The validity of the bonds issued under and by authority of said acts of March 30, 1871, and March 28, 1879, is not denied; nor is it denied that the bondholders are entitled to the interest on the bonds, to be collected in the ordinary way; but we do deny that it can be collected through the medium of the illegal coupon, which has been most aptly designated the 'cut worm of the treasury.' 90 Va. 597
Further, the authorities to which it refers make against the conclusion which it reaches. Thus, at the end of its argument, it quotes as a principal authority the following:
"The concurrent doctrine of the text-books on the law of contracts is that if one of two considerations of a promise be void merely, the other will support the promise; but that if one of two considerations be unlawful the
730: 1 Parsons on Contracts, 456; 1 Parsons
"And in the same case it is said: 'Whilst
This decision declares that when the consideration is illegal, the promise fails; and to like effect are the other authorities cited. But in the case at bar there is no illegality in the consideration. That was furnished by the bondholder in the old bond, and that
bond was the sole consideration. It is no
where suggested that there was any vice or
by the receipt of the coupon, there is no diffi- | the contract can only be impaired within the culty in separating that part of the contract meaning of this clause in the Constitution, from the balance. And as said by the su- and so as to give this court jurisdiction on preme court of Ohio: "Whenever the unlaw-writ of error to a state court, by some subful part of the contract can be separated sequent statute of the state which has been from the rest, it will be rejected and the re-upheld or effect given it by the state court. mainder established." Lehigh Water Co. v. Easton, 121 U. S. 388 [30: 1059]; New Orleans Water Works Co. v. Louisiana Sugar Refining Co. 125 U. S. 18 [31: 607]; Central Land Co. v. Laidley, 159 U. S. 103, 109 [40: 91, 94]. If the judgment of the state court gives no effect to the subsequent law of the state, and the state court decides the case upon grounds independent of that law, a case is not made for review by this court, upon any ground of the impairment of a contract. The above cited cases announce this principle."
To like effect are the decisions of this, court. In United States v. Bradley, 10 Pet. 343 [9: 448], suit was brought on a paymaster's bond, and it was claimed that as some of the stipulations were in excess of those required by the statute, and illegally inserted, the whole bond was void. But the court overruled the contention, saying (p. 360 ):
"That bonds and other deeds may, in many cases, be good in part and void for the residue, where the residue is founded in ille- It is true the court of appeals in its opingality but not malum in se, is a doctrine well ion only incidentally refers to statutes founded in the common law, and has been passed subsequent to the act of 1871, and recognized from a very early period. Thus, places its decision distinctly on the ground in Pigot's Case, 11 Coke, 276, it was said that that act was void in so far as it related that it was unanimously agreed in 14 Hen. to the coupon contract, but at the same time VIII., 25, 26, that if some of the covenants it is equally clear that the judgment did give of an indenture, or of the conditions indorsed effect to the subsequent statutes, and it has upon a bond are against law, and some are been repeatedly held by this court that in re- good and lawful, that in this case the cove-viewing the judgment of the courts of a state nants or conditions which are against law we are not limited to a mere consideration of are void ab initio and the others stand good." the language used in the opinion, but may So in Gelpoke v. City of Dubuque, 1 Wall. examine and determine what is the real sub221 [17: 531], this court said, in reference to stance and effect of the decision. a similar contention in a suit on a contract made by the officials of the city of Dubuque (p. 222 [17: 520]):
"We have not, therefore, considered the questions which they present. They relate to certain provisions of the contract which are claimed to be invalid. Conceding this to be so, they are clearly separable and sevarable from the other parts which are relied upon. The rule in such cases, where there is no imputation of malum in se, is that the bad parts do not affect the good. The valid may be enforced."  We see no reason to change the views heretofore and often expressd by this court, and reiterate, as said in 135 U. S. 668 [34: 306], "this question, therefore, must be considered as foreclosed and no longer open for consideration."
Fourthly. It is urged that this court has no jurisdiction of this case for the reason that the court of appeals in its opinion does not consider the subsequent legislation passed by the state with the view of impairing the contract created by the act of 1871, but limits itself to a consideration of that act, and adjudges it void. In support of this proposition the rule laid down in New Orleans Water Works Co. v. Louisiana Sugar Ref. Co. 125 U. S. 18, 38 [31: 607,615], reaffirmed in Huntington v. Attrill, 146 U. S. 657, 684 [36: 1123,1134], and Bacon v. Teras, 163 U. S. 207, 216 [41: 132, 136], is cited.
In this last case the doctrine is summed up in the following statement:
"Where the Federal question upon which the jurisdiction of this court is based grows out of an alleged impairment of the obligation of a contract, it is now definitely settled that
Suppose, for illustration, a state legislature should pass an act exempting the property of a particular corporation from all taxation, and that a subsequent legislature should pass an act subjecting that corporation to the taxes imposed by the city in which its property was located, and that, on the first presentation to the highest court of the state of the question of the validity of taxes levied under and by virtue of this last act, that court should in terms hold these city taxes valid notwithstanding the general clause of exemption found in the prior statute. In that event no one would question that this court had jurisdiction to review such judgment, and inquire as to the scope of the contract of exemption created by the first statute. Suppose, further, that this court should hold that the first statute was valid and broad enough to exempt from all taxation, city as well as state, and adjudge the last act of the legislature void as in conflict with the prior; and that thereafter the city should again attempt to levy taxes upon the corporation, and that upon a challenge of those taxes the state court should say nothing in respect to the last act, but simply rule that the original act exempting the property of the corporation from taxation was void, could it fairly be held that this court was without jurisdiction to review that judgment, a judgment which directly and necessarily operated to give force and effect to the last statute subjecting the property to city taxes? Could it be said that the silence of the state court in its opinion changed the scope and effect of the decision? In other words, can it be that the mere language in which the state court phrases its opinion takes from or adds to the jurisdic
tion of this court to review its judgment? | in which it is said that the point raised must Such a construction would always place it in appear on the record, and that the particuthe power of a state court to determine our lar act of Congress, or part of the Constitujurisdiction. Such, certainly, has not been tion supposed to be infringed by the state the understanding, and such certainly would law, ought to be pointed out, it has never seem to set at naught the purpose of the *Fed- been held that this should be done in express eral Constitution to prevent a state from words. But the true and rational rule is, nullifying by its legislation a contract which that the court must be able to see clearly, it has made, or authorized to be made. In from the whole record, that a certain proviHickie v. Starke, 1 Pet. 94-98 [7: 67-69], sion of the Constitution or act of Congress Chief Justice Marshall, delivering the opin- was relied on by the party, who brings the ion of the court, said: writ of error, and that the right thus claimed by him was denied. It is said, however, that it is not the validity of the act of 1860 which is complained of by the plaintiffs, but the construction placed upon that act by the state court. If this construction is one which violates the plaintiff's contract, and is the one on which the defendants are acting, it is clear that the plaintiffs have no relief except in this court, and that this court will not be discharging its duty to see that no state legislature shall pass a law impairing the obligation of a contract, unless it takes jurisdiction of such cases.'
"In the construction of that section (the twenty-fifth) the court has never required that the treaty or act of Congress under which the party claims, who brings the final judgment of a state court into review before this court, should have been pleaded specially or spread on the record. But it has always been deemed essential to the exercise of jurisdiction in such a case that the record should show a complete title under the treaty or act of Congress, and that the judgment of the court is in violation of that treaty or act." And in Wilson v. The Blackbird Creek Marsh Company, 2 Pet. 245, 250 [7: 412, 414], the same Chief Justice also said:
There are also some cases involving alleged contract exemptions from taxation "But we think it impossible to doubt that which are worthy of notice. In Given v. the constitutionality of the act was the ques-Wright, 117 U. S. 648, 655 [29: 1021, 1024], tion, and the only question, which could the plaintiff in error claimed to hold real have been discussed in the state court. That estate exempt from taxation by virtue of a question must have been discussed and decid- contract alleged to have been contained in a ed. This court has repeatedly de- law of the New Jersey colonial legislature cided in favor of its jurisdiction in such a passed August 12, 1758. The validity of this case. Martin v. Hunter's Lessee, 1 Wheat. exemption had been sustained in New Jersey 304 [4: 97]; Miller v. Nicholls, 4 Wheat. 311 v. Wilson, 7 Cranch, 164 [3: 303], notwith[4: 578]; and Williams v. Norris, 12 Wheat. standing which, for about sixty years before 117 [6: 571], are expressly in point. They the assessment in question was laid, taxes had establish as far as precedents can establish anything, that it is not necessary to state in terms on the record that the Constitution or a law of the United States was drawn in question. It is sufficient to bring the case within the provisions of the twenty-fifth section of the judicial act, if the record shows that the Constitution or a law or a treaty of the United States must have been misconstrued, or the decision could not be made. Or, as in this case, that the constitutionality of a state law was questioned, and the decision has been in favor of the party claiming under such law."
In Satterlee v. Matthewson, 2 Pet. 380, 410 [7: 458, 468], Mr. Justice Washington observed:
If it sufficiently appear from the record itself, that the repugnancy of a statute of a state to the Constitution of the United States was drawn into question, or that *that question was applicable to the case, this court has jurisdiction of the cause under the section of the act referred to; although the record should not, in terms, state a misconstruction of the Constitution of the United States, or that the repugnancy of the statute of the state to any part of that Constitution was drawn into question."
In Bridge Proprietors v. Hoboken Land & Improv. Co. 1 Wall. 116, 143 [17: 571, 576], an act passed by the state in 1860 was claimed to be in violation of a contract created by an act of 1790, and it was said:
"Now, although there are other decisions 388
been regularly assessed upon the land and
"Where it is charged that the obligation of
In Yazoo & M. Valley Railroad Co. v. Thomas, 132 U. S. 174, 184 [33: 302, 306], the plaintiff in error was given by its charter, which became a law on February 17, 1882, a certain exemption from taxation. In 1888 the legislature passed an act for the collection of taxes for past years, which by its terms was not applicable to railroad companies exempt by law or charter from taxation. The supreme court of the state held that the plaintiff was not entitled to the benefit of the exemption named in the acts of 1888. The jurisdiction of this court to review that judgment was challenged. But the court, by the Chief Justice, said:
"Although by the terms of the act of 1888
the taxes therein referred to were not to be levied as against a railroad exempt by law or charter, yet the supreme court held that this company is not exempt, and is embraced within the act; so that if a contract of exemption is contained in the company's charter, then the obligation of that contract is impaired by the act of 1888, which must be considered, under the ruling of the supreme court, as intended to apply to the company. The result is the same, although the act of 1888 be regarded as simply putting in force revenue laws existing at the date of the company's charter, rather than itself imposing taxes, for if the contract existed those laws became inoperative, and would be reinstated by the act of 1888. The motion to dismiss
the writ of error is therefore overruled."  In Wilmington & Weldon Railroad Co. v. Alsbrook, 146 U. S. 279, 293 [36: 972, 978], the state court, conceding the validity of a contract of exemption from taxation, held that certain property was not within its terms, and on this ground a motion to dismiss the writ of error was made by the defendant. In respect to that the Chief Jus
"The jurisdiction of this court is questioned, upon the ground that the decision of the supreme court of North Carolina conceded the validity of the contract of exemption contained in the act of 1834, but denied that particular property was embraced by its terms; and that, therefore, such decision did not involve a Federal question.
"In arriving at its conclusions, however, the state court gave effect to the revenue law of 1891, and held that the contract did not confer the right of exemption from its operation. If it did, its obligation was impaired by the subsequent law, and as the inquiry whether it did or not was necessarily directly passed upon, we are of opinion that the writ of error was properly allowed."
In Mobile & Ohio Railroad Co. v. Tennes see, 153 U. S. 486, 492, 493 [38: 793, 796], Mr. Justice Jackson, reviewing prior deci sions, said:
"It is well settled that the decision of a
United States Treasury notes, national bank currency, and nothing else." This command was re-enacted in the Code of 1887. Under these statutes the state demanded payment of its taxes in money and repudiated its promise to receive coupons in lieu thereof. True, in its opinion, the court of appeals did not specifically refer to these statutes, but by declaring that the contract provided for in the act of 1871 was void it did give full force and effect to them, as well as to the general revenue law of the state. Now, it is one of the duties cast upon this court by the Constitution and laws of the United States to inquire whether a state has passed any law impairing the obligation of a prior contract. No duty is more solemn and imperative than this, and it seems to us that we should be recreant to that duty if we should permit the form in which a state court expresses its conclusions to override the necessary effect of its decision.
It must also be borne in mind that this is
state court holding that, as a matter of con-
In the case before us, after the act of 1871 and in 1872, the general assembly passed an act requiring that all taxes should be paid in "gold or silver coin, United States Treasury notes, or notes of the national banks of the United States;" and "again, in 1882, a further statute commanding tax collectors to receive in payment of taxes "gold, silver,
cision in the court of appeals the general assembly of the state of Virginia passed an act (Acts Gen. Assembly, 1893-94, p. 381) in terms repealing the statute authorizing this particular form of suit; that no state can be sued without its own consent; that such consent has thus been withdrawn, and therefore the whole proceeding abates and this suit must be dismissed. It is true that such an
act was passed, and that in Maury v. Com- | 314, 317 [21: 357, 358]), but it is equally monwealth, 92 Va. 310, its validity was sus- well settled that changes in the forms of actained by the court of appeals, but the judg- tion and modes of proceeding do not amount ment in this case did not go upon the effect to an impairment of the obligations of a conof that repealing statute. It was not noticed tract, if an adequate and efficacious remedy in the opinion, and the decision was not that is left." Upon this ground it was held that the suit abate by reason of the repeal of the the new remedy being adequate and efficastatute authorizing it, but that the judg- cious, the taking away of the old right of ment of the trial court be reversed, and a proceeding by mandamus was valid, and new judgment be entered against the peti- the coupon holder must be content with the tioner for costs. If the action had abated it new remedy. Now the statute *creating this] was error to render judgment against him new remedy was, as we have seen, repealed for costs. by the act of 1894. That act does not in terms revive the former remedy. Indeed, the right to use the writ of mandamus in tax cases was specifically taken away, after the act of January 14, 1882, by the act of January 26, 1882. It was said, however, in the argument of counsel that the former remedy was one arising under the common law, and that the settled law of Virginia is that when an act is passed repealing an act creating a statutory remedy it operates to revive the former common-law remedy. Insurance Company of Valley of Virginia v. Barley's Adm'r, 16 Gratt. 363; Booth v. The Commonwealth, 16 Gratt. 519, and Moseley, Trustee, v. Brown et al., 76 Va. 419. If this be still the law of Virginia and applicable to the case at bar, so that the repeal of the act of 1882 revives the former remedy by mandamus, then it is undoubtedly true that new suits can no longer be maintained under the act of 1882 and a party must proceed by mandamus. But that is a question yet to be settled by the court of appeals of Virginia. It is not decided in the case of Maury v. Commonwealth, and, so far as we have been advised, has not yet been determined by that court. If it shall finally be held by that court that the remedy by mandamus does not exist, then it will become a question for further consideration whether the act repealing the act of 1882 can be sustained. But it is not necessary now to determine that question, inasmuch as the judgment in the trial court was rendered, as we have seen, prior to the repealing act, and the right acquired by the judgment creditor was not and could not constitutionally be taken away.
But there are more substantial reasons than this for not entertaining this motion. At the time the judgment was rendered in the circuit court of the city of Norfolk the act of 1882 was in force, and the judgment was rightfully entered under the authority of that act. The writ of error to the court of appeals of the state brought the validity of that judgment into review, and the question presented to that court was whether at the time it was rendered it was rightful or not. If rightful the plaintiff therein had a vested right which no state legislation could disturb. It is not within the power of a legislature to take away rights which have been once vested by a judgment. Legislation may act on subsequent proceedings, may abate actions pending, but when those actions have passed into judgment the power of the legislature to disturb the rights created thereby ceases. So, properly, the court of appeals, in considering the question of the validity of this judgment, took no notice of the subsequent repeal of the act under which the judgment was obtained, and the inquiry in this court is not what effect the repealing act of 1894 had upon proceedings initiated thereafter, or pending at that time, but whether such a repeal devested a plaintiff in a judgment of the rights acquired by that judgment. And in that respect we have no doubt that the rights acquired by the judgment under the act of 1882 were not disturbed by a subsequent repeal of the statute.
Even if the repeal had preceded the judgment in the trial court, or if in a proceeding like this, equitable in its nature, the mere taking of the case to the court of appeals operated to vacate the decree, there would still remain a serious question. When the act of 1871 was passed the coupon holder had a remedy by writ of mandamus to compel the acceptance of his coupons in payment of taxes. The form and mode of proceeding were prescribed by statute. (Code Va. 1873, p. 1023.) On January 14, 1882, the general assembly passed the act providing a new remedy for the coupon holder. This act came before this court in Antoni v. Greenhow, 107 U. S. 769, 774 [27: 468,471], and was sustained, the court holding that while it is true that, "as a general rule, laws applicable to the case which are in force at the time and place of making a contract enter into and form part of the contract itself, and 'that this embraces alike those laws which affect its validity, construction, discharge, and enforcement' (Walker v. Whitehead, 16 Wall.
The judgment of the Court of Appeals will be reversed, and the case remanded for further proceedings not inconsistent with this opinion.
Mr. Justice Peckham dissenting:
I dissent from the opinion and judgment of the court in this case because I think that the ground upon which the state court has based its decision deprives this court of any jurisdiction. The case having originated in a state court, we have no jurisdiction to re- examine its judgment unless there is some Federal question involved therein, the decision of which by the court below was unfavorable to the claim set up, and its decision was necessary to the determination of the case, or the judgment as rendered could not have been given without deciding it. Eustis v. Bolles, 150 U. S. 361 [37: 1111]. Jurisdiction is said to exist herein because of the alleged violation of the constitutional