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 [121] *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

tice said:

"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[123]

In Mobile & Ohio Railroad Co. v. Tennessee, 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 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 con[122]the 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[125] 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 [124]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-[126] 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

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court jurisdiction, the state court must in
words allude to the subsequent legislation
and in terms give effect to it. It may be as-
sumed that if the real substance and neces-
sary effect of the judgment of the state court
was the determination of a Federal question
or the giving effect to subsequent legislation,
this court would have jurisdiction to review
that judgment, notwithstanding the particu-
lar language used in the opinion. But when
the case before the state court could have
been decided upon two distinct grounds, one
only of which embraced a Federal question,
the sole way of determining upon which of
those grounds the judgment was rested
would be to examine the language used in
the opinion of the state court. If that
language showed the judgment was founded
wholly upon a non-Federal question, this
court would be without power to review it.
Whether the state court has decided this
case wholly without reference to subsequent
legislation can only be learned from its opin-
ion. To this extent it has always been
within the power of the state court to de-
termine the jurisdiction of this court. If[128]
the former court chooses to decide a case up-
on a non-Federal question, when it might
have decided it upon one which was Federal
in its nature, the effect of such choice is to
deprive this court of jurisdiction, no matter
how erroneous we may regard the decision
of the state tribunal. The power is with
the state court in such cases to deprive us
of jurisdiction to review its determination,
and we are wholly without any power to
control its action in that respect. This is
what has been done, and all that has been
done in this case. The opinion of the state
court shows that the judgment went upon
the original and inherent invalidity of the
coupon statutes and its judgment in that
respect, as I shall hereafter attempt to show,

If by the judgment of the state court in
this case no effect has been given to any
statute passed subsequently to either of the
coupon acts, this court is without jurisdic-
tion to review that judgment. Lehigh
Water Company v. Easton, 121 U. S. 388
[30: 1059]; New Orleans Waterworks Com-
pany v. Louisiana Sugar Ref. Company, 125
U. Š. 18 [31: 607]; St. Paul, M. & M. Rail-gave no effect to any subsequent legislation.
way Co. v. Todd County, 142 U. S. 282 [35: That is the material question in this case
1014]; Central Land Company v. Laidley, upon which the jurisdiction of this court
159 Ú. S. 103 [40: 91]; Bacon v. Texas, 163 hangs. Prior decisions of this court in
U. S. 207 [41: 132].
other cases holding the contract valid, where
[127] *If there had never been any subsequent we had jurisdiction to determine such cases,
legislation regarding these coupon acts, and can have no effect upon the question of our
the highest court of the state had adjudged jurisdiction to review the judgment in the
that they were void as being in violation of case at bar. Prior decisions in such event
the Constitution of the state existing at the constitute no ground of jurisdiction.
time of their passage, of course there would
be no jurisdiction in this court to review
that judgment. And the state court might
have decided the case in different ways, at
one time holding the acts valid and subse-
quently holding them void, and still this
court would have no jurisdiction to re-ex-
amine the judgments of that court. This
would be true even if millions of dollars had
been invested in the bonds upon the strength
of the judgment of the state court first giv.
en holding the acts valid.

I concede, plainly and fully, the power of this court to review a judgment of the state court when effect has been given by that judgment to subsequent legislation claimed to impair the validity of a contract. But that vital fact must appear in order to support the jurisdiction, and without it the jurisdiction does not exist, no matter how important the question may be or how many times it may have been heretofore decided.


The cases above cited show that even if there has been subsequent legislation, if the judgment of the state court does not give that legislation any effect, and decides the case without reference thereto, this court is also without jurisdiction to review that judgment.

To say that the duty is cast upon this court to inquire whether a state has passed a law impairing the obligations of a prior contract is but to half state the case. inquiry must be further prosecuted to the extent of learning whether the state court has, by its judgment, given effect to such subsequent legislation, and, if it has not, then no duty or right rests upon this court to review the judgment.

I do not say that in order to give this

provision denying to any state the right to
pass any law impairing the obligation of a


In all the litigation arising in the state courts, by reason of the subsequent legislation by Virginia upon the subject, the claim was made, on a review of the judgments in this court, that the judgments of the state courts had given effect to statutes which were passed subsequently to the original coupon statutes, and that the original contract made by those statutes had been impaired by reason of those subsequent statutes to which effect was given by the judgments of the state courts. It was the giving effect by the judgment of the court to the subsequent statutes, which it was alleged impaired the contract, that gave jurisdiction to this court to decide for itself whether there was a contract, and, if so, what the contract was, as a preliminary to the decision of the question whether the subsequent statutes impaired the contract as construed by this court. The cases in which this court decides for itself, without reference to the decision of the state court, what the contract was, are cases where there has been, not only subsequent legislation which is alleged to impair the contract, but also legislation which has been given some effect to by the judgment of the state court. Such is the case of Jefferson Branch Bank v. Skelly, 1 Black, 436, 443 [17:173, 177], and such are all the other cases decided in this court upon that subject.

However true it may be that in many prior | ers when reviewing a judgment of a state cases this court has held there was a valid court. contract created by the coupon statutes, so In this class of cases the absolutely uncalled, which could not be impaired by any bending and essential fact which must exist, [129]subsequent *legislation, the fact remains that in order to give jurisdiction to review a judg unless such subsequent legislation has been ment of a state court, is subsequent legislagiven effect to by the judgment in this case, tion to which effect has been given by the there is not the slightest shadow of a claim judgment of the state court. This court is for jurisdiction in this court to review that not the Mecca to which all dissatisfied suitjudgment. Millions or hundreds of millions ors in the state courts may turn for the corof dollars may have been invested in reliance rection of all the errors said to have been upon a judgment of this court declaring the committed by the state tribunals. Nor is it law to be that there was a valid contract, and confided to this court to supervise the judg yet a state court might in a subsequent ac- ments of a state court in all cases where we tion adjudge that there never was a valid may think that court has by its later decicontract, because the statute which it was sion invalidated a contract which it had once claimed created it was in violation of the held to be lawful, and the judgment in which state Constitution. If that judgment did this court had upheld. The right of the not, in effect, put in operation any subse-state court in another case to reverse its quent legislation, the solemn adjudications former ruling is wholly unaffected by the fact of this court in some former cases that the that its former judgment had been affirmed contract was valid, could not affect the judg- here. Unless the Federal question exists in ment in question nor furnish ground for the this case there is no ground of jurisdiction jurisdiction of this court to review that judg- founded upon any prior decisions. ment. This court is not intrusted with the duty of supervising all decisions of state courts to the end that we may see to it that such decisions are never inconsistent, contradictory, or conflicting. We supervise those decisions only when a Federal question arises. It is said this court is not bound to follow the last decision of a state court reversing its prior rulings upon a question of the validity of a contract, when bonds have been issued and taken in reliance upon the decision of the state court adjudging the validity of the law under which the bonds were issued. I do not dispute the proposition, but it has nothing to do with this case. Where an action has been brought under such circumstances in a Federal court, it has been frequently held that such court was not bound to follow the latest decision of the state court which invalidated the law under which bonds had been issued, at a time when the state court had held the law valid. In such case the Federal court would follow the prior decision of the state court and apply it to all the securities which had been issued prior to the time when the state court changed its decision. But such a case raises no question of jurisdiction in this court to review the judgment of a state court. When that question of jurisdiction does arise, the right of review cannot rest upon the fact that the state court has refused to follow its former decision, and, on the contrary, has directly [180]* overruled it. The jurisdiction of this court to review the state court in this class of cases is confined in the first instance to an inquiry as to the existence of subsequent legislation upon the subject, and if none has been enacted to which any effect has been given by the state court, this court cannot review the decision of the state tribunal, even though that decision makes worthless a contract which it had prior thereto held valid.

Now, has this judgment of the state court given effect to any subsequent legislation? At the time of the passage of the coupon acts there was no prior statute in Virginia permitting taxes to be paid in coupons of any kind whatever. The sole authority for such attempted payment of taxes rested in the coupon statutes under consideration. If they gave no such authority, then none existed, and no payment of taxes by means of coupons was valid. This is wholly irrespective of the subsequent acts. The state court has held the coupon *acts to be entirely void, because[131] in violation of the state Constitution in existence when they were passed. Under that decision those acts are to all intents and purposes as if they never had been passed. They therefore furnished not the slightest form of legality to a payment of taxes in coupons. It was not a statute to forbid paying taxes in coupons that was necessary in order to deprive such payments of legality. A statute, a valid statute authorizing such payment, was necessary in the first instance, and if there were no such statute there was no authority existing to receive coupons in payment of taxes. The supreme court of appeals of Virginia, in a case in which it had jurisdiction, decided there was no such statute, and consequently no such authority, because the statute purporting to confer that authority was void, as in violation of the Constitution of the state. This judgment did not give the slightest effect to the legis lation subsequent to the coupon statutes. It simply held there were no coupon statutes, because those which purported to be such were totally void. No subsequent statute was necessary, and none such was given effect to. Striking down the coupon statutes effectually destroyed any assumed right to pay taxes in coupons, and the subsequent legislation was needless and ineffectual. Thus the whole groundwork upon which to base our jurisdiction in this case falls to the ground, and we are left to maintain it upon the insufficient claim of prior decisions of this

The cases of Gelpcke v. City of Dubuque, 1 Wall. 175 [17: 520], and Ohio & M. Railroad Company v. McClure, 10 Wall. 511 [19: 997], illustrate this difference between the powers of this court when reviewing a judg-court. ment of a lower Federal court and its pow- In truth, the particular question decided

in this case has never been before this court. | affirmed, as to that point, by this court. In In some of the former cases this court de- this decision now before us it has given no cided the general proposition that the coupon effect to subsequent legislation, and not havlegislation was valid and created a contract. ing done so, but simply decided a question After it had thus decided, a case came before of local law regarding its own Constitution, it where a subsequent statute provided that, the state court has given no decision which in the case of the school tax, coupons should raises a Federal question, and therefore none not be received in payment thereof. The that this court can review. state court had decided that the coupon stat- Under all the circumstances I can only see ute was invalid so far as it related to the a determination to take jurisdiction in this school tax, because the Constitution in exist-case simply because this court, as it is said, ence when the coupon acts were passed re- has in cases in which it had jurisdiction dequired in substance that such tax must be cided the question differently from the decipaid in lawful money, and consequently the sion in this case by the state court. That coupon act was unconstitutional as to such ground does not give jurisdiction, and that [132]tax. This court affirmed that judgment. is the only ground that does exist. Vashon v. Greenhow, 135 U. S. 662, 713 [34: 304, 320]. Part of the coupon statute was thus held invalid by the state court and also by this court.

The state had also passed a subsequent statute providing that the tax for a license to retail liquor should be paid in lawful money. This court (affirming in that respect the court below) held that act valid, because it was in effect a regulation of the liquor traffic, and the state could at all times legislate upon that subject, notwithstanding the coupon acts and the alleged contract therein created. Hucless v. Childrey, 135 U. S. 662, 709 [34: 304, 319]. Both of these decisions were made subsequently to the time when this court had held the coupon statute valid, and that a valid contract was therein created.

The writ of error should be dismissed for want of jurisdiction.




(See S. C. Reporter's ed. 133-148.)

Appraiser of imported goods-when ap praisement is valid-duty on American bags—foreign-made bags.



The state court has now decided in this
case that as the coupon acts were invalid | 2.
as to the payment of the school tax in cou-
pons (a proposition concurred in by this
court), the result was that the whole acts
were invalid, that they could not stand part-
ly valid and partly void, and that the whole
coupon scheme was unconstitutional. This
phase of the controversy has never before
reached this court, and the court has there-
fore never before decided this particular
point. It has said, generally, that
the legislation was valid, but it
said SO only in cases where the
general power of the legislature to enact the
coupon statutes was in question, and it has
never decided squarely the point that if the
coupon acts be unconstitutional in some
particulars they are nevertheless valid in
all others. The fact is alluded to simply as
matter of history.


The judgment of an appraiser after actual examination, that imported goods are not as described, but fall within a different classification, must stand as against the importer, nnless reversed on reappraisement, or by the board of general appraisers on protest filed.

An appraisement is not invalid as against the importer because the examination was not made in accordance with U. S. Rev. Stat. § 2901, which is intended for the benefit of the government.

The separation of American-made bags, which are free from duty, from foreign-made bags imported in the same bales, should be made by the importer if he wishes to obtain the exemptions on the former, and he cannot require the separation to be made by the goverument.

The prima facie showing that bags imported are of American manufacture is overturned when it appears that foreign bags in large numbers are included in the same bales with those of American make.

But even if it had, that fact confers no jurisdiction upon this court to review this judgment, if it otherwise is without it. In other words, because this court has hereto

fore decided the question of the validity of

the contract, in cases where it had jurisdiction, that fact furnishes no foundation for its jurisdiction in this case, where the state court has given no effect to any subsequent legislation. Prior decision is not the foundation of jurisdiction. What I say is, that whether there have been two or more decisions, is wholly immaterial; jurisdiction cannot be taken because it is said that in a second or subsequent decision the state court [133]did not follow its first decision in regard to the contract, although that decision had been

[No. 20.]

Argued and Submitted April 20, 1898. Restored to docket, and certiorari to bring up entire record ordered April 25, 1898. Submitted October 11, 1898. Decided December 5, 1898.

0 States Circuit Court of Appeals for the

N WRIT of certiorari to the United

Fifth Circuit, after certification of questions to this court, to review a decree of the Circuit Court of the United States for the Fifth Circuit reversing the decision of the board of general appraisers and decreeing that certain duties paid by Ranlett & Stone on imported bags be refunded and that the liquidation of duties before made be set aside and the duties reliquidated. Reversed, with directions to enter a decree for the refunding of one fourth of the duties paid.

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