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made to limit the power of taxation of a municipal body, upon the faith of which contracts have been made, and by means of which alone they could be performed. * However great the control of the legislature over the corporation while it is in existence, it must be exercised in subordination to the principle which secures the inviolability of contracts.”

This doctrine can have no application to claims against municipal corporations founded upon torts of the character mentioned. Whether or not the state, in so limiting the power of the city to raise funds by taxation that it cannot satisfy all claims against it recognized by law, though not resting upon contract, does a wrong to the relators, which a wise policy and a just sense of public honor should not sanction, is not a question upon which this court can pass. If the action of the state does not fall within any prohibition of the federal constitution, it lies beyond the reach of our authority.

The question of the effect of legislation upon the means of enforcing an ordinary judgment of damages for a tort, rendered against the person committing it, in favor of the person injured, may involve other considerations, and is not presented by the case before us. Judgment affirmed.

*291

BRADLEY, J. I concur in the judgment in this case on the special ground that remedies against municipal bodies, for damages caused by mobs, or other violators of law, unconnected with the municipal government, are purely matters of legislative policy, depending on positive law, which may at any time be repealed or modified, either before or after the damage has occurred, and the repeal of which causes the remedy to cease. In giving or withholding remedies of this kind, it is simply a question whether the public shall or shall not indemnify those who sustain losses from the unlawful acts or combinations of individuals; and whether it shall or shall not do so is a matter of legislative discretion; just as it is whether the public shall or shall not indemnify those who suffer losses at the hands of a public enemy, or from intestine commotions or rebellion; and, as the judgments in the present case were founded upon a law giving this kind of remedy, I agree with the court that any restraint of taxation which may affect the means of enforcing them is within the constitutional power of the legislature. Until the claim is reduced to possession, it is subject to legislative regulation. But an ordinary judgment of damages for a tort, rendered against the person committing it, in favor of the person injured, stands upon a very different footing. Such a judgment is founded upon an absolute right, and is as much an article of property as anything else that a party owns; and the legislature can no more violate it without due process of law than it can any other property. To abrogate the remedy for enforcing it, and to give no other adequate remedy in its stead, is to deprive the owner of his property within the meaning of the fourteenth amendment. The remedy for enforcing a judgment is the life of the judg.

ment, just as much as the remedy for enforcing a contract is the life of the contract. While the original constitution protected only contracts from being impaired by state laws, the fourteenth amendment protects every species of property alike, except such as in its nature and origin is subject to legislative control. Hence, I regard it important clearly to distinguish between this kind of judgment now under consideration and other judgments, for claims based upon the absolute right of the party,

* HARLAN, J., dissenting. By the constitution of Louisiana adopted in 1879, and which went into effect January 1, 1880, it is declared that “no parish or municipal tax for all purposes whatever shall exceed ten mills on the dollar of valuation." The judgments held by plaintiffs in error against the city of New Orleans were rendered and became final long before the adoption of that constitutional provision. At the time of their rendition, the law forbade execution against the defendant, but the city had the power, and was under a duty, which the courts could compel it to discharge, to include in its budget or annual estimate for contingent expenses a sum sufficient to pay these judgments. At that time, also, the rate of taxation prescribed by law was ample to enable the city to meet all such obligations. But if the limitation upon taxation imposed by the state constitution be applied to the judgments in question, then it is conceded the city cannot raise more money than will be required to meet the ordinary and necessary expenses of municipal administration. Consequently, under the limit of 10 mills on the dollar of valuation, the judgments of plaintiffs become as valueless as they would be had the state constitution in terms forbidden the city from paying them.

I am of opinion that the state constitution of 1879 cannot be applied to these judgments without bringing it into conflict with that provision of the national constitution which declares that no state shall deprive any person of property without due process of law. That these judgments are property within the meaning of the constitution cannot, it seems to me, be doubted. They are none the less property because the original cause of action did not arise out of contract in the literal meaning of that word, but rests upon a statute making municipal corporations liable for property destroyed by a mob. If a judgment giving damages for such a tort is not a contract within the meaning of the contract clause of the constitution, it is, nevertheless, property, of which the owner may not be deprived without due process of law. Its value as property depends in every legal sense upon the remedies which the law gives to enforce its collection. To withhold from the citizen who has a judgment for money the judicial means of enforcing its collection-or, what is, in effect, the same thing, to withdraw from the judgment debtor, a municipal corporation, the authority to levy taxes for its payment—is to destroy the value of the judgment as property.

In Pumpelly v. Green Bay Co. 13 Wall. 166, this court had occasion to consider the meaning of that provision in the constitutions of the several states which forbids private property from being taken for public purposes without just compensation therefor. Under the authority of statutes of Wisconsin certain dams were constructed across a public navigable stream of that state. The dams so constructed caused the waters to overflow the land of a citizen, resulting in the almost complete destruction of its value. The argument was there made that the land was not taken within the meaning of the consti. tution, and that the damage was only the consequential result of such use of a navigable stream as the government had a right to make for the purposes of navigation. But, touching that suggestion, this court said:

“ It would be a very curious and unsatisfactory result if, in construing a provision of constitutional law, always understood to have been adopted for protection and security to the rights of the individual as against the government, and which has received the commendation of jurists, statesmen, and commentators, as placing the just principles of the common law on that subject beyond the power of ordinary legislation to change or control them, it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public it can destroy its value entirely, can inHict irreparable and permanent injury to any extent, can, in effect, subject it to total destruction without making any compensation, because, in the narrowest sense of that word, it is not taken for the public use. Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen, as those rights stood at the common law, instead of the government, and make it an authority for invasion of private rights under the pretext of the public good, which had no warrant in the laws or practice of our ancestors."

These principles of constitutional construction have an important bearing upon the present case. If the property of the citizen ie "taken," within the meaning of the constitution, when its value is destroyed or permanently impaired through the act of the government, or by the act of others under the sanction or authority of the government, it would seem that the citizen, holding a judgment for money against a municipal corporation,—which judgment is capable of enforcement by judicial proceedings at the time of its rendition -is deprived of his property without due process of law, if the state, by a subsequent law, so reduces the rate of taxation as to make it impossible for the corporation to satisfy such judgment. Since the value of the judgment, as property, depends necessarily upon the remedies given for its enforcement, the withdrawal of all remedies for its enforcement, and compelling the owner to rely exclusively upon the generosity of the judgment debtor, is, I submit, to deprive the owner of his property.

But it is said that the plaintiffs are not deprived of their judg. ments, so long as they continue to be existing liabilities against the city. My answer is, that such liability upon the part of the city is of no consequence, unless, when payment is refused, it can be enforced by legal proceedings. A money judgment which cannot be collected is of as little value as Pumpelly's farm was, when covered by water to such an extent that it could not be used for any of the purposes for which land is desired.

It is also said by my brethren that plaintiffs are not deprived of their property in these judgments because at the time they are un. able to collect them. No state shall "deprive any person of life, liberty, or property without due process of law,” is the mandate of the constitution. Could a state law depriving a person of his liberty be sustained upon the ground that such deprivation was only for a time? Pumpelly's land was adjudged to have been taken within the meaning of the constitution, although it was possible that, at some future time, the dams constructed under the authority of the state might be abandoned, or might give way, causing the waters to retire within their original limits, and thereby enabling the owner to reoccupy his farm. It is barely possible that the people of Louisiana may, at some future period in their history, amend her constitution, so as to permit the city of New Orleans to levy taxes sufficient to meet its indebtedness, as established by the judicial tribunals of that state. But such a possibility cannot properly be recognized as an element in the legal inquiry whether the state may so reduce the rate of taxation, by one of its municipal corporations, as to deprive it altogether of the power to pay valid judgments against it, which, at the time of their rendition, and under the rate of taxation which then obtained, were collectible through judicial proceedings. It is further said that these judgments may also, “perhaps,” be used by the relators or their assignees as offsets to demands of the city. My answer is, that the city may never have such demands. The possibility that it may have, ought not to control the determination of this case, involving, I submit, a present deprivation of property without due process of law.

In this case, before the adoption of the constitution of 1879–80, before even the convention that framed it met, the plaintiffs had obtained, in the inferior state court, a final order, in a mandamus suit, requiring the city of New Orleans to include in its next budget or statement of liabilities (and in succeeding budgets, until they were paid) the amounts of existing judgments against it, including those held by plaintiffs, and to levy a tax to the extent of $1.75 on every $100 of valuation to meet them. This judgment, in the mandamus suit, was in accordance with the law of the state as it then was. Plaintiffs, by the application of the constitutional limitation upon municipal taxation, adopted after rendition of judgment in the mandamus suit, is thus deprived not only of the benefit of that judgment, but of all power to enforce the collection of the original judgments, in the only way they can be enforced, or be made of any value. If this be not a deprivation of property without due process of law, it is, I think, difficult to conceive of a case involving such a deprivation.

· For these reasons, I feel constrained to dissent from the judgment.

1

(109 U. S. 275)

MONONGAHELA Nat. BANK OF BROWNSVILLE, PA., 0. JACOBUS.

(November 19, 1883.)

WITNESS—COMPETENCY-ACTIONS BY OR AGAINST EXECUTORS.

Section 858 of the Revised Statutes of the United States, which provides that in

actions in the courts of the United States by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate, or ward, unless called by the opposite party or the court, is applicable only to cases in which the executor, administrator, or guardian is a party to the record.

In Error to the Circuit Court of the United States for the Western District of Pennsylvania.

D. T. Watson, for plaintiff in error.
Thos. C. Lazear and W. W. Douglass, for defendant in error.

HARLAN, J. The plaintiff in error having recovered a judgment for $9,056.12 against Alfred Patterson, in the circuit court of the United States for the western district of Pennsylvania, caused an execution attachment to be issued against the Fayette County Railroad Company and Samuel H. Jacobus, the defendant in error, attaching as the property of Patterson certain shares of the capital stock of that company which stood in the name of Jacobus. The attachment was duly served upon Patterson, Jacobus, and the rail. road company.

The controlling issue in the case is whether the stock was the property of Alfred Patterson and liable to be attached in satisfaction of the judgment against him. Jacobus claims that the stock became his property in virtue of an unrecorded assignment and transfer for a valuable consideration by Alfred Patterson prior to the rendition of that judgment; consequently, that it is not liable to the bank's attachment. In the progress of the litigation Patterson died, and his administrator was substituted of record as a party defendant. The contention on the part of the bank is that the assignment was by an insolvent debtor in trust for certain preferred creditors, and that it must have been recorded in order to protect the stock from the attachment of judgment creditors; that of Jacobus is that the assignment was made in consideration of his assumption of certain liabilities of the debtor, and without any intent upon the part of either himself or Patterson to hinder, delay, or defraud the creditors of the latter. At the trial, Jacobus, a witness in his own behalf, was allowed, over the objections of plaintiff, to testify as to what took place between him and Patterson at the time the stock in question was assigned by the latter to the former. The adminis. trator was also permitted, over the objection of the plaintiff, to prove -he being present on the occasion of the assignment—that the as. sumption by Jacobus of certain debts of Patterson's was in consider

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