# Antoni v. Greenhow/Opinion of the Court

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* Case Syllabus
* Opinion of the Court
* Concurring Opinions Matthews Clifford
* Dissenting Opinions Field Harlan
United States Supreme Court
107 U.S. 769
Antoni v. Greenhow
On the thirtieth of March, 1971, the general assembly of Virginia passed an act to provide for the funding and payment of the public debt, by which two-thirds of the amount due on old bonds might be funded in new bonds, with interest coupons attached, 'receivable at and after maturity for all taxes, debts, dues, and demands due the state.' Under this act many bonds were put out with coupons which expressed on their face that they were receivable for taxes. On the seventh of March, 1872, however, the general assembly passed another act prohibiting the officers charged by law with the collection of taxes from receiving in payment anything else than gold and silver coin, United States treasury notes, and notes of the national banks, and repealing all other acts inconsistent therewith.
The supreme court of appeals of Virginia decided, at its November term, 1872, in the case of Antoni v. Wright, 22 Grat. 833, that in issuing these bonds the state entered into a valid contract with all persons taking the coupons to receive them in payment of taxes and state dues, and that the act of 1872, so far as it conflicted with this contract, was void. The authority of this case was recognized in Wise v. Rogers, 24 Grat. 169; and in Clarke v. Tyler, 30 Grat. 137, decided in 1878, it was said: 'This decision of Antoni v. Wright * * * must be held to be the settled law of this state.' The same questions were decided in the same way here at the October term, 1880, in Greenhow v. Hartman, 102 U.S. 672, and are no longer open in this court. Any act of the state which forbids the receipt of these coupons for taxes is a violation of the contract, and void as against coupon holders.
At the time the act of 1871 was passed, and when the bonds and coupons were issued, the supreme court of appeals of the state had jurisdiction to grant writs of mandamus in all cases where mandamus would lie according to the principles of the common law, if necessary to prevent a failure of justice; and in Antoni v. Wright, ubi supra, it was decided that the writ of mandamus was the proper remedy to compel a collector to accept the coupons in question when offered in payment of taxes. The case of Wise v. Rogers presented the same question, and we understand it to have been the settled practice of that court to entertain suits for similar relief. The form and mode of proceeding were regulated by statute, which provided (Code Va. 1873, p. 1023, c. 151, § 1) that when the return was made to a writ of mandamus it should state plainly and concisely the matter of law or fact relied on in opposition to the complaint; that the complainant might thereupon demur to the return, or plead thereto, or both, and that the defendant might reply, take issue on, or demur to the pleas of the complainant. The case was to be tried at the place where writs of error to the court were to be tried, (Code, p. 1051,) and after a verdict was found, or judgment rendered on demurrer or otherwise, for the person suing out the writ, he could recover his costs, with such damages as the jury might assess, and have forthwith a peremptory writ.
On the fourteenth of January, 1882, the general assembly passed another act, of which the following is a copy:
'Chapter 7. An act to prevent frauds upon the commonwealth and the holders of her securities in the collection and disbursement of revenues.
'Whereas, bonds purporting to be the bonds of this commonwealth, issued by authority of the act of March 30, 1871, entitled 'An act to provide for the funding and payment of the pbulic debt,' and under the act of March 28, 1879, entitled 'An act to provide a plan of settlement of the public debt,' are in existence without authority of law;
'And whereas, other such bonds are in existence which are spurious, stolen, or forged, which bonds bear coupons in the similitude of genuine coupons, receivable for all taxes, debts, and demands due the commonwealth;
'And whereas, the coupons from such spurious, stolen, or forged bonds are received in payment of taxes, debts, and demands;
'And whereas, genuine coupons from genuine bonds, after having been received in payment of taxes, debts, and demands, are fraudulently reissued and received more than once in such payments;
'And whereas, such frauds on the rights of the holders of the aforesaid bonds impair the contract made by the commonwealth with them, that the coupons thereon should be received in payment of all taxes, debts, and demands due the said commonwealth, and at the same time defraud her out of her revenues:
'Therefore, for the purpose of protecting the rights of said bondholders, and of enforcing the said contract between them and the commonwealth, preventing frauds in the revenue of the same—
'(1) Be it enacted by the general assembly of Virginia, that whenever any tax-payer or his agent shall tender to any person whose duty it is to collect or receive taxes, debts, or demands due the commonwealth, any papers or instruments in print, writing, or engraving, purporting to be coupons detached from bonds of the commonwealth issued under the act of 1871, entitled 'An act to fund the public debt,' in payment of any such taxes, debts, and demands, the person to whom such papers are tendered shall receive the same, giving the party tendering a receipt stating that he has received the same for the purpose of identification and vertification.
'(2) He shall at the same time require such tax-payer to pay his taxes in coin, legal-tender notes, or national-bank bills, and upon payment give him a receipt for the same. In case of refusal to pay, the taxes due shall be collected as all other delinquent taxes are collected.
'(3) He shall make each paper as coupons so received, with the initials of the tax-payer from whom received, and the date of receipt, and shall deliver the same, securely sealed up, to the judge of the county court of the county, or hustings court of the city, in which such taxes, debts, or demands are payable. The tax-payer shall thereupon be at liberty to file his petition in said county court against the commonwealth; a summons to answer which petition shall be served on the commonwealth's attorney, who shall appear and defend the same. The petition shall allege that he has tendered certain coupons in payment of his taxes, debts, and demands, and pray that a jury be impaneled to try whether they are genuine, legal coupons, which are legally receivable for taxes, debts, and demands. Upon this petition an issue shall be made in behalf of the commonwealth which shall be tried by a jury, and either party shall have a right to exceptions on the trial, and of appeal to the circuit court and court of appeals. If it be finally decided in favor of the petitioner that the coupons tendered by him are genuine, legal coupons, which are legally receivable for taxes and so forth, then the judgment of the court shall be certified to the treasurer, who, upon the receipt thereof, shall receive said coupons for taxes, and shall refund the money before then paid for his taxes by the tax-payer out of the first money in the treasury, in preference to all other claims.
'(4) Whenever any tax-payer shall apply to any court in this commonwealth for a mandamus to compel any person authorized to receive or collect taxes, debts, or demands due the commonwealth to receive coupons for taxes, it shall be the duty of such person to make returns to said mandamus that he is ready to receive said coupons in payment of such taxes, debts, and demands as soon as they have been legally ascertained to be genuine, and the coupons which by law are actually receivable. Upon such return, the court before whom the application is made shall require the petitioner to pay his taxes to the tax-collector of his county or city, or to the treasurer of the commonwealth, and upon filing the receipt for such taxes in such court the said court shall direct the petitioner to file his coupons in such court, which shall then forward the same to the county court of the county or hustings court of the city where such taxes are payable, and direct such court to frame an issue between the petitioner as plaintiff and the commonwealth as defendant as to whether the coupons so tendered are genuine coupons, legally receivable FOR TAXES. ON THE TRIAL OF THE CAUSE the attorney fOr the commonwealth in the lower courts and the attorney general in the supreme court of appeals shall appear for the commonwealth and require proof of the genuineness and legality of the coupons in issue. Either party shall be entitled to exceptions, and an appeal to the circuit court and supreme court of appeals on the trial of this issue. If the decision be finally in favor of the petitioner, the mandamus shall issue requiring the coupons to be received for said taxes and so forth, and they shall be so received; and on the certificate of such judgment the treasurer of the commonwealth shall forthwith refund to the tax-payer the amount of currency or money before then paid by him out of the first money in the treasury, in preference to all other claims.
'(5) This act shall be in force from its passage.'
On the twentieth of March, 1882, Andrew Antoni, who owed the state taxes to the amount of $3.15, tendered the treasurer of the city of Richmond, the lawful tax-collector, a coupon, of the issue of 1871, for $3,15, lawful money, in payment. This tender was refused, and Antoni, on the twenty-eighth of March, petitioned the supreme court of appeals for a mandamus to require its acceptance. The treasurer, on the thirtieth of March, for a return to an order to show cause, said he was ready to receive the coupon as soon as it had been legally ascertained to be genuine, and such as by law was actually receivable. To this return a demurrer was filed. Upon the hearing of the demurrer, the court being equally divided in opinion on the questions involved, 'in pursuance of an act of assembly in such case made and provided,' denied the writ. From a judgment to that effect this writ of error was brought.
The question we are now to consider is not whether, if the coupon tendered is in fact genuine and such as ought, under the contract, to be received, and the tender is kept good, the treasurer can proceed to collect the tax by distraint, or such other process as the law allows, without making himself personally responsible for any trespass he may commit, but whether the act of 1882 violates any implied obligation of the state in respect to the remedies that may be employed for the enforcement of its contract, if the collector refuses to take them.
It cannot be denied that, as a general rule, laws applicable to the case which are in force at the time and place of making a contract, enter into and form part of the contract itself, and 'that this embraces alike those laws which affect its validity, construction, discharge, and enforcement,' (Walker v. Whitehead, 16 Wall. 317,) but it is equally well settled that changes in the forms of action and modes of proceeding do not amount to an impairment of the obligations of a contract, if an adequate and efficacious remedy is left. This limitation upon the prohibitory clause of the constitution is respect to the legislative power of the states over the obligation of contracts was suggested by Chief Justice MARSHALL in Sturges v. Crowningshield, 4 Wheat. 200, 207, and has been uniformly acted on since. Mason v. Haile, 12 Wheat. 378; Bronson v. Kinzie, 1 How. 316; Von Hoffman v. Quincy, 4 Wall. 553; Drehman v. Stifle, 8 Wall. 602; Gunn v. Barry, 15 Wall. 623; Walker v. Whitehead, 16 Wall. 318; Terry v. Anderson, 95 U.S. 633; Tennessee v. Sneed, 96 U.S. 69; Louisiana v. Pilsbury, 105 U.S. 301.
As was very properly said by Mr. Justice SWAYNE in Von Hoffman v. Quincy, ubi supra, 'it is competent for the states to change the form of the remedy, or to modify it otherwise, as they may see fit, provided no substantial right secured by the contract is thereby impaired. No attempt has been made to fix definitely the line between alterations of the remedy, which are to be deemed legitimate, and those which, under the form of modifying the remedy, impair substantial rights. Every case must be determined upon its own circumstances. Whenever the result last mentioned is produced, the act is within the prohibition of the constitution, and to that extent void.' In all such cases the question becomes, therefore, one of reasonableness, and of that the legislature is primarily the judge. Jackson v. Lamphire, 3 Pet. 290; Terry v. Anderson, ubi supra. We ought never to overrule the decision of the legislative department of the government unless a palpable error has been committed. If a state of facts could exist that would justify the change in a remedy which has been made, we must presume it did exist, and that the law was passed on that account. Munn v. Illinois, 94 U.S. 132. We have nothing to do with the motives of the legislature, if what they do is within the scope of their powers under the constition.
The right of the coupon holder is to have his coupon received for taxes when offered. The question here is not as to that right, but as to the remedy the holder has for its enforcement when denied. At the time the coupon was issued there was a remedy by mandamus from the supreme court of appeals to compel the tax-collector to take the coupon and cancel the tax. This implied a suit, with process, pleadings, issues, trial, and judgment. No restrictions were placed on the defenses the collector could make. He might raise such issues as he chose. Without the aid of some restraining power, the mere pendency of the suit would not prevent the collector from proceeding according to law with the collection of the tax. He might, if he went on, subject himself to liability for damages, if the tender was one he ought to have accepted; but there was nothing to prevent his going on if he chose to take this risk.
Under this law the trial must be had in the supreme court of appeals, and at the time and place where that court was to be held for other purposes. There was nothing in the law to give these cases preference over others for trial. So far as we are informed, they stood as other cases before the court, and subject to such orders as should seem to be reasonable. The tax-collector could not be compelled to accept the coupon and discharge the tax until final judgment. If the final judgment was in favor of the holder, he recovered his costs and such damages as the jury might give him.
Under section 4 of the act of 1882, when a mandamus is asked for, the collector is required by law to return to the alternative writ or rule 'that he is ready to receive said coupons in payment of such taxes, * * * as soon as they have been legally ascertained to be genuine, and the coupons which by law are actually receivable.' Upon such return the court must require the petitioner to pay his taxes, which being done the coupons are taken and forwarded to the county court of the county, or the hustings court of the city, where the taxes are payable, with directions to that court to frame an issue between the petitioner as plaintiff, and the commonwealth as defendant, as to whether the coupons so tendered are genuine coupons, legally receivable for taxes. Upon this issue proof of the genuineness and legality of the coupons must be made. Either party may take exceptions and carry the case, on appeal, to the circuit court and supreme court of appeals. If the decision is in favor of the petitioner a mandamus is to issue and the money he paid returned to him out of the first money in the treasury, in preference to all other claims.
The following changes are thus made in the old remedy: (1) The taxes actually due must be paid in money before the court can proceed, after the collector has signified in the proper way his willingness to receive the coupons, if they are genuine and in law receivable; (2) the coupons must be filed in the court of appeals; and (3) they must be sent to the local court to have the fact of their genuineness and receivability determined, subject to an appeal to the circuit court and the supreme court of appeals. As the suit is for a mandamus, all the provisions of the general law regulating the practice, not inconsistent with the new law, remain, and if the petitioner succeeds in getting his peremptory writ he will recover his costs. No issues are required that it would not have been in the power of the collector to raise before the change was made, and there is no additional burden of proof imposed to meet the issues, so that the simple question is, whether the requirement of the advance of the taxes, and the change of the place and manner of trial, impair the obligation of the contract on the part of the state to furnish an adequate and effcacious remedy to compel a tax-collector to receive the coupons in payment of taxes, in case he will not do it without compulsion.
1. As to the payment of the taxes in advance. In this connection it must be borne in mind that the legislation, the validity of which is involved, relates alone to the collection of taxes levied under the authority of the state for the purposes of revenue. Promptness in the payment of taxes by the citizen is as important as promptness by the state in the discharge of its own obligations. In fact, ordinarily, the last cannot be done without the first. Hence, under the revenue system of the United States, the collection of the revenue in the manner prescribed by law cannot be restrained by judicial proceedings. The only remedy for an illegal exaction is payment under protest and suit to recover back the money paid. The reason is that as it is necessary the government should be able to calculate with certainty on its revenues, it is better that the individual should be required to pay what is demanded under the forms of law, and sue to recover back what he pays, than that the government should be embarrassed in its operations by a stay of collection.
It is to be noticed, also, that the law which authorized the issue of the bonds and coupons did not in express terms provide that the coupon holder should have the remedy of mandamus to compel the tax-collector to take his coupons. His claim to relief in that way rests alone on the fact that when his coupon was issued mandamus was an existing form of action in the state, which the courts have decided was applicable to such a case. What the legislature has done is only to say that before this remedy can be resorted to the amount due for taxes shall be deposited in the treasury. That being done, the suit may go on. If in the suit it shall be determined that the coupons tendered are genuine, and in law receivable, the collector will be required to accept them, and the money will be restored. If, however, the judgment is against the coupon holder, the taxes will be paid, and the state will have suffered no inconvenience for want of its just revenues. Looking at the case, therefore, as one affecting the collection of the public revenue, we cannot see that the requirement of the advance of the taxes as a condition to the employment of the remedy is such an impairment of the contract as makes the requirement invalid.
2. As to the change in the place and mode of trial. We cannot think this of itself invalidates the law. So far as the change of place is concerned, it simply takes from the supreme court of appeals jurisdiction for the trial of the questions of fact, and confers precisely the same jurisdiction upon another court, with ample provision for appeal, so that in the end the authority of the court of appeals may be invoked on all matters of law. The courts on which the new jurisdiction is conferred are required by law to hold frequent terms, and the trial is to be had in the county where the taxes are to be paid. It is difficult to see how this impairs, in any manner, either the adequacy or the efficiency of the original remedy.
Then, as to the manner of the trial. The deposit of the coupons with the court of appeals, if the suit is to go on, cannot be considered unreasonable. If the trial had been conducted under the old law the coupons would have to be at some time surrendered, and the precise stage of the case in which this is to be done is by no means important, so far as the present question is concerned. Neither does the positive requirement of an issue as to the genuineness and receivability of the coupons and a trial by jury affect the validity of the law. Under the old law, this same issue might have been raised, and the same trial by jury required. It certainly is not an impairment of an old remedy to make that imperative which before was discretionary.
Without pursuing the subject further, we say that, in our opinion, the fourth section of the act of 1882 does not impair the obligation of any contract which the state has made with the holders of its interest coupons.
After this suit was begun, but before it was tried, the general assembly of Virginia amended the section of the Code conferring jurisdiction on the supreme court of appeals in suits for mandamus, so that in now reads as follows:
'Chapter 19. An act to amend and re-enact section 4, c. 156, of the Code of 1873, in relation to mandamus, prohibition, etc.
'(1) Be it enacted by the general assembly of Virginia, that chapter 156, § 4, of the Code of Virginia of 1873, be amended and re-enacted so as to read as follows:
'Sec. 4. The said supreme court, besides having jurisdiction of all such matters as are now pending therein, shall have jurisdiction to issue writs of mandamus and prohibition to the circuit and corporation courts, and to the hustings court and to the chancery court of the city of Richbnd, and in all other cases in which it may be necessary to prevent a failure of justice, in which a mandamus may issue according to the principles of the common law: provided, that no writ of mandamus, prohibition, or any other summary process whatever, shall issue in any case of the collection, or attempt to collect, revenue, or compel the collecting officers to receive anything in payment of taxes other than as provided in chapter 41, acts of assembly, approved January 26, 1882, or in any case arising out of the collection of revenue in which the applicant for the writ of process has any other remedy adequate for the protection and enforcement of his individual right, claim, and demand, if just.
'The practice and proceedings upon such writs shall be governed and regulated in all cases by the principles and practice now prevailing in respect to writs of mandamus and prohibition respectively.
'(2) This act shall be in force from its passage.' This, it is claimed, repealed section 4 of the act of January, 1882, and took away entirely the remedy by mandamus. Without deciding that question, we proceed to consider the remedy provided in sections 1, 2, and 3 of the act of 1882, which, it is conceded, will remain in force even if section 4 is repealed. These sections provide, in substance, that if coupons are tendered in payment of taxes, the collector shall take and receipt for them for the purposes of identification and verification. He shall then require payment of the taxes in money, and after marking the coupons with the initials of the name of the owner, deliver them to the judge of the county court of the count, or hustings court of the city, where the taxes are payable. The tax-payer may then file his petition in the county or hustings court against the commonwealth to have a jury impaneled to try whether the coupons 'are genuine, legal coupons, which are legally receivable for taxes, debts, and demands.' The cmmonwealth may be brought into court by service of a summons on the commonwealth's attorney. Upon this petition an issue and trial by jury is to be had, with ample privileges to all parties of exception and appeal. If the suit is finally decided in favor of the tax-payer, he is to have the amount paid by him for the taxes refunded out of the first money in the treasury, in preference to all other claims.
It is somewhat difficult to see any substantial difference between the remedy given by these sections and that by section 4. There the 'form' of the suit is mandamus, begun while the coupons are in the hands of the tax-payer. After the suit has been begun, the court requires a delivery of the coupons into its own possession and the payment of the amount of the taxes into the treasury. This being done, the court sends the coupons to the appropriate tribunal for adjudication, and the proceedings thereafter are in all material respects like those provided for in the other sections. The judgment is also the same, except as to the merest matters of form. In both proceedings, the object is to require the collector to accept the coupons as payment of the tax, and deliver back the money that has been deposited for the same purpose in case the coupons are not in law receivable. The petition for mandamus, filed in the court of appeals, under section 4, is the exact equivalent of the petition to be filed in the other courts, under sections 1, 2, and 3, to have the genuineness and the receivability of the coupons determined, and in both, the real matter submitted for determination is, whether the tax-payer is entitled to have back the money he has deposited to pay his taxes in case his coupons ought to have been received.
Mandamus, in this class of cases, is in the nature of a suit to obtain a specific performance of a contract. But in the present case the performance sought is the payment of money, and the remedy substituted is equivalent to a suit at law for its recovery, with ample provision for the satisfaction of any judgment that may be obtained; for it is made the ministerial duty of the treasurer to pay the amount of the recovery out of the first money in the treasury, and in preference to all other claims, as soon as the judgment is properly certified. The language of the act is, 'shall refund the money before then paid for his taxes by the tax-payer out of the first money in the treasury, in preference to all other claims.' Clearly this is an appropriation by law of money in the treasury, within the meaning of article 10, § 10, of the constitution of Virginia, and the treasurer would be authorized to make the payment without further legislative action. It will be time enough to consider the effect of a repeal of this branch of the remedy when that shall be attempted.
The primary obligation of the state is for the payment of the coupons. All else is simply as a means to that end. It matters not whether the coupons have been refused for the taxes, if full payment of the amount they call for is actually made in money. A remedy, therefore, which is ample for the enforcement of the payment of the money is ample for all the purposes of the contract. That, we think, is given by the act of 1882 in both forms of proceeding.
Some objection is made to the first, second, and third sections because there is no provision for the recovery of costs. Without determining whether in point of fact costs can be recovered, it is sufficient to say that costs, eo nomine, were not recoverable at common law, and are usually regulated by statute. Certainly, it would not be claimed that the change of an ordinary statute, which provided a remedy for the enforcement of contracts, so as to prevent the recovery of costs when they had been given before, would impair the obligation of contracts between individuals that were affected by what was done, and we see no reason why one rule, in this particular, should be applied to individuals and another to the state.
In conclusion, we repeat that the question presented by this record is not whether the tax-collector is bound in law to receive the coupon, notwithstanding legislation which, on its face, prohibits him from doing so, nor whether, if he refuses to take the coupon and proceeds with the collection of the tax by force, he can be made personally responsible in damages for what he does, but whether the obligation of the contract has been impaired by the changes which have been made in the remedies for its enforcement in case he refuses to accept the coupons. We dicide only the question which is actually before us. It is no doubt true that the commercial value of the bonds and coupons has been impaired by the hostile legislation of the state, but this impairement, in our opinion, comes, not from the change of remedies, but from the refusal to accept the coupons without suit. What we are called upon to consider in this case is, not the refusal to take the coupons, but the remedy after refusal.
We might have satisfied ourselves by a reference to the case of Tennessee v. Sneed, ubi supra, where the same general question was before us; but as we were asked to reconsider that case, we have done so with the same result, and, as we think, without in any manner departing from the long line of cases in which the principal involved has been recognized and applied.
Inasmuch as we are satisfied that a remedy is given by the act of 1882, substantially equivalent to that in force when the coupons were issued, we have not deemed it necessary to consider what would be the effect of a statute taking away all remedies. The judgment is affirmed.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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