Antoni v. Greenhow/Concurrence Clifford

Mr. Justice CLIFFORD, also lately sitting with us, in a concurring opinion in the same case, said:

'When an appropriate remedy exists for the enforcement of the     contract at the time it was made, the state legislature      cannot deprive the party of such a remedy, nor can the      legislature append to the right such restrictions or      conditions as to render its exercise ineffectual or      unavailing.' Id. 608.

And only two terms ago, in the case of Louisiana v. New Orleans, this court said, without a dissenting voice, that—

'The obligation of a contract, in the constitutional sense,     is the means provided by law by which it can be enforced,-by      which the parties can be obliged to perform it. Whatever     legislation lessens the efficacy of these means impairs the      obligation. If it tend to postpone or retard the enforcement     of the contract, the obligation of the latter is to that      extent weakened.' 102 U.S. 206.

How can it be maintained, in the face of these decisions, that the legislation of January 14 and April 7, 1882, does not impair the obligation of the contract under the funding act? It annuls the present receivability of the coupon; it substitutes for the specific execution of the contract a protracted litigation; and when the genuineness of the coupon and its legal receivability for taxes are judicially established, its payment is made dependent upon the existence of money in the treasury of the state. If the language of the act declaring that when the genuineness of the coupon and its receivability for taxes are established, the taxes paid by its holder shall be refunded out of the first money in the treasury in preference to other claims, be deemed a sufficient appropriation to authorize the treasurer to pay out the money, contrary to what has just been decided with respect to language 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? There is no mode, according to the opinion of the majority, of coercing his action. No mandamus can issue, for 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 genuineness 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.

There is nothing at all similar to this, as seems to be intimated by the opinion of the majority, in the revenue system of the United States, which forbids judicial proceedings to restrain the collection of a tax for its alleged invalidity, and only authorizes suit to recover back the money if paid under protest. Here the validity of the tax of Virginia is not assailed. The only question is, shall the officer of the state be required to receive in payment of the tax what she, by her contract, declared he should receive?

The case of Tennessee v. Sneed, 96 U.S. 69, is cited as giving support to the decision in this case. I do not think that it gives it any support whatever. It does not sustain the doctrine that a state may abolish the right of mandamus to which a creditor at the time of the contract was entitled, as a mode of specifically enforcing it. The facts of the case are these: In 1838 the legislature of Tennessee passed a law, with respect to the bills and notes of the bank of Tennessee, declaring that 'the bills and notes of the said corporation, originally made payable, or which shall have become payable, on demand in gold or silver coin, shall be receivable at the treasury, and by all tax-collectors and other public officers, in all payments for taxes or other moneys due the state.'

The supreme court of the state decided that a proceeding by mandamus against an officer of the state to enforce the receipt of these bills for taxes was virtually a suit against the state, and could not be maintained prior to 1855, when an act was passed allowing suits to be brought against the state under the same rules and regulations that govern actions between private parties. In 1865 this act was repealed. The creditor, when the contract was made, acquired, therefore, no right to the writ of mandamus, for it was not then an existing remedy, and so Mr. Justice HUNT, in delivering the opinion of the court, said: 'The question discussed by Mr. Justice SWAYNE in Walker v. Whitehead, 16 Wall. 314, of the preservation of the laws in existence at the time of the making of the contract, is not before us. The claim is of a subsequent injury to the contract.' And the court, after referring to the numerous cases of a change of remedies, says: 'The rule seems to be that in modes of proceeding and of forms to enforce the contract, the legislature has the control, and may enlarge, limit, or alter them, provided that it does not deny a remedy, or so embarrass it with restrictions and conditions, as seriously to impair the value of the right.'

Here the original remedy possessed by the coupon holder is abolished and that which is given as a substitute is so embarrassed with conditions as to destroy the value of the contract.

In the case of Louisiana v. Pilsbury, which was before us at the last term, the legislature of that state had passed a law prohibiting its courts from issuing a mandamus to compel the levy of a tax for the payment of bonds other than those issued under what was known as the premium-bond plan, thus cutting off the means of enforcing certain bonds held by the relator, and this court unanimously held that 'the inhibition upon the courts of the state to issue a mandamus for the levy of a tax for the payment of interest or principle of any bonds except those issued under the premium-bond plan was a clear impairment of the means for the enforcement of the contract with the holders of the consolidated bonds.' 'When the contract was made,' said the court, 'the writ was the usual and the only effective means to compel the city authorities to do their duty in the premises in case of their failure to provide in other ways the required funds. There was no other complete and adequate remedy. The only ground on which a change of remedy existing when a contract was made is permissible without impairment of the contract, is that a new and adequate and efficacious remedy be substituted for that which is superseded.' That there is any adequate and efficacious remedy substituted for the one in existence when the funding act was adopted cannot, it seems to me, be seriously affirmed. The remedy originally existing was effective. No officer could refuse to receive the coupon without subjecting himself to personal liability. After 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 cannot 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.

I find myself bewildered by the opinion of the majority of the court. I confess that I cannot comprehend it, so foreign does it appear to be from what I have heretofore supposed to be established and settled law. And I fear that it will be appealed to as an excuse, if not justification, for legislation amounting practically to the repudiation of the obligations of the states; and of their subordinate municipalities-their cities and counties. 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 doctrine that it is not a constitutional impairment of the obligation of contracts, to embarrass their enforcement with onerous and destructive conditions, and thus to evade the performance of them.

I am of opinion that the judgment of the court of appeals of Virginia should be reversed, and the cause remanded with instructions to award the mandamus prayed.