« ForrigeFortsett »
promise is void. When, however, for a iegal consideration, a party undertakes to do one Neither is the argument a sound one. It or more acts, and some of them are unlawignores the difference between the statute ful, the contract is good for so much as is and the contract, and confuses the two en- lawful and void for the residue. Whenever tirely distinct matters of construction and the unlawful part of the contract can be sepvalidity. The statute precedes the contract. arated from the rest it will be rejected and Its scope and meaning must be determined the remainder established. But this cannot before any question will arise as to the va- be done when one of two or more consideralidity of the contract which it authorizes. It tions is unlawful, whether the promise be is elementary law that every statute is to to do one lawful act, or two or more acts be read in the light of the Constitution. How- part of which are unlawful, *because the ever broad and general its language, it can- whole consideration is the basis of the whole not be interpreted as extending beyond promise. The parts are inseparable. Withose matters which it was within the con- doe v. Webb, 20 Ohio St. 431 [5 Am. Rep. stitutional power of the legislature to reach. 664], citing Metcalf on Contracts, 246; AdIt is the same rule which obtains in the in-dison on Contracts, 905; Chitty on Contracts, terpretation of any private contract between 730: 1 Parsons on Contracts, 456; 1 Parsons individuals. That, whatever may be its on Notes and Bills, 217; Story on Prom. words, is always to be construed in the light Notes, section 190; Byles on Bills, 111; of the statute; of the law then in force; of Chitty on Bills, 94. the circumstances and conditions of the par- "And in the same case it is said: 'Whilst ties. So, although general language was in- a partial want or failure of consideration troduced into the statute of 1871, it is not avoids a bill or note only pro tanto, illegalto be read as reaching to matters in respect ity in respect to a part of the consideration to which the legislature had no constitution- avoids it in toto. The reason of this disal power, but only as to those matters within tinction is said to be founded, partly at its control. And if there were, as it seems least, on grounds of public policy, and partly there were, certain special taxes and dues on the technical notion that the security is which under the existing provisions of the entire and cannot be apportioned; and it has state Constitution could not be affected by been said with much force, that where parlegislative action, the statute is to be read ties have woven a web of fraud or wrong it as though it in terms excluded them from its is no part of the duty of courts of justice to operation. unravel the threads and separate the sound from the unsound;' citing Story on Prom. Notes, and Byles on Hills, supra, and then adds: 'And, in general, it makes no difference as to the effect whether the illegality be at common law or by statute.''
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
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 nowhere suggested that there was any vice or illegality in it; that it was not a valid obligation of the state. When the bondholder surrendered that he furnished the entire consideration for the contract, and for that he received from the state a promise. And above cited: "When, however, for a legal as the supreme court of Ohio said in the case consideration, a party undertakes to do one or more acts, and some of them are unlawful, the contract is good for so much as is lawful and void for the residue." The court of appeals concedes that the promise made by the state to pay the interest is valid, because made upon a good and lawful consideration. Does it not logically follow that the promise of the state is also good as to all other matters contained within it in respect to which it might lawfully make a promise? It promised to receive the coupons "for all taxes, debts, dues, and demands due the state." That promise was necessarily for each tax and debt, as well as for all taxes and debts. If it should so happen that any single tax or debt cannot, under the Constitution of the state, be lawfully discharged
they will have to be disposed of according to their own circumstances and conditions."
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
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 To like effect are the decisions of this [30: 1059]; New Orleans Water Works Co. court. In United States v. Bradley, 10 Pet. v. Louisiana Sugar Refining Co. 125 U. S. 18 343 [9: 448], suit was brought on a pay-[31: 607]; Central Land Co. v. Laidley, 159 master's bond, and it was claimed that as U. S. 103, 109 [40: 91, 94]. If the some of the stipulations were in excess of judgment of the state court gives no effect those required by the statute, and illegally to the subsequent law of the state, and the inserted, the whole bond was void. But the state court decides the case upon grounds court overruled the contention, saying (p. independent of that law, a case is not made 360 ): for review by this court, upon any ground of the impairment of a contract. The above cited cases announce this principle."
"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 Gelpcke 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."
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 corpora tion 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 stat ute. 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 Fourthly. It is urged that this court has valid and broad enough to exempt from all no jurisdiction of this case for the reason taxation, city as well as state, and adjudge that the court of appeals in its opinion does the last act of the legislature void as in connot consider the subsequent legislation flict with the prior; and that thereafter the passed by the state with the view of impair-city should again attempt to levy taxes upon ing the contract created by the act of 1871, the corporation, and that upon a challenge but limits itself to a consideration of that of those taxes the state court should say act, and adjudges it void. In support of nothing in respect to the last act, but simply this proposition the rule laid down in New rule that the original act exempting the Orleans Water Works Co. v. Louisiana Sugar property of the corporation from taxation Ref. Co. 125 U. S. 18, 38 [31: 607,615], re- was void, could it fairly be held that this affirmed in Huntington v. Attrill, 146 U. S. court was without jurisdiction to review 657, 684 [36: 1123,1134], and Bacon v. that judgment, a judgment which directly Texas, 163 U. S. 207, 216 [41: 132, 136], is and necessarily operated to give force and cited. 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
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
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 | United States Treasury notes, national bank levied as against a railroad exempt by law currency, and nothing else." This command or charter, yet the supreme court held that was re-enacted in the Code of 1887. Under this company is not exempt, and is embraced these statutes the state demanded payment within the act; so that if a contract of ex- of its taxes in money and repudiated its emption is contained in the company's char- promise to receive coupons in lieu thereof. ter, then the obligation of that contract is True, in its opinion, the court of appeals did impaired by the act of 1888, which must be not specifically refer to these statutes, but considered, under the ruling of the supreme by declaring that the contract provided for court, as intended to apply to the company. in the act of 1871 was void it did give full The result is the same, although the act of force and effect to them, as well as to the 1888 be regarded as simply putting in force general revenue law of the state. Now, it revenue laws existing at the date of the com- is one of the duties cast upon this court by pany's charter, rather than itself imposing the Constitution and laws of the United taxes, for if the contract existed those laws States to inquire whether a state has passed became inoperative, and would be reinstated any law impairing the obligation of a prior by the act of 1888. The motion to dismiss contract. No duty is more solemn and imthe writ of error is therefore overruled." perative than this, and it seems to us that  *In Wilmington & Weldon Railroad Co. V. we should be recreant to that duty if we Alsbrook, 146 U. S. 279, 293 [36: 972, 978], should permit the form in which a state the state court, conceding the validity of a court expresses its conclusions to override contract of exemption from taxation, held the necessary effect of its decision. 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
"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 direct ly passed upon, we are of opinion that the writ of error was properly allowed."
It must also be borne in mind that this is not a case in which, after a statute asserted to be the foundation of a contract, acts are passed designed and tending to destroy or impair the alleged contract rights, and the first time the question is presented to the highest court of the state it takes no notice of the subsequent acts, but inquires simply as to the validity of the alleged contract. Here it appears that the state courts had repeatedly held the act claimed to create a contract valid, and had passed upon the valated to destroy and impair the rights given lidity of subsequent acts designed and calcuby such contract, sustaining some and annulling others. Some of those judgments had beeen brought to this court, and by it the validity of the original act had been uniformly and repeatedly sustained, and the invalidity of subsequent and conflicting acts adjudged, and now, at the end of many years of litigation, with these subsequent statutes still standing on the statute books unrepealed by any legislative action, the state court, with only a casual reference to those and, reversing its prior rulings, adjudges it later statutes, goes back to the original act, void, thus in effect putting at naught the repeated decisions of this court as well as its
In Mobile & Ohio Railroad Co. v. Tennessee, 153 U. S. 486, 492, 493 [38: 793, 796], Mr. Justice Jackson, reviewing prior deci
"It is well settled that the decision of a state court holding that, as a matter of construction, a particular charter or a charter provision does not constitute a contract, is not binding on this court. The question of the existence or nonexistence of a contract in cases like the present is one which this court will determine for itself, the established rule being that where the judgment of the highest court of a state, by its terms or necessary operation, gives effect to some provisions of the state law which is claimed by the unsuccessful party to impair the contract set out and relied on, this court has jurisdiction to determine the question whether such a contract exists as claimed, and whether the statement in the trial court and prior to the delaw complained of impairs its obligation." 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
own. Under such circumstances it seems to us that it would be a clear evasion of the duty cast upon us by the Constitution of the United States to treat all this past litigation and prior decisions as mere nullities and to consider the question as a matter de novo. It would be shutting our eyes to palpable facts to say that the court of appeals of Virginia has not by this decision given effect to these subsequent statutes.
Finally, it is urged that since the judg
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 Treas-particular form of suit; that no state can be ury notes, or notes of the national banks of sued without its own consent; that such conthe United States;" and again, in 1882, a sent has thus been withdrawn, and therefore further statute commanding tax collectors the whole proceeding abates and this suit to receive in payment of taxes "gold, silver, must be dismissed. It is true that such an
"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.
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.
The judgment of the Court of Appeals will be reversed, and the case remanded for further proceedings not inconsistent with this opinion.
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.
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