Fisk v. Jefferson, Left Bank/Opinion of the Court

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. Being unable to obtain the payment of these judgments in any other mode, he first made application for a writ of mandamus to compel the assessment and collection of a tax for the payment of two of these judgments, and afterwards for another writ in regard to the third judgment; the two judgments being for his salary and fees under one appointment, and the other under a second appointment. The inferior court granted the writ in one case, and denied it in the other. But, on appeal to the supreme court of the state, the writs were denied in both cases.

The ground of the jurisdiction of this court to review these judgments is the assertion by plaintiff in error that they were founded on a law of the state which impaired the obligation of his contract, to-wit, the contract on which he procured the judgments already mentioned. The services for which the judgments were recovered were rendered in the years 1871, 1872, 1873, and 1874. During this period there was in force the act of the legislature of 1871, of which section 7 is as follows: 'That no city or other municipal corporation shall levy a tax for any purpose which shall exceed two per centum on the assessed cash value of all the property therein listed for taxation, nor shall the police jury of any parish levy a tax for any parish purposes during any year which shall exceed one hundred per centum of the state tax for that year, unless such excess shall be first sanctioned by a vote of the majority of the voters.' Acts 1871, p. 109, § 7. But by the constitution of the state of 1880 it was declared that no parish or municipal tax, for all purposes whatsoever, shall exceed 10 mills on the dollar of valuation. The police jury showed that they had exhausted their power when the application for mandamus was made, by levying the full amount of taxes permissible under this constitutional provision, and the supreme court held they could not be compelled to levy 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 in their discussion of this question. We do not assert the proposition that a person 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 abolishing the office, or diminishing its duration, or removing him from office. So, though, when appointed, the law has provided a fixed compensation for his services, there is no contract 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. But, after the services have been rendered, under a law, resolution, or ordinance which fixes the rate of compensation, there arises an implied contract to pay for those services at that rate. This contract is a completed contract. Its obligation is perfect, and rests on the remedies which the law then gives for its enforcement. The vice of the argument of the supreme court of Louisiana is in limiting the protecting power of the constitutional provision against impairing the obligation of contracts, to express contracts,-to specific agreements,-and in rejecting that much larger class in which one party having delivered property, paid money, rendered service, or suffered loss at the request of or for the use of another, the law completes the contract 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 requested and rendered, and the obligation to pay for them perfect, but the measure of compensation was also fixed by the previous order of the police jury. There was here wanting no element of a contract. The judgment in the court for the recovery of this compensation concluded all these questions. Hall v. Wisconsin, 103 U.S. 10; Newton v. Commissions, 100 U.S. 559.

The provision of the constitution restricting the limit of taxation, so far as it was in conflict with the act of 1871, and as applied to the contract of plaintiff, impaired its obligation by destroying the remedy pro tanto.

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. 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 impair the obligation of a contract. Von Hoffman v. Quincy, 4 Wall. 535; Nelson v. St. Martin's Parish, 111 U.S. 716; S.C.. 4 Sup. Ct. Rep. 648.

The judgments of the supreme court of Louisiana are therefore reversed, and the cases are remanded to that court for further proceedings not inconsistent with this opinion.

Obligation of Contracts.

1. IMPAIRMENT OF OBLIGATION.

2. THE REMEDY.

3. PARTIES TO.

The obligation of a contract is that which requires the performance of the legal duties imposed by it, Blann v. State, 39 Ala. 353, and consists of that right or power over his will or action which a party by his contract confers on another, Ogden v. Saunders, 12 Wheat. 213; Lapsley v. Barshears, 4 Litt, 47, and includes everything within its object and scope. Sturges v. Crowninshield, 4 Wheat. 122; Bronson v. Kinzie, 1 How. 311. McCracken v. Hayward, 2 How. 608; Blair v. Williams, 4 Litt. 34; Blanchard v. Russell, 13 Mass. 1. It does not inhere and consist in the contract itself, but in the law applicable to the contract, Edwards v. Kearzey, 96 U.S. 595; Bronson v. Kinzie, 1 How. 311; McCracken v. Hayward, 2 How. 608; and laws relating to the validity, construction, discharge, and enforcement are a part of the contract, Edwards v. Kearzey, 96 U.S. 595; Von Hoffman v. Quincy, 4 Wall. 535; McCracken v. Hayward, 2 How. 608; the validity, construction, and remedy being part of the obligation. Green v. Biddle, 8 Wheat. 1; People v. Bond, 10 Cal. 570; Story v. Furman, 25 N. Y. 223; Walker v. Whitehead, 16 Wall. 314. The obligation of a contract commences at its date, Blair v. Williams, 4 Litt. 34. and depends on the laws in existence when it is made, Robinson v. Magee, 9 Cal. 84; Johnson v. Duncan, Philadelphia, 31 Pa. St. 175; Wood v. Wood, 14 Rich. Philadelphia, 31 Pa. St. 175; Wood v. Wood, 14 Rich 148; Smith v. Cleveland, 17 Wis. 556, and continues until the debt is paid, or the act performed, Baily v. Gentry, 1 Mo 164; Forsyth v. Marbury, R. M. Charl. 324, and extends to future possessions. Edwards v. Kearzey, 96 U.S. 595. The obligation of other things than contracts is not within the protecting clause of the constitution. Ogden v. Saunders, 12 Wheat. 213; Robinson v. Magee, 9 Cal. 84; Blair v. Williams, 4 Litt. 34.

1. IMPAIRMENT OF OBLIGATION. To impair, means to alter so as to make the contract more beneficial to one party and less to the other than by its terms it purports to be Baily v. Gentry, 1 Mo. 164. The impairment is not a question of degree, manner, or cause, Green v. Biddle, 8 Wheat. 1; Planters' Bank v. Sharp, 6 How. 301; S.C.. 4 Smedes & M. 17; Walker v. Whitehead, 16 Wall. 314; S.C.. 43 Ga. 538; Von Hoffman v. Quincy, 4 Wall. 535; Gault's Appeal, 33 Pa. St. 94; Farnsworth v. Vance, 2 Cold. 111; Winter v. Jones, 10 Ga. 190; it cannot be impaired in the remotest degree. Green v. Biddle, 8 Wheat. 1; Von Hoffman v. Quincy, 4 Wall. 535. Where a contract is discharged, Farmers' & Mech. Bank v. Smith, 6 Wheat. 131, or where it is destroyed, Robinson v. Magee, 9 Cal. 84, or an essential part is annulled, New Jersey v. Wilson, 7 Cranch, 164, or partially rescinded, Grimball v. Ross, T. U. P. Charl. 175, the obligation is impaired. The obligation is impaired by a statute which authorizes its discharge by a smaller sum, or at a different time, or in a different manner than stipulated. Golden v. Prince, 5 Hall, Law. J. 502; Edmonson v. Ferguson, 11 Mo. 344. A state can no more pass a law violating the obligation of a contract by means of a convention than by its legislature, Marsh v. Burroughs, 1 Woods, 463; see Pacific R. Co. v. Maguire, 20 Wall. 36; so a provision in a state constitution which prohibits the enforcement of a contract is void. White v. Hart, 13 Wall. 646; S.C.. 39 Ga. 306; French v. Tomlin, 19 Amer. Law Reg. 641; Jacoway v. Denton, 25 Ark. 625; McNealy v. Gregory, 13 Fla. 417; but see Shorter v. Cobb, 39 Ga. 285; Armstrong v. Lecompte, 21 La. Ann. 528; Dranguet v. Rost, Id. 538. A mere license given by charter to an incorporated company is not a contract, Beer Co. v. Massachusetts, 97 U.S. 25; Fertilizing Co. v. Hyde Park, Id. 659; so a provision in a constitution prohibiting lotteries is not an impairment of the obligations of a contract. Stone v. Mississippi, 101 U.S. 814.

2. THE REMEDY. The remedy enters into and forms a material part of the obligation of the contract. Von Hoffman v. Quincy, 4 Wall. 535; Walker v. Whitehead, 16 Wall. 314; S.C.. 43 Ga. 538; Gunn v. Barry, 15 Wall. 610; S.C.. 8 N. B. R. 1; Johnson v. Higgins, 3 Metc. (Ky.) 566. The validity and remedy are inseparable, and both are parts of the obligation, Walker v. Whitehead, 16 Wall. 314; S.C.. 43 Ga. 538; Scaine v. Blleville, 39 N. J. Law, 526; and a statute which enfeebles, Edwards v. Kearzey, 96 U.S. 595, or impairs the remedy, Bronson v. Kinzie, 1 How. 311; Green v. Biddle, 8 Wheat. 1; Smith v. Morse; 2 Cal. 524; Johnson v. Duncan, 3 Mart. 531; Coffman v. Bank. 40 Miss. 29, or lessens the efficacy of the remedy, Louisiana v. New Orleans, 102 U.S. 203, where the remedy is essential, Thompson v. Com. 81 Pa. St. 314, is prohibited. It was held in Sawyer v. Parish of Concordia, 12 Fed. Rep. 754, that when a municipal corporation has made a contract during the existence of a state law which provides an adequate remedy by compulsory taxation through the courts, that remedy is a vital element of the contract, and that the subsequent repeal of that law, and the adoption of a new constitution prohibiting the levy of any judgment tax and limiting all taxation to the current support of the local government, would impair the obligation of such a contract, and is therefor invalid.

3. PARTIES TO. The character of the parties to a contract does not prevent the application of the inhibitory provision of the constitution as to the impairment of the obligation of contracts. Trustees v. Rider, 13 Conn. 87; Regents v. Williams, 9 Gill & J. 365. So a contract wherein the state is a party is within the protecting clause of the constitution. Hall v. Wisconsin, 103 U.S. 5. This provision of the constitution is a limitation on the taxing power of the state, as the taxing power enters into and becomes a part of the obligation of the contract, U.S. v. Jefferson County, 7 Cent. Law J. 130; and a law changing the stipulation of a contract, or relieving a debtor from a strict and literal compliance with its requirements, is unconstitutional. Murray v. Charleston, 96 U.S. 432. So corporations are within the provisions of this section of the constitution as a part of the general law. Fletcher v. Peck, 6 Cranch, 89; State v. Wilson, 7 Cranch, 164; Terrett v. Taylor, 9 Cranch, 43; Town of Pawlet v. Clark, Id. 292; Green v. Biddle, 8 Wheat. 1; Astrom v. Hammond, 3 McLean, 107; Woodruff v. Trapnall, 10 How. 190; Derby T. Co. v. Parks, 10 Conn. 522; State Bank v. Bank of Cape Fear, 13 Ired. 75; Stanmire v. Taylor, 3 Jones, (N. C.) 207. As long as a city exists laws are void which withdraw or restrict its taxing power so as to impair the obligation of its contracts made on a pledge impliedly or expressly given. Von Hoffman v. Quincy, 4 Wall. 535; Wolff v. New Orleans, 103 U.S. 353.