1. The legislature of a state does not impair the obligation of
a contract by enlarging, limiting, or altering the modes of
proceeding for enforcing it, provided that the remedy be not
withheld nor embarrassed with conditions and restrictions which
seriously impair the value of the right.
2. The act of the Legislature of Tennessee providing that there
shall be no other remedy in any case of the collection of revenue,
or attempt to collect revenue illegally, or attempt to collect
revenue in funds only receivable by a collector of taxes under the
law, the same being other or different funds than such as the
taxpayer may tender or claim the right to pay, than by paying the
tax under protest, and within thirty days thereafter suing the
collector to recover it, the judgment, if for the taxpayer, to be
paid in preference to other claims on the treasury, does not leave
a party with out an adequate remedy for asserting his right to pay
his state taxes in certain bills, made receivable therefor under
the charter granted to the Bank of Tennessee in the year 1838, but
which bills the collector refused to accept.
Page 96 U. S. 70
MR. JUSTICE HUNT delivered the opinion of the Court.
In the month of March, 1874, Bloomstein, the relator, presented
his petition to the state circuit court sitting at Nashville,
Tenn., in which he stated that he was the owner of certain real and
personal estate, which was assessed for state taxes in the year
1872 to the amount of $132.60; that he tendered to Sneed, who was
collector of taxes for Davidson County, in payment of said taxes,
the amount thereof in "funds receivable by law for such purposes;"
that the collector refused to receive the same, but issued a
warrant to his deputy to collect the amount claimed; that he has
ever since been ready to make such payment, and now brings said
funds into court to abide the action with respect thereto; that
said funds consist of $2.60 in legal tender currency of the United
states and $130 in bills of the Bank of Tennessee, which were
issued subsequently to May 6, 1861, although some of them bear an
earlier date; that the bills tendered were originally made payable
in gold or silver coin, and were embraced within the twelfth
section of the act chartering said bank. He prayed for an
alternative writ of mandamus to compel the collector to receive the
said bills in payment of such taxes, or to show cause to the
contrary.
To this writ the defendant, in answer, showed, among others, the
following causes why the writ should not issue:
1. That the suit is expressly prohibited by the Act of the
General Assembly of the state passed Feb. 21, 1873, c. 13, sec. 2.
2. That it is prohibited by the act (c. 44) of the same year. 3.
That the receipt of such bank notes in payment of taxes was
prohibited by the Constitution of the state of Tennessee of 1865.
4. That no such action lay at common law to enforce action by an
officer in defiance of the legislative command. 8. That the notes
were issued in aid of the late war against the United states.
The petition having been dismissed, the case was thereupon
Page 96 U. S. 71
taken to the supreme court of the state. On the 26th of May,
1875, a judgment of affirmance was rendered.
It is from this judgment that the writ of error to this Court is
brought.
The bank in question was chartered in the year 1838, and its
charter contained, as its twelfth section, the following
provisions:
"SEC. 12. Be it enacted, that the bills or 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 judgment of the supreme court declared that the present
proceeding was virtually a suit against the state, and that it was
not maintainable prior to the act of 1855, which act was carried
into the Code as sec. 2807. By this act it was provided that suits
might be brought against the state "under the same rules and
regulations that govern actions between private persons," and that
process commencing the same might be served upon the attorneys
general of the several districts. This act was repealed in 1865,
many years before the commencement of this proceeding, and again in
1873, by the acts presently to be mentioned. We have in the present
action a decision of the supreme court of the state upon its own
statutes and modes of proceeding, to the effect, 1st, that a writ
of mandamus, in a case like the present, is a proceeding against
the state, and, 2d, that it cannot be sustained in this case.
On the 28th of February, 1873, the Legislature of Tennessee
enacted
"That no court has, or shall hereafter have, any power,
jurisdiction, or authority to entertain any suit against the state,
or against any officer of the state acting by authority of the
state with a view to reach the state, its treasury funds or
property, and all such suits now pending or hereafter brought,
shall be dismissed as to the state or such officer on motion, plea,
or demurrer of the law officer of the state or counsel employed by
the state."
On the 21st of March, 1873, it enacted
"That in all cases in which an officer, charged by law with the
collection of revenue
Page 96 U. S. 72
due the state, shall institute any proceeding, or take any steps
for the collection of the same, alleged or claimed to be due by
said officer from any citizen, the party against whom the
proceeding or step is taken shall, if he conceives the same to be
unjust or illegal or against any statute or clause of the
Constitution of the state, pay the same under protest, and upon his
making said payment, the officer or collector shall pay such
revenue into the state treasury, giving notice at the time of
payment to the comptroller that the same was paid under protest,
and the party paying said revenue may at any time within thirty
days after making said payment, and not longer thereafter, sue the
said officer having collected said sum for the recovery thereof.
And the same may be tried in any court having the jurisdiction of
the amount and parties, and if it be determined that the same was
wrongfully collected, as not being due from said party to the
state, for any reason going to the merits of the same, then the
court trying the case may certify of record that the same was
wrongfully paid and ought to be refunded, and thereupon the
comptroller shall issue his warrant for the same, which shall be
paid in preference to other claims on the treasury."
Sect. 2 of the act provides
"That there shall be no other remedy, in any case of the
collection of revenue, or attempt to collect revenue illegally, or
attempt to collect revenue in funds only receivable by said officer
under the law, the same being other or different funds than such as
the taxpayer may tender, or claim the right to pay, than that above
provided, and no writ for the prevention of the collection of any
revenue claimed, or to hinder or delay the collection of the same,
shall in any wise issue, either injunction, supersedeas,
prohibition, or any other writ or process whatever; but in all
cases in which for any reason any person shall claim that the tax
so collected was wrongfully or illegally collected, the remedy for
said party shall be as above provided, and in no other manner."
The act of March 25, 1873, provides
"That the several tax collectors shall receive, in discharge of
the taxes and other dues to the state, bank notes of the Bank of
Tennessee, known as the old issue, warrants on the treasury legally
outstanding, gold, silver, national bank notes, and nothing else.
"
Page 96 U. S. 73
It is said that the acts of 1873, to which reference is made,
are laws impairing the obligation of the contract contained in the
twelfth section of the bank charter. This is done, it is said, not
by a direct infraction of the obligation, but by placing such
impediments and obstructions in the way of its enforcement, by so
impairing the remedies, as practically to render the obligation of
no value. This is the only point in the case involving a question
of federal jurisprudence, and the only one that it is necessary for
us to consider. 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.
There are, no doubt, many cases holding that the remedy may be
so much impaired as to affect the obligation of the contract. In
Webster & Mann v. Rose, 6 Heisk. (Tenn.) 93, a stay
law was decided to be unconstitutional. In
Blair v.
Williams, 4 Litt. (Ky.) 34, the same was held of a law
extending the time of a replevin beyond that in existence when the
contract was made.
In
Malony v. Fortune, 14 Ia, 417, and in
Cargill v.
Power, 1 Mich. 369, an extension of time for the redemption of
a preexisting mortgage was held to be unconstitutional.
In
Willard v. Longstreet, 2 Dougl. (Mich.) 172, a law
forbidding the sale of property on execution for less than
two-thirds of its appraised value was to be unconstitutional as to
preexisting contracts.
In
Walker v. Whitehead, supra, it is said,
"Nothing is more material to the obligation of a contract than
the means of its enforcement. The ideas of validity and remedy are
inseparable, and both are parts of the obligation which is
guaranteed by the Constitution against impairment."
These are the authorities quoted to sustain the plaintiff's
theory, and the list might easily be enlarged.
On the other hand, our own reports and those of the states are
full of cases holding that the legislature may alter and modify the
remedy to enforce a contract without impairing its obligation. The
case of
Sturges v.
Crowninshield, 4 Wheat. 122, is among the first of
the class where the question arose upon the
Page 96 U. S. 74
abolition of the right of imprisonment of the debtor as a means
of compelling payment of his debt.
Mason v.
Haile, 12 Wheat. 370, was a case of the same class.
Mr. Justice Thompson says:
"Imprisonment of the debtor . . . may be allowed as a means of
inducing him to perform his contract, but a state may refuse to
inflict this punishment, . . . and leave the contract in full
force. Imprisonment is no part of the contract, and simply to
release the prisoner does not impair its obligation."
On the general subject, and for numerous illustrations,
reference is made to the following cases, which it is not necessary
to examine in detail:
Bronson v.
Kinzie, 1 How. 311;
Von
Hoffman v. City of Quincy, 4 Wall. 535;
Bruce
v. Schuyler, 9 Ill. 221, in each of which a large number of
cases is collected.
If a particular form of proceeding is prohibited and another is
left or is provided which affords an effective and reasonable mode
of enforcing the right, the obligation of the contract is not
impaired.
Bronson v. Kinzie, supra; Huntzinger v. Brock, 3
Grant's Cases (Pa.) 243;
Evans v. Montgomery, 4 Watts
& S. (Pa.) 218;
Read v. Frankfort Bank, 23 Me.
318.
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 conditions and restrictions as
seriously to impair the value of the right.
Bronson v. Kinzie,
supra.
If we assume that prior to 1873, the relator had authority to
prosecute his claim against the state by mandamus, and that by the
statutes of that year the further use of that form was prohibited
to him, the question remains whether an effectual remedy was left
to him or provided for him. We think the regulation of the statute
gave him an abundant means of enforcing such right as he possessed.
It provided that he might pay his claim to the collector under
protest, giving notice thereof to the comptroller of the treasury;
that at any time within thirty days thereafter he might sue the
officer making the collection; that the case should be tried by any
court having jurisdiction, and, if found in favor of the plaintiff
on the merits, the court should certify that the same was
wrongfully
Page 96 U. S. 75
paid and ought to be refunded, and the comptroller should
thereupon issue his warrant therefor, which should be paid in
preference to other claims on the treasury.
This remedy is simple and effective. A suit at law to recover
money unlawfully exacted is as speedy, as easily tried, and less
complicated than a proceeding by mandamus. Every attorney knows how
to carry on the former, while many would be embarrassed by the
forms of the latter. Provision is also made for prompt payment of
the amount by the state if judgment is rendered against the officer
on the merits.
We are not cited to any statutes authorizing suits to be brought
against a state directly, and we know of none. In a special and
limited class of cases, the United states permits itself to be sued
in the Court of Claims, but such is not the general rule. In
revenue cases, whether arising upon its internal revenue laws or
those providing for the collection of duties upon foreign imports,
it adopts the rule prescribed by the State of Tennessee. It
requires the contestant to pay the amount as fixed by the
government, and gives him power to sue the collector, and in such
suit to test the legality of the tax. There is nothing illegal or
even harsh in this. It is a wise and reasonable precaution for the
security of the government. No government could exist that
permitted the collection of its revenues to be delayed by every
litigious man or every embarrassed man, to whom delay was more
important than the payment of costs.
We think there is no ground for the assertion that a speedy and
effective remedy is not provided to enforce the claim set up by the
plaintiff. This is the only question properly before us, and we are
of the opinion that it presents no ground for reversing the
judgment of the court below.
The other important questions discussed in the opinion of the
court below and argued by the counsel it is not necessary here to
examine; they do not arise at this time.
Judgment affirmed.