OBLIGATION OF CONTRACTS. 



651 



thorize the Treasurer to pay out the money, contrary 

 to what has just been decided with respect to lan- 

 guage much more expressive in the legislation of 

 Louisiana, of what avail can it be to the owner of the 

 coupon if the Treasurer refuse to refund the amount 2 

 There is no mode, according to the opinion of the 

 majority, of coercing his action. No mandamus can 

 issue, tor that remedy and all compulsory process 

 have been abolished. 



Besides all this, as the coupons are mostly for small 

 amounts, the costs of the suits to test their genuine- 

 ness and receivability for taxes would be more than 

 their value. Practically, the law destroys the coupons, 

 and it was evidently intended to have that effect. . . . 



That there is any adequate and efficacious remedy 

 substituted for the one in existence when the funding 

 act was adopted, can not, it seems to me, be seriously 

 affirmed. The remedy originally existing was effect- 

 ive. No officer could refuse to receive the coupon 

 without subjecting himself to personal liability. Af- 

 ter a tender' no valid sale could be made for the taxes. 

 And the creditor could invoke the compulsory process 

 of the courts to secure a specific performance. Now 

 all is changed. A law which practically destroys the 

 value of the coupon is sustained. The officer is not 

 bound to receive it, in the sense that he can not be 

 compelled to take it. He can enforce the payment of 

 taxes in money ; he can sell property, if necessary, to 

 collect them ; he can wholly ignore the coupon, unless 

 the holder should foolishly consent to incur double 

 the amount in costs to establish by a jury trial its 

 genuineness and legal receivability for taxes. 



Justice Field concluded his dissenting opin- 

 ion in these words: "I find myself bewildered 

 by the opinion of the majority of the court. 

 I confess that I can not comprehend it, so for- 

 eign does it appear to be from what I have 

 heretofore supposed to be established and set- 

 tled law. And I fear that it will be appealed 

 to as an excuse, if not justification, for legis- 

 lation amounting practically to the repudiation 

 of the obligations of States, and of their sub- 

 ordinate municipalities their cities and coun- 

 ties. It will only be necessary to insert in their 

 statutes a false recital of the existence of forged 

 and spurious bonds and coupons, as a plausible 

 pretext for such legislation, and their schemes 

 of plunder will be accomplished. No greater 

 calamity could, in my judgment, befall the 

 country than the general adoption of the doc- 

 trine that it is not a constitutional impairment 

 of the obligation of contracts to embarrass 

 their enforcement with onerous and destruc- 

 tive conditions, and thus to evade the per- 

 formance of them." 



Justice Harlan said, in his dissenting opin- 

 ion, that " if the act of January 14, 1882, be 

 upheld in its application to bonds issued under 

 the act of 1871, it is difficult to perceive that 

 the constitutional inhibition upon laws impair- 

 ing the obligation of contracts is of the slight- 

 est practical value for the preservation of the 

 rights of those dealing with States. Indeed, 

 the act of January 14, 1882, in its necessary 

 operation, as directly and effectually impairs 

 the commercial value of the bonds and coupons 

 issued under the funding act as would a statute 

 which repudiated the bonds outright, and for- 

 bade the receipt of their coupons, under any 

 circumstances, for taxes, debts, or demands 

 due Virginia." 



After explaining that the judgment of the 

 Court was based on the ground that the obli- 

 gation of the contract was not impaired by 

 the changes made by the act of January 14, 

 1882, in the remedies for its enforcement, 

 Justice Harlan proceeded : 



Here is the radical difference between the majority 

 of my brethren and myself. To my mind I say it 

 with all respect for my associates who have reached a 

 different conclusion it is so entirely clear that the 

 change in the remedies has impaired both the obliga- 

 tion and value of the contract, that I almost despair of 

 making it clearer by argument or illustration. 



Under the contract the tax-payer, it is conceded, 

 is entitled to have his coupon received for his taxes 

 when tendered ; while under the statute of January 

 14, 1882, the collector is forbidden to so receive it ; 

 and the tax-payer, in order to protect his property 

 against levy or distraint, and relieve it from the en- 

 cumbrance created by the assessment of taxes, must 

 pay his taxes in money, and then, if he wishes to get 

 his money back, prove to the satisfaction of twelve 

 jurymen the genuineness and legal receivability of 

 his coupons. 



Under the cqntract, and the laws in force when it 

 was made, the tax-payer is entitled, in the first in- 

 stance, to enforce the receipt of his coupons for taxes 

 by mandamus, the sole remedy then given to effect 

 that result ; while under the subsequent legislation 

 he is denied the right to a mandamus until he first 

 pays his taxes in money, and then proves to the sat- 

 isfaction of twelve jurymen that they are genuine 

 coupons, and legally receivable for taxes. 



Under the contract and the laws in force when it 

 was made, the tax-collector was not bound to resist 

 an application for mandamus, and it is not to be pre- 

 sumed that he would do so unless he doubted the 

 genuineness of the coupons tendered in payment of 

 taxes ; if, however, he did so, he became liable to pay 

 the costs incurred by the tax-payer, when the latter 

 succeeded ; while under the act of January 14, 1882, 

 all discretion is taken from the collector, and he is 

 required, although he may know t?te coupons to bs 

 genuine and legally receivable for taxes, to decline 

 receiving them for taxes until the tax-payer, having 

 first paid his taxes in money, shall prove them, to the 

 satisfaction of twelve jurymen, to be genuine. 



And the remedy thus given by the statutes, passed 

 after the contract was made, for the enforcement of 

 the tax-payer's admitted right to have his coupon re- 

 ceived for taxes, when offered, is pronouncea to be 

 adequate and efficacious, and not an impairment ot 

 the substantial rights given by the contract. My 

 brethren distinctly admitting that the legislation of 

 1882 is in hostility to the State's creditors, and has 

 impaired the commercial value both of the bonds and 

 their coupons in effect, hold that such legislation 

 does not burden the proceedings for the enforcement 

 of the contract with any new conditions or restrictions 

 inconsistent with, or which impair, its obligations. I 

 can not assent to such conclusion, believing, as I do, 

 not only that it is in direct conflict with every ad- 

 judged case cited, either by the court or by my 

 brother Field, but that the new remedy is adequate 

 and efficacious, not for the preservation and enforce- 

 ment, but the destruction of the contract. The hold- 

 ers of the bonds and coupons are placed by the legis- 

 lation of 1882 in the position where it is useless and 

 impracticable to pursue the remedies thereby given. 



have "deemed it impossible that any different view 

 could be entertained. 



Justice Harlan concluded his opinion as fol- 

 lows: 



Finally came the enactments of 1882, which have 

 so changed the remedies existing when bonds were 

 issued under the act of 1871 that tax-payers, holding 



