Memphis v. United States

• Citation: 97 U.S. 293,24 L.Ed. 920
• Parties: MEMPHIS v. UNITED STATES
• Decision Date: 01 October 1877
• Court: United States Supreme Court

97 U.S. 293

24 L.Ed. 920

MEMPHIS v. UNITED STATES.

October Term, 1877

ERROR to the Circuit Court of the United States for the Western District of Tennessee.

The facts involved in this case are the same as those in United States v. Memphis, supra, p. 284.

The city of Memphis, by whom this writ was sued out, assigns the following errors:——

The court below erred——

1. In holding that the city of Memphis had the power or was under the duty of levying the tax, as adjudged.

2. In holding that the legislature had no power to repeal the act of March 18, 1873.

3. In adjudging that the tax to be levied should be payable only in lawful money of the United States, as the act of March 18, 1873, required the city of Memphis to receive, in payment of the tax therein authorized, 'any sum or sums, with interest, paid by persons in satisfaction, or part satisfaction, of said special assessments, illegally levied and collected as aforesaid.'

4. In holding that a new and further tax be laid, sufficient to pay the entire decree, for $292,133.47, the return to the alternative writ disclosing that under a former mandate of the court the city had made a special levy of $302,742.69, for the purpose of paying the decree; that of said levy $132,742.69 had been collected and paid over, and the remainder, $170,000, was being collected and paid over as rapidly as possible.

5. In awarding the writ of mandamus commanding the levy of a tax sufficient in amount, after making due allowances for all delinquencies, insolvencies, and defaults, to pay the decree.

6. In awarding the peremptory writ of mandamus.

Mr. W. Y. C. Humes and Mr. S. P. Walker for the plaintiff in error.

Mr. William M. Randolph, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

The important question in this case is, whether the law of the State empowered the city of Memphis to levy the tax which by the writ of mandamus it was commanded to levy. If it did not, the award of the writ cannot be sustained, for a mandamus will not be granted to compel the levy of a tax not authorized by law.

By an act of the legislature passed on the 18th of March, 1873, it was enacted as follows:—— 'That where an incorporated town or city has, by virtue of presumed authority to lay special assessments for specific purposes, levied and collected taxes or special assessments, the right to make which levy and assessment was afterwards declared void by the Supreme Court of the State, said town or city shall have the power to levy a tax, in addition to all other taxes allowed by law to be levied, sufficient to cover the entire cost of the improvement, with interest thereon, for which said special assessments were illegally made, and in the levying of such additional tax authority is hereby given to such town or city to allow as valid payments on said additional tax any sum or sums, with interest, paid by persons in satisfaction, or in part satisfaction, of said special assessments, illegally levied and collected as aforesaid.'

This statute, it is true, was not in existence when the plaintiff's contract with the city was made, but it is confessedly available for him, unless it was repealed before he acquired any rights under it. Plainly it was enacted to meet his case, and had there been no repeal, the question now raised would not be before us. It is claimed, however, that it was repealed before the Circuit Court awarded the mandamus, and what was the effect of that legislative action upon the power of the court in this case becomes therefore a very important question. It is an acknowledged principle that a creditor by contract has a vested right to the remedies for the recovery of the debt which existed at law when the contract was made, and that the legislature of a State cannot take them away without impairing the obligation of the contract, though it may modify them, and even substitute others, if a sufficient remedy be left, or another sufficient one be provided. The law is in effect a part of the contract. But it is not so clear that when a new remedy is authorized after a contract has been made, that remedy may not be wholly taken away by the legislature, before any vested rights have been acquired under it. In such a case the parties did not contract with reference to it, and it did not enter into their agreement. It had nothing to do with the obligations they assumed. It is, however, no less true that vested rights may be acquired by the creditor under it and by virtue of it; and when such rights have been acquired, they are beyond the reach of the legislature, and the repeal of the law will not affect them. As to them the law continues in force, notwithstanding its repeal.

In this case the relator recovered his judgment against the city on the 16th of March, 1875. Into that judgment his contract was merged, and it no longer had any legal existence. If, as asserted by Blackstone, the judgment was itself a contract, the remedies for its enforcement, existing at the time when it was recovered, could not be taken away either by direct legislation, or indirectly, by repealing the law which gave those remedies. And if the judgment may not be considered a contract of record, still the vested rights it gave to the relator, whatever they were, are equally secure against legislative invasion.

After the judgment was obtained an execution was issued to collect the amount of it, and on the 22d of March, 1875, the alternative mandamus was issued to compel the levy of the tax of which the city now complains. It was not until after all this that the act of March 18, 1873, was repealed. The act repealing it was approved by the governor on the 23d of March, 1875, and it became a law only from the time of his approval. Such is the generally received doctrine. See cases cited in 4 Abb. Nat. Dig. 223. It is said, however, the rule in Tennessee is different; and it is contended that as the act passed the two Houses on the 20th of March, though not approved by the governor until the 23d, it took effect, by relation, on the day of its passage through the two House; and we are referred to Dyer v. States, Meigs (Tenn.),...