United States v. Memphis, 97 U.S. 284

as an inducement to tax-payers to resist the payment of the ax j that by the provisions of the law governing the city, the ninth and tenth wards, generally denominated as the new limits, p. 286are exempt from the payment of any tax to pay for certain indebtedness of the city, and that the writ does not show whether the indebtedness is one of the excepted classes or not, and the determination of this question is a judicial one, which respondents cannot safely decide for themselves, and should be determined upon the face of the writ; that when the contract was made for the laying of said pavements, by which the aforesaid debts became due to him, it was understood and stipulated that the owners of abutting property should pay for the pavement in front of each lot ; that many persons paid for such pavement according to the terms of the contract, and when the act of March 18, 1873, was passed, it provided that such persons as had paid for the pavement and held receipts therefor might be excused or released from paying the tax levied to pay for such pavement, — wherefore respondents cannot levy and collect from all persons subject to pay taxes the tax as commanded by the writ, and therefore cannot obey the writ.

Brown demurred to the answer, on the ground that said act gave full power to levy the tax, and that the legislature could not repeal it so as to defeat his rights; that the court could not consider past levies which had not been paid; that said act makes no discrimination in favor of any person or class of persons; and that the voluntary payment of the special assessments was no defence to a lawful levy of taxes for the payment of his decree. The demurrer having been sustained, a peremptory writ was issued, March 30,1875, commanding that the city and its general council “ proceed each for the ensuuig three years, to wit, 1875, 1876, 1877, respectively, at the same time and in the same manner that other taxes are assessed and levied and collected, to assess, levy, and collect upon all the property within the city taxable by law, a tax, in addition to all other taxes allowed by law, payable in lawful money of the United States of America, sufficient in amount, after makinB due allowance for all delinquencies, insolvencies, and defaults, to realize $125,000 each year, for the years 1875 and 1 , respectively, and so much of the said sum for the remaining year, to wit, 1877, as may be required or necessary to pay an satisfy the balance of the said decree, including interest and cos , p. 287not satisfied by the taxes collected and paid over during the two preceding years.”

ers having refused so to pay, and suit having been brought to compel them, the Supreme Court of Tennessee declared said p. 288act of 1866 unconstitutional and void, and that the sums so due must be raised by general taxation; that the act of March 18, 1873, was thereupon passed, empowering the city to levy a tax in addition to all other taxes allowed by law, sufficient to cover the entire cost of said pavements; that on March 20, 1875, the act of 1873 was repealed, and that suits were then pending to restrain the levy of any tax on the property of those persons who had paid to the contractors. This return was, on motion of Brown, stricken out. He then filed an affidavit setting forth his belief that the tax of fifty-four cents on the one hundred dollars’ worth of taxable property was insufficient to pay the sum for the year 1875, required by the peremptory writ to be paid on his decree; that the value of the entire taxable real and personal property in the city, including the $2,000,000 in the ninth and tenth wards, was $23,000,000; but that from the operation of said tax the property in said wards and that of persons who had paid the special assessments, as well as the taxable capital of merchants, was excepted. He therefore prayed for an “alias writ of mandamus commanding the city of Memphis and its mayor and general council to make a further or additional levy of taxes on all the taxable, property of the city of Memphis, including the capital of merchants as taxable, and excluding the property in the ninth and tenth wards of the city, and the property aforesaid on which the said special assessments for the Nicholson pavement costs were so paid, as exempt from such taxation, such an amount in addition to the levy already made as will be sufficient to pay to him the entire sum of $125,000, to which he was entitled as aforesaid; and that the said levy may be made upon the taxable property as assessed and returned for the year 1875, and may not be further postponed.”

On March 2, 1876, the court ordered “that an alias peremptory writ of mandamus do forthwith issue, directed to the ci y of Memphis, and the mayor and general council, commanding them to proceed, when they next levy taxes, to levy, in addition to the tax already levied for the payment of the plaintiff s e-cree under the requirements of the original writ herein issue , a further tax on all the taxable property of the city, excluding from such taxable property the property of persons residing id p. 289the ninth and tenth wards of the city, and the property on which the assessments for the payment of the costs of the Nicholson pavement have been paid, the same being, as the court adjudges, exempt from taxation for the payment of the said decrees, sufficient in amount, when added to the tax heretofore levied under the original writ, to yield to the plaintiff $125,000; and to collect the said taxes so to be levied as speedily as the same can lawfully be done, and to pay over to the plaintiff forthwith, from time to time as the same may be received, the sums collected, taking his receipt therefor; and that they make due return to the court herein, on the return-day of the writ, of the manner in which they have obeyed the same.”

Though in large part the pavements were constructed a ter the ninth and tenth wards became a part of the city, we thin , within the meaning of the act of 1869, the debt must be e as having been contracted when the contracts were made, was then the city assumed the liability and took up the bur e which is now in judgment. It appears quite plainly that legislature, in the act of 1869, did not intend to use the wo p. 291“debt” in its technical sense. Looking at the spirit of the act rather than to its letter, the purpose evidently was to relieve the new territory brought into the city by the act of 1867 from obligations previously incurred by the city for objects in which the added territory had no interest when the obligations were assumed, and in regard to which it had no voice.

That act, however, was passed. In terms it relieved the people of the ninth and tenth wards from liability to pay any part of the debt of the city contracted before they came into it. It is still the law of the State, unless it violates some provision of the Constitution. The relator contends that it is in conflict with the ordinance that “ no retrospective law, or law impairing the obligation of contracts, shall be passed.” To this we cann° assent. The act was wholly prospective in its operation when it was passed. It furnished a rule only for the future, and it interfered with no vested rights, or with the obligation o any contract. There never was any contract relation between t e people of those wards and Brown, the relator. The utmost e ect of the act of 1867 was to give the contractors with the ci y, after their contracts were made, a possibly enlarged remedy; an the act of 1869 withdrew the gift before any absolute right o it had been acquired, before the act of 1873 was passed, — e act which authorized taxation to pay the debt contracted. e same power which added the wards to the city might have cvered them from it. Had they been parts of the city when p. 292the contracts were made, and subsequently been severed from it, no one could successfully contend they would have remained liable to city taxation for any city purpose. It is evident, therefore, that neither any vested right nor any contract obligation was disturbed by the act of 1869, which declared those wards exempt from taxation for any debt contracted before they were incorporated into the city.

The remaining assignment of error is that the court 01 the additional levy to be made on the assessment for > instead of the assessment for 1875. It does not appear ceitain y p. 293that such was the order of the court. It was made on the 2d of March, 1876, and it directed the mayor and council to levy the additional tax when they next levied taxes. Whether the basis of the levy was to be the assessment of 1875 or that of 1876 is not clear, nor is it a matter of any importance. It is not claimed that the aggregate assessment for the latter year was less in amount than that of the former. It is not, therefore, apparent that the relator was hurt by the order. The city is required to levy a tax sufficient in amount to yield to him the sum mentioned, and that secures his rights.

®y assumed. It is, however, no less true that vested rights may be acquired by the creditor under it and by virtue of it; an when such rights have been acquired, they are beyond the reach of the legislature, and the repeal of the law will not affect p. 296them. As to them the law continues in force, notwithstanding its repeal.

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, 187 a, 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 Houses ; and we are referred to Dyer n . States, Meigs (Tenn.), 237-255, and to Turner v. Oburn, 2 Coldw. (Tenn.) 460. Those decisions were under the Constitution of 1834, which did not require the approval of the governor, or a passage of the bill over his objection, to make a binding statute as the Constitution of 1870 does. It is true the earlier Constitution required the signature of an act by the respective speakers of the House. That was for the purpose of attestation only, and the act was then said to take effect on the day of its passage. The later Constitution demands the same signatures, and it demands more, namely, the approval of the governor. It also ordains that no bill shall become a law until it shall have received his approval, or shall have been otherwise passe under the provisions of the Constitution ; that is, as we,under- p. 297stand it, over his refusal to approve. The executive is thus made a necessary constituent of the law-making power. If with this be considered the declaration of the Constitution, that no retrospective law, or law impairing the obligation of contracts, shall be made, the conclusion is inevitable, that the repealing act had no effect upon any thing that was done before March 23, 1875. But before that day we think the relator had acquired a vested right by his judgment and his alternative writ of mandamus to have a tax levied sufficient to pay the debt due to him from the city, — a right of which he could be deprived by no subsequent action of the legislature.

, in justice and common honesty, be regarded as equally p. 298secure for his indemnity. But if we are in error in this, it is still enough that by his judgment and his writ of mandamus he acquired a vested right to have the tax collected which the writ ordered.

The remaining questions in the case are of minor importance. It is said there was error in adjudging that the tax to be levied should be payable only in lawful money of the United States. p. 299We do not perceive in this any error. The judgment of the relator could be paid only with such money; and the tax ordered was to be sufficient in amount, after making due allowances for all delinquencies, insolvencies, and defaults, &c., to realize $125,000 each year for the years 1875, 1876, respectively, and as much of said sum for the remaining year (1877) as may be required to pay and satisfy the balance of the decree in favor of the relator, with interest and costs, not satisfied by former taxes collected and paid. The meaning of the writ is, that sufficient money shall be collected. If the city elect to credit in payment of the levy what the lot-owners have paid, the mandamus does not forbid it; but a sufficient levy must be made and collected to raise in money the sums ordered to be paid in satisfaction of the decree in favor of the relator. This was plainly right.