2. Because his contract and debt is against a political or local department of the State, whose existence, powers and duties all depend upon the legislative will-who cannot be sued without express permission, and as against whom all remedy may be taken away, and whose existence may at any time be terminated by the State.

3. Because if his contract was made with a view to any then existing provision for city taxes and appropriation to any particular class of debts of the City, he is presumed to have known the fundamental law of legislative power over municipal corporations and over the public taxes, and is held to have taken his contract with the City, subject to the continuing powers of the Legislature over the City, its powers of taxation, and the appropriation of its

revenues.

4. Admitting that he has a perfect contract, vesting in him certain definite, absolute, fixed rights of property, his contract is, in no legal sense, impaired by the Act of 1863, fixing the maximum of taxation in the City of Quincy, because the ordinary remedies of action and satisfaction are left unaffected, and the obligation of the contract, the coupons, remain in full force, with substantial legal remedies for enforcement, in contemplation of law. At most, the repeal but takes away a statutory and cu mulative remedy.

5. In this proceeding, according to the relator's case, he could have had remedy by mandamus without judgment; for, as he claims, his right to payment was out of a specific fund or tax. He has chosen to ob'ain judgment, and all his supposed contract 11ghts to extraordinary remedy, with his contract, are merged in his judgment; therefore he occupies the position of all other judgment creditors. He must rely upon his judgment, its liens and incidents, alone, for enforcement.

6. The contract supposed to be impaired by the repeal, is nothing more than Acts of legislation providing for the collection of future taxes, and their application-requiring the agency of public officers in the execution of revenue laws, and implying provisions for the enforcement of collection and the election of officers clothed with coercive powers.

But should a peremptory mandamus be awarded, we insist that the court, commanding the levy of taxes by the City to the full extent of municipal authority, can only direct payment to the individual creditor, out of any surplus of the proceeds which may remain in the Treasury, after the ordinary current municipal expenses are provided for. This follows from the fact that the City is a political Corporation for governmental purposes, and the interests of the public or government are paramount to those of individuals, and the individual is al ways postponed to the public demands.

1 La. Ann., 435; 18 Ohio, 13; 5 Mon., 531; 3 Met., 520; 8 Md., 95,100, et seq.; 25 Ill., 595; 23 Ill., 433.

Mr. Justice Swayne delivered the opinion of the court:

This case is brought before us by a writ of error to the Circuit Court of the United States for the Southern District of Illinois.

The relator filed his petition in that court, alleging, among other things, as follows:

At the June Term, 1863, and before that time, he was the owner and holder of certain coupons or interest notes of the City of Quincy. They were past due and unpaid. When issued and negotiated, they were attached to certain bonds, made and delivered by that City, in payment for the stock of the Northern Cross Railroad Company, and of the Quincy and Toledo Railroad Company, subscribed for by the City, under and by virtue of certain Acts of the Legislature of Illinois of the 17th of October, 1851, the 26th of January, 1853, and the 31st of January, 1857. By the provisions of these several Acts, the City was authorized to collect a special annual tax upon the property, real and personal therein, sufficient to pay the annual interest upon any bonds thereafter issued by the City for railroad purposes, pursuant to law. It was required that the tax, when collected, should be set aside and held separate from other portions of the city revenue, as a fund specially pledged for the payment of the annual interest upon the bonds aforesaid. It was to be applied to this purpose from time to time, as the interest should become due, "and to no other purpose whatsoever."

The City failed to pay the coupons held by the relator for a long time after they became due, and refused to levy the tax necessary for that purpose. The relator sued the City upon them in the court below, and at the June Term, 1863, recovered a judgment for $22,206.69 and costs. An execution was issued and returned unsatisfied. The judgment is unpaid. The City still neglects and refuses to levy the requisite tax. He prays that a writ of mandamus be issued, commanding the City and its proper officers to pay over to him any money in their hands otherwise unappropriated, not exceeding the amount of the judgment, interest and costs; and for want of such funds, commanding them to levy the special tax as required by the Acts of the Legislature before referred to, sufficient to satisfy the judgment, interests and costs, and to pay over to him the proceeds.

The City filed an answer. It alleges that there is no money in its treasury wherewith to satisfy the judgment, and as a reason why a peremptory writ of mandamus should not issue, it refers to an Act of the Legislature of Illinois of the 14th of February, 1863, which contains the following provisions:

Section 4. The city council of said City shall have power to levy and collect annually taxes on real and personal property within the limits of the said City, as follows: On real and personal property within, or which may hereafter be within portions of said City lighted with gas, to meet the expenses thereof, not exceeding twenty-eight cents on each $100 per annum, on the annual assessed value thereof. On all real and personal property within the limits of said City, to meet the expenses of obtaining school grounds, and erecting, repairing and improving school buildings and school grounds, and providing teachers and maintaiaing public schools in said City, and to be devoted exclusively for such purposes, not exceeding twenty-five cents on each $100 per annum on the annual assessed value thereof, pro

The question to be determined is, whether the statute, in this respect, is valid, or whether the Legislature transcended its power in enacting it.

vided that no more than eighteen cents on each | fund. What the deficiency will be as to the $100 aforesaid shall be levied in any year for debts, or whether anything applicable to them such purposes, without the concurrence of the will remain, is not stated. So far, it appears majority of the votes of legal voters of this that nothing has been paid upon these liabili City, to be cast at an election to be ordered by ties. And it was not claimed at the argument said city council and held to determine the rate that the result under the statute would be difper cent. so to be levied on all real and personal ferent in the future. property within the limits of said City, to pay the debts and meet the general expenses of said City, not exceeding fifty cents on each $100 per annum on the annual assessed value thereof. Sec. 5. All laws and parts of laws other than the provisions hereof touching the levy or collection of taxes on property within said City, except those regulating such collection and all laws conflicting herewith are hereby repealed; but this Act shall not affect taxes of said City relating to streets or alleys, nor to licenses of whatever nature, nor any sources of revenue other than taxes upon real and personal property, and which said Act remains in full force and unrepealed."

The answer avers that the full amount of the tax authorized by this Act has been as sessed and is in the process of collection; that the power of the City in this respect has been exhausted," and that the said fifty cents on the $100, when collected, will not be sufficient to pay the current expenses of the City for the year 1864, and the debts of the said City." It is further alleged that about the year 1851, the City, under the Act of November 6,1849, issued to the Northern Cross Railroad Company, bonds to the amount of $100,000; and about the year 1854, under the Act of January 20, 1853, other bonds to the amount of $100,000; and that about the year 1856, it made and delivered its bonds to the amount of $100,000. It alleges that the bonds last issued were wholly unauthorized, but that they were subsequently ratified by the Legislature by the Act of January 1st, 1857. The relator's judgment, it avers, was founded upon coupons belonging to bonds of these three classes.

The duty which the court is called upon to perform is always one of great delicacy, and the power which it brings into activity is only to be exercised in cases entirely free from doubt.

The Constitution of the United States declares (Art. I., sec. 10) that "no State shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts."

The case of Fletcher v. Peck, 6 Cranch, 87, was the first one in this court in which this important provision came under consideration. It was held that it applied to all contracts, executed and executory, whoever may be parties to them." In that case the Legislature of Georgia had repealed an Act passed by a former Legislature, under which the plaintiff in error had acquired his title by mesne conveyances from the State. The court pronounced the repealing Act within the inhibition of the Constitution and, therefore, void. Chief Jus tice Marshall said: "The validity of this rescinding Act might well be doubted were Georgia a single sovereign power; but Georgia cannot be viewed as a single, unconnected sovereign power, on whose Legislature no other restrictions are imposed than may be found in its own Constitution. She is a part of a large empire. She is a member of the American Union, and that Union has a Constitution, the supremacy of which all acknowledge, and which imposes limits to the Legislatures of the several States which none claim a right to pass." This case was followed by those of N. J. v. Wilson, 7 Cranch, 164; and Terrett v. Taylor, 9 Cranch, 43. The principles which they maintain are now axiomatic in American ac-jurisprudence, and are no longer open to controversy.

The relator demurred to the answer, and judgment was given against him.

The demurrer admits what is set forth in the answer. On the other hand, the answer, cording to the law of pleading, admits what is alleged in the petition and not denied.

It is then a part of the case before us, that when the bonds were issued and negotiated there were statutes of Illinois in force which authorized the levying of a sufficient special tax to pay the coupons in question as they became due. Such statutes are so inconsistent with the provisions of the Act of 1863, relied upon by the City, and cover the same ground, in such a manner that the Act of 1863 unquestionably repeals them, if that Act be valid for the purposes it was intended to accomplish.

The validity of the bonds and coupons is not denied. No question is made as to the judgment. The case turns upon the validity of the statute restricting the power of taxation left to the City within the narrow limits which it prescribes.

The answer says expressly that fifty cents on the hundred dollars' worth of property, which is all the statute allows to be levied to meet the debts and current expenses of the City, will not be sufficient for those purposes. The expenses will, of course, be first defrayed out of the

It is also settled that the laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it, as if they were expressly referred to or incorporated in its terms. This principle embraces alike those which af fect its validity, construction, discharge, and enforcement. Illustrations of this proposition are found, in the obligation of the debtor to pay interest after the maturity of the debt, where the contract is silent; in the liability of the drawer of a protested bill to pay exchange and damages, and in the right of the drawer and indorser to require proof of demand and notice. These are as much incidents and conditions of the contract as if they rested upon the basis of a distinct agreement. Green v. Biddle, 8 Wheat.,92; Bronson v. Kinzie, 1 How., 319; McCracken v. Hayward, 2 How., 612; People v. Bond, 10 Cal., 570; Ogden v. Saunders, 12 Wheat., 231.

In Green v. Biddle, the subject of laws which affect the remedy was elaborately discussed. The controversy grew out of a compact between

the States of Virginia and Kentucky. It was made in contemplation of the separation of the territory of the latter from the former, and its erection into a State, and is contained in an Act of the Legislature of Vir ginia, passed in 1789, whereby it was provided that all private rights and interests within' the District of Kentucky, "derived from the laws of Virginia prior to such a separation, shall remain valid and secure under the laws of the proposed State, and shall be determined by the laws now existing in this State." By two Acts of the Legislature of Kentucky, passed respectively in 1797 and 1812, several new provisions relating to the consequences of a recovery in the action of ejectment-all eminently benefi-perform their agreement." Sturges v. Crownincial to the defendant, and onerous to the plaint iff-were adopted into the laws of that State. So far as they affected the lands covered by the compact, this court declared them void. It was said: "It is no answer that the Acts of Kentucky now in question are regulations of the remedy, and not of the right to the lands. If these Acts so change the nature and extent of existing remedies as materially to impair the rights and interests of the owner, they are just as much a violation of the compact as if they overturned his rights and interests.'

In Bronson v. Kinzie, 1 How., 319, the subject was again fully considered. A mortgage was executed in Illinois containing a power of sale. Subsequently, an Act of the Legislature was passed which required mortgaged premises to be sold for not less than two thirds of their appraised value, and allowed the mort gagor a year after the sale to redeem. It was held that the statute, by thus changing the preexisting remedies, impaired the obligation of the contract and was, therefore, void.

In McCracken v. Hayward, 2 How., 608, the same principle, upon facts somewhat varied, was again sustained and applied. A statutory provision that personal property should not be sold under execution for less than two thirds of its appraised value was adjudged, so far as it affected prior contracts, to be void, for the

A Statute of Frauds embracing a pre-existing parol contract not before required to be in writing would affect its validity. A statute declaring that the word "ton" should thereafter be held, in prior as well as in subsequent contracts, to mean half or double the weight before prescribed, would affect its construction. A statute providing that a previous contract of indebtment may be extinguished by a process of bankruptcy would involve its discharge; and a statute forbidding the sale of any of the debtor's property, under a judgment upon such a contract, would relate to the remedy.

It cannot be doubted, either upon principle

or authority, that each of such laws passed by
a State would impair the obligation of the
contract, and the last mentioned not less than
the first. Nothing can be more material to the
obligation than the means of enforcement.
Without the remedy the contract may, indeed,
in the sense of the law, be said not to exist, and
its obligation to fall within the class of those
moral and social duties which depend for their
fulfillment wholly upon the will of the indi-
vidual. The ideas of validity and remedy are
inseparable, and both are parts of the obliga-
tion, which is guarantied by the Constitution
against invasion. The obligation of the con-
tract "is the law which binds the parties to
shield, 4 Wheat., 122. The prohibition has no
reference to the degree of impairment. The
largest and least are alike forbidden. In Green
v. Biddle, 8 Wheat., 84, it was said: "The ob-
jection to a law on the ground of its impairing
the obligation of a contract can never depend
upon the extent of the change which the law
effects in it. Any deviation from its terms by
postponing or accelerating the period of per-
formance which it prescribes, imposing con-
ditions not expressed in the contract, or dis-,
pensing with those which are, however minute
or apparantly immaterial in their effect upon
the contract of the parties, impairs its obliga-
tion. Upon this principle it is that if a credit-
or agree with his debtor to postpone the day
of payment, or in any other way to change the
terms of the contract, without the consent of
the surety, the latter is discharged, although
the change was for his advantage.'

'One of the tests that a contract has been impaired is that its value has, by legislation, been diminished. It is not, by the Constitution, to be impaired at all. This is not a question of degree or cause, but of encroaching, in any respect, on its obligation-dispensing with any part of its force." Planters' Bank v. Sharp, 6 How., 327.

This has reference to legislation which af fects the contract directly, and not incidentally or only by consequence.

The right to imprison for debt is not a part of the contract. It is regarded as penal rather than remedial. The States may abolish it whenever they think proper. Beers v. Haugh. ton, 9 Pet., 359; Ogden v. Saunders, 12 Wheat., 230; Mason v. Haile, 12 Wheat., 373; Sturges v. Crowninshield, 4 Wheat., 200. They may also exempt from sale, under execution, the necessary implements of agriculture, the tools of a mechanic, and articles of necessity in household furniture. It is said: "Regulations of this description have always been considered in every civilized community as properly belonging to the remedy, to be exercised by every sovereignty according to its own views of policy and humanity."

It is competent for the States to change the form of the remedy, or to modify it otherwise, as they may see fit, provided no substantial right secured by the contract is thereby impaired. No attempt has been made to fix definitely the line between alterations of the remedy, which are to be deemed legitimate, and those which, under the form of modifying the remedy, impair substantial rights. Every case must be determined upon its own circum

stances.

15 Wall., 624; 16 Wall., 232, 318; 19 Wall., 120, 657: 21 Wall., 498; 95 U. S., 683: 96 U. S., 74. 600: 98 U. S., 398: 99 U. S., 628; 100 U. S., 532; 105 U. S., 288; 1 Woods, 424: 2 Woods, 112, 641: 3 Woods, 540: 1 Dill., 135, 138, 528; 2 Abb. U. S., 60: 8 Bank. Reg., 5; 2 210; 5 Dill., 213, 314, 323, 418; 7 Kan., 506; 59 N. Y.. Biss., 411; 1 McCah., 362, 370; 4 Cliff., 607;1 Hughes, 231; 6 Am. Rep., 257 (1 Mass., 457); 6 Am. Rep.. 730, (45 Al 697); Am. Rep., 515 (22 Grat., 266); 12 Am. Rep.,3 (69 N. C., 369); 14 Am. Rep., 188 (55 N. Y., (14 Vroom., 203); 52 Mo., 356; 54 Mo., 118; 35 Obio 93); 17 Am. Rep., 197 (58 N. Y., 33); 39 Am. Rep., 561 St., 238; 36 N. J. L., 276, 281.

Whenever the result last mentioned, is produced, the Act is within the prohibition of the Constitution, and to that extent void. Bronson v. Kinzie; McCracken v. Hayward, supra. If these doctrines were res intergra the consistency and soundness of the reasoning which maintains a distinction between the contract and the remedy-or, to speak more accurately, between the remedy and the other parts of the contract-might perhaps well be doubted. 1 Kent, Com., 456; Sedg. Stat. and Const. Law, 652; (Dis. op. Wash. J.), Mason v. Haile, 12 Wheat., 379. But they rest in this court upon a founda tion of authority too firm to be shaken; and they ERASTUS SPARROW ET AL., Plffs. in Err., are supported by such an array of judicial names that it is hard for the mind not to feel constrained to believe they are correct. The doctrine upon the subject established by the latest adjudications of this court render the distinc- Order tion one rather of form than substance.

When the bonds in question were issued there were laws in force which authorized and required the collection of taxes sufficient in amount to meet the interest, as it accrued from time to time, upon the entire debt. But for the Act of the 14th of February, 1863, there would be no difficulty in enforcing them.

v.

CHARLES L. STRONG ET AL.

(See S. C., 4 Wall., 584-588).

denying new trial, not reviewable in this

court.

Where the judgment of the Supreme Territorial Court is only an order affirming the order of the district court denying a motion for new trial, it is not reviewable here on error. [No. 107.] Argued Jan. 21, 1867.

Decided Feb. 4, 1867.

The amount permitted to be collected by that IN ERROR to the Supreme Court of the Ter

ritory of Nevada.

The point on which the case turned appears in the opinion.

Messrs. Chas. O'Conor, George Ticknor Curtis and F. Billings, for the plaintiffs

Act will be insufficient; and it is not certain
that anything will be yielded applicable to that
object. To the extent of the deficiency the ob-
ligation of the contract will be impaired, and
if there be nothing applicable, it may be reiffs in error:
garded as annulled. A right without a remedy
is as if it were not. For every beneficial pur-
pose it may be said not to exist.

It is well settled that a State may disable it-
self by contract from exercising its taxing
power in particular cases. N. J. v. Wilson, 7
Cranch, 166; Dodge v. Woolsey, 18 How., 331
[59 U. S., XV., 401]; Piqua Br. Bank v. Knoop,
16 How., 369. It is equally clear that where a
State has authorized a municipal corporation
to contract and to exercise the power of local
taxation to the extent necessary to meet its en-
gagements, the power thus given cannot be
withdrawn until the contract is satisfied. The
State and the corporation, in such cases, are
equally bound. The power given becomes a
trust which the donor cannot annul, and which
the donee is bound to execute; and neither the
State nor the corporation can any more impair
the obligation of the contract in this way than
in any other. People v. Bond, 10 Cal., 570;
Dominick v. Sayre, 3 Sandf., 555.

The laws requiring taxes to the requisite amount to be collected, in force when the bonds were issued, are still in force for all the purposes of this case. The Act of 1863 is, so far as it affects these bonds, a nullity. It is the duty of the City to impose and collect the taxes in all respects as if that Act had not been passed. A different result would leave nothing of the contract, but an abstract right-of no practical value-and render the protection of the Constitution a shadow and a delusion.

The Circuit Court erred in overruling the application for a mandamus. The judgment of that court is reversed, and the cause will be remanded, with instructions to proceed in conformity with this opinion.

Cited-5 Wall., 709; 6 Wall., 194: 198, 483; 7 Wall., 613,619; 8 Wall., 584; 9 Wall., 417; 13 Wall., 653, 656;

If the Territorial Supreme Court had not such a regular possession of the record brought up from the district court as would authorize it to prounoce the judgment which it actually gave and caused to be entered, then, for this very reason, its judgment is erroneous and must be here reversed; because,

1. If the Supreme Court, on an appeal from an order overruling the motion for a new trial, could only act on that order and affirm or reverse it, the plaintiffs by an affirmance of the judgment of the district court, were cut off from their right of appeal from that judgment, and from their writ of error, both of which are given by the Code.

Secs. 285, 302, et seq.

2. The reversal here of the erroneous judgment of the Supreme Court, is the only relief the plaintiffs in error can have; and the Act of Congress of Feb. 27, 1865, section 8, makes the Supreme Court of the State of Nevada, the successor of the Supreme Court of Nevada Territory, as to such cases as the present, "with full power to hear and determine the same." This reversal, therefore, is of great importance to the plaintiffs in error; for on such reversal it would become the duty of the State Supreme Court to complete the preceedings opened for completion by such reversal. 13 Stat. at L., p. 441.

If a judgment is irregularly affirmed, this court will reverse the judgment of the affirming court, although that court could not have reversed the judgment of its inferior court.

Davis v. Packard, 6 Pet., 41; S. C., 7 Pet., 276; S. C., 8 Pet., 312,

If a record brought to this court shows that

NOTE. What is "final decree" or judgment of state or other court, from which appeal lies. See note to Gibbons v. Ogden, 19 U. S. (6 Wheat.), 448.

the court from whose judgment it comes, acted | 561), and Pomeroy's Lessee v. Bank of Ind., 1 finally on a case that was coram non judice, Wall., 592 (68 U. S., XVII., 638). Those rethis court will reverse that final action, and quirements are: First. That the statement send the case down, with directions to have the shall be signed by the party and be spread upcase placed in its proper attitude. on the record, so as to be a part of it. Second. That it must not call upon the court to weigh evidence or draw inferences of facts; but so far as it states facts, it must state them like a special verdict, in such a way as to call only for the application of the legal principles which must determine the case.