specific disability, for which the rate of pension STATE OF LOUISIANA, ex rel. JOSIAH v. BANK. pension shallcom mence as hereinafter provided POLICE JURY OF JEFFERSON, LEFT 4.3 any officer of the army, including regulars, volunteers or militia *** disabled by reason cf any wound or injury received, or disease ontracted, while in the service of the United | ates and in the line of duty." 17 Stat. at L. 566, 567; 19 Id. 403. tary service Section 4695 provides that "The pension for total disability shall be *** for lieutenantcolonels and officers of higher rank in the mili$30 per month." 17 Stat. 1 L. 567; 19 Id. 264. Other sections fix the amount of pensions in cases of disabilities known as permanent specific disability and inferior disability. It is then provided, by section 4702, that "If any person embraced within the provisions of sections 4692 and 4693 has died since the 4th day of March, 1861, or hereafter dies by reason of any wound, injury or disease which, under | the conditions and limitations of such sections, would have entitled him to an invalid pension | bad be been disabled, his widow *** shall be entitled to receive the same pension as the band or father would have been entitled to I had he been totally disabled, to commence from the death of the husband or father, to continue to the widow during her widowhood," etc. Act of March 3, 1873, 17 Stat. at L. p. 569, chap. (See S. C." Fisk v. Jefferson Police Jury," Report er's ed. 131-135.) Municipal ordinance fixing compensation-La. 1. After services have been rendered under a mu- nicipal law, resolution or ordinance which fixes the tract to pay for those services at that rate; and the the State. The case is stated by the court. No counsel appeared for defendant in error. These cases are brought before this court by writs of error to the Supreme Court of Louisiana. As they involve precisely the same questions between the same parties they may be decided together. Josiah Fisk, who was an attorney at law, brought three suits in the proper court of the Parish of Jefferson to recover for salary and fees due him from the parish as district attorney; and he obtained judgments in each case against the Police Jury, which is the governing body of the parish. It would seem to be too clear for discussion Lat the construction which the court placed pon the statutory provisions is correct. It is so be doubted that the words "total disty" in the pension laws have a technical tication which cannot be disregarded. And when the statute fixes $30 per month as the Being unable to obtain the payment of these pon, in case of total disability, of an officer judgments in any other mode, he first made ap the rank of General Burnett, and declares plication for a writ of mandamus to compel the that his widow shall receive the same pension assessment and collection of a tax for the payas her husband would have received had he ment of two of these judgments, and afterwards be totally disabled, there is no room left for for another writ in regard to the third judgment; struction that would give her a pension in the two judgments being for his salary and fees ress of that amount. If it is supposed that under one appointment, and the other under a 2 Law operates unjustly against the officers second appointment. The inferior court granted the writ in one diers who became totally disabled in mice, or that an unreasonable distinction case and denied it in the other. But on appeal le between different kinds of disability, to the supreme court of the State, the writs -- rebely is with another department of the were denied in both cases. Fremment. The courts must give effect to| The ground of the jurisdiction of this court tion of Congress as manifested by the to review these judgments is the assertion by the law. pidement is Boy. Test: affirmed. H. McKenney, Clerk, Sup. Court, U. 8. JOSIAH FISK, Piff. in Err., 0. law of the State which impaired the obligation The services for which the judgments were "That no city or other municipal corpora POLICE JURY OF JEFFERSON, LEFT tion shall levy a tax for any purpose which shall BANK. NOTE.-Constitutional law; impairment of obligation of contracts. See Fletcher v. Peck, 10 U. S. (6 Crouch), 87, bk. 3, 162, note. [132] [133] [134] exceed 2 per centum on the assessed cash value | quested and rendered, and the obligation to pay But by the Constitution of the State of 1880 it more. In answer to the argument that as applied to plaintiff's case the constitutional provision impaired the obligation of his contract, the supreme court decided that his employment as attorney for the parish did not constitute a contract, either in reference to his regular salary or to his compensation by fees. And this question is the only one discussed in the opinion, and on that ground the decision rested. It seems to us that the supreme court confounded two very different things their discussion of this question. It is apparent that if the officers whose duty it is to assess the taxes of this parish were to perform that duty as it is governed by the law of 1871, the plaintiff would get his money. If not by a first year's levy, then by the next. But the constitutional provision has repealed that law, and stands in the way of enforcing the obligation of plaintiff's contract as that obligation stood at the time the contract was made. v. Quincy, 4 Wall. 535 [71 U. S. bk. 18, L. ed. 403]; Nelsm v. St. Martin's Parish, 111 U. S. 716 [Bk. 28, L. ed. 574]. It is well settled that a provision in a State Constitution may be a law impairing the obligation of a contract as well as one found in an ordinary statute. We are of opinion, therefore, that as it regards plaintiff's case this restrictive provision of the Constitution of 1880 does imWe do not assert the proposition that a per-pair the obligation of a contract. Von Hoffman son elected to an office for a definite term has any such contract with the government or with the appointing body as to prevent the Legislature or other proper authority from abolish- The judgments of the Supreme Court of Loui ing the office or diminishing its duration or re-siana are therefore reversed, and the cases are moving him from office. So, though when remanded to that court for further proceedings appointed the law has provided a fixed com- not inconsistent with this opinion. pensation for his services, there is no con- True copy. Test: tract which forbids the Legislature or other proper authority to change the rate of compensation for salary or services after the change is made, though this may include a part of the term of the office then unexpired. Butler v. Pennsylvania, 10 How. 402 [51 U. S. bk. 13, L. ed. 472]. James H. McKenney, Clerk, Sup. Court, U. S. STATE OF LOUISIANA, ex rel. SAMUEL v. JURY OF JEFFERSON, LEFT porter's ed. 135-137.) in Louisiana for indebtedness. But after the services have been rendered, un- POLICE der a law, resolution or ordinance which fixes the rate of compensation, there arises an implied contract to pay for those services at that rate. (See 8. C. "Stewart a Jefferson Police Jury," ReThis contract is a completed contract. Its obligation is perfect and rests on the remedies which the law then gives for its enforcement. The Construction of state statutes—limit of taxation vice of the argument of the Supreme Court of Louisiana is in limiting the protecting power of the constitutional provision against impairing when rendering a judgment against a parish to or1. The Law of Louisiana, requiring the court the obligation of contracts to express contracts, der the levy of a tax to pay it, is properly construed to specific agreements; and in rejecting that with reference to the tax limit fixed by the Act of much larger class in which one party having 2. A judgment creditor upon a judgment obtained delivered property, paid money, rendered serv-on a contract made subsequent to the passage of the ice, or suffered loss at the request of or for Act of 1872 is not entitled to a mandamus to compel the use of another, the law completes the conthe levy of a tax in excess of the limit fixed by that Act. tract by implying an obligation on the part of the latter to make compensation. This obligation can no more be impaired by a law of the State than that arising on a promissory note. The case of Fisk was of this character. His appointment as district attorney was lawful and was a request made to him by the proper authority to render the services demanded of that office. He did render these services for the parish; and the obligation of the Police Jury to pay for them was complete. Not only were the services re 1872. [No. 71] Submitted Nov. 18, 1885. Decided Dec. 21, 1885. IN ERROR to the Supreme Court of the State of Louisana. The history and facts of the case appear in the opinion of the court. Messrs. Charles Louque and B. F. Jonas, for plaintiff in error. No counsel appeared for the defendant in error. 1 1885 Mr. Justice Miller delivered the opinion of | when rendering a judgment against the parish, the court: This, like the two cases just disposed of, is a writ of error to a judgment denying the plaintif a writ of man da mus. CW. Besancon was employed as an attorney, by a resolution of the Police Jury, passed Desember 11, 1871, to defend in certain suits about roads in the Parish; and for services in *st behalf rendered during the years 1875 and 1876 he recovered against the Police Jury of the parish a judgment for $1,188 on April 7, 1877. This judgment he afterwards assigned to Stewart, who procured a writ of mandamus to compel the Police Jury to levy a tax to pay it. by appeal into the Supreme Coart of the State, which at first affirmed this ment, but on a rehearing finally reversed Le order of the inferior court and denied the The case came The opinion rendered on the first hearing was based upon the proposition that the limit of taxation of the parish for the years 1875 and 1876 was 14 mills on $100, and that the statute then retired that when a court, in a case like this, rendered a judgment against the police jury, should at the same time order the levy of a to order the levy of a tax sufficient to pay the In both these views of the case we concur; and True copy. Test: James H. McKenney, Clerk, Sup. Court, U. S. suficient to pay it. And though no such COUNTY OF SAN MATEO, Piff. in Err., [138] order was made in plaintiff's case, the opinion beil that the law in this respect became a part v. of the judgment, and the plaintiff was entitled SOUTHERN PACIFIC RAILROAD COM to the writ to enforce the levy and collect the On the rehearing the court decided that this PANY. (See S. C. Reporter's ed. 138-142.) Act of 1869, which had permitted a tax on the Practice-dismissal of writ of error on settle- The first section of that Act is as follows: Section 1. Be it enacted, etc., That section 7 of the Act recited in the above mentioned title and approved March 3, 1871, be so amended and re-enacted as to read as follows: "That 2c city or other municipal corporation shall ry a tax for any purpose which shall exceed 25 per centum on the assessed cash value of all property therein listed for taxation, except City of New Orleans, which may levy a tax ment of controversy—costs. Where it appears that there is no longer an exist ing cause of action between the parties to a writ of By parish levy a tax for any parish purposes, 21 per centum; nor shall the police jury ofN ERROR to the Circuit Court of the United st be sustained by a vote of the majority of| States for the District of California. dismiss. The history and facts of the case sufficiently The elaborate argument on the merits was by the following counsel: Messrs. A. L. Rhodes, A. L. Hart, Atty Edmunds, S. W. Sanderson and Henry Beard, for defendant in error. the wid voters of said village, city or parish, at Gen. of California, Benjamin H. Brewster Mr. John W. Ross, special counsel for Messrs. A. L. Rhodes and Alfred Bars Mr. Chief Justice Waite delivered the opinion of the court: NOTE.-Parties on appeal or error. None but parties to the record can be heard on appeal or writ of error. See Harrison v. Nixon, 34 U. S. (9 Pet.), 483, bk. 9, 201 note; Owings v.Kincannon, 22 U. 8. (7 Pet.), insisted, however, on the part of the [138] [139] [140] This motion was made on the 18th of November last by Mr. John W. Ross, who had been specially appointed by the board of supervisors of the County as counsel for that purpose. Upon suggestion that counsel of record desired to oppose the motion, an order was made that notice be given them to appear and show cause against it if they desired to do so. This they have done, and it now appears that the suit was begun in a state court April 22, 1882. An answer was filed by the Railroad Company May 25, 1882. On the 30th of June the suit was removed to the Circuit Court of the United States. An amended answer was filed August 16, 1882, and on the same day a demurrer was filed to the answer. On the 6th of September the counsel for the County executed to the Railroad Company a receipt, of which the following is a In U. 8. Circuit Southern Pacific Railroad In case judgment shall be rendered in safd said defendant in lieu of taxes for the fiscal (Signed) v. The Southern Pacific Rail road Company. No. 2807. "In the Supreme Court of the United States. The County of San Mateo 0. Southern Pacific Railroad No. 1063 Whereas, certain actions brought by the People of the State of California, or by certain counties of said State, against said defendant and other railroad companies operating railroads in said State, for the recovery of taxes assessed against said companies for state and county pur poses, were, during the month of August last, tried before and submitted to the Circuit Court of the United States, Ninth Circuit, for the District of California, which actions have since been decided against the plaintiffs; And whereas, the attorneys for the respective parties to said actions against whom judgments have been rendered intend to sue out a writ or writs of error in one or more of said actions, and to prosecute the same with as much diligence as possible, and to move the supreme court that the same be advanced on the calen dar for argument; It is hereby stipulated by and between the parties to the first mentioned action that the further consideration of the said action by the supreme court may be deferred until the argument of one or more of the last mentioned cases. San Francisco, September 18, 1883. (Signed) A. L. Rhodes, The Southern Pacific Railroad Company. The parties having stipulated that the further consideration of this cause may be post- [ poned until certain other cases are disposed of, this cause is restored to its originai position on the docket, there to await the further action of the court." It now appears that, according to the claim of the counsel of record, there is due on account of the taxes sued for, including penalty, attorneys' fees, and interest at the rate of 2 per cent per month, from the time of delinquency until now, the sum of $14,399.07. It also apIt is stipulated in the above entitled actions pears that on the 11th of the present month the that each of them be and hereby is submitted Railroad Company paid into the treasury of the upon the plaintiff's demurrer to the first affirm- County the sum of $7,613.30. The County has ative defense (second defense) in the defendant's also had the use of the $7,247.63 paid on the answer. And it is further stipulated that judg- 6th of September, 1882, from the time of such ment final in the action may be rendered upon payment until now. The only condition at the demurrer, it being agreed that for the pur-tached to the payment made on the 11th of this pose of this proceeding the other defenses are withdrawn from the consideration of the court. Rhodes & Barstow, Attys. for plaintiff. month is that, if when the account is finally To Rhodes & Barstow, taxes. In all. $7,247 63 724 76 7,613 30 As this is more than the entire sum estimated -$15,585 69 142 51: by the counsel for the plaintiff to be due, it is clear that the debt for which the suit was brought has been unconditionally paid and satisfied. others are As to the objection that this was by agreement of parties made a test case, and many depending on its adjudication, it is sufficient to say that both sides agree that the suit of the County Santa Clara against the same Company presents all the questions that are in this case; and that the parties have stipulated this need not be taken up for decision until that is heard. The interests of the State, therefore, will be as well protected by the determination of that case as of this. For the reason that there is no longer an existing cause of action in favor of the County against the Railroad Company this writ of error is dismissed, each party to pay its True copy Test: oren costs. James H. McKenney, Clerk, Sup. Court, U.S. WINCHESTER AND PARTRIDGE MAN. and sale under an attachment sued out, on the The defense proceeds upon the ground that The evidence, so far as competent, tended to establish the following facts: on and prior to the 13th of March, 1882, John A. Webb and Joseph W. Webb were engaged at Austin, & Co., in selling wagons, agricultural implements, machinery, etc. in the course of busi Texas, under the firm name of John A. Webb EDWARD CREARY, WILLIAM BRUG-ness they became largely indebted to various (See 8. C. Reporter's ed. 161-167.) persons, firms and corporations with whom they had dealt; among others, to the plaintiff in the [163] sum of $19,000, and to the defendants, Hayner & Co., in the sum of $16,262. On the day last named they sold, after inventory and by bill of sale, their entire stock in trade and a large amount of unsettled accounts, to the plaintiff for the sum of $43,000, which was at that time the fair value of the property. Of the purchase price, $19,000 was paid by the can1 Declarations of the vendor of personal prop-cellation of plaintiff's claim against the venderty and of the agent of the vendee, made after the ors; and the balance was paid by its promisreader of such property by the vendor to such gent, are inadmissible against the vendee to show sory notes, of different amounts and payable at the character of the sale when made. different times. These notes were used by Webb Declarations of the vendor after sale are inad- & Co. in payment of their debts, no part of ble against the vendee in support of a charge them being withheld from creditors. At the a combination or con-piracy to defraud creditors. ess the alleged common purpose to defraud is time of the sale the vendors were insolvent. esta bushed by independent evidence, and un- That fact was recognized by them, and was they have such relation to its execution as to known as well to plaintiff as to Hayner & Co., con-tute a part of the res gesta. We vendor, after the surrender of pos- and to other creditors. By the sale of March on. remains merely as a clerk or salesman, he 13, 1882, the vendee intended to obtain, and the wing in favor of creditors, proof of the declarapression within the meaning of the rule vendors intended to give to it, a preference over #Lot in d to control manage and dispose of it after iff requested Webb & Co. to transfer to it only [No. 65.] so much of their property as was necessary to Argued Nov. 17, 18, 1885. Decided Dec. 21, 1885. Webb & Co., who, in view of the character of their stock, insisted upon selling nothing less settled accounts. Plaintiff would not have to secure them in any way. It made the pur- The history and facts of the case sufficiently purchased at all if Webb & Co. had been able Winchester and Partridge Manufactur- < TE-Soles; fraud: possession retained by vendor. Ld ing its claim. Immediately upon the sale be ing effected, Webb & Co. surrendered, and the levied, conducted the business, exercising abso- |