David Josiah Brewer

“ Suppose, for illustration, a state legislature should pass an act exempting the property of a particular corporation from all taxation, and that a subsequent legislature should pass an act subjecting that corporation to the taxes imposed by the city in which its property was located, and that on the first presentation to the highest court of the state of the question of the validity of taxes levied under and by virtue of this last act that court should, in terms, hold these city taxes valid notwithstanding the general clause of exemption found in the prior statute. ”

“ It ignores the difference between the statute and the contract, and confuses the two entirely distinct matters of construction and validity. The statute precedes the contract. Its scope and meaning must be determined before any question will arise as to the validity of the contract which it authorizes. It is elementary law that every statute is to be read in the light of the constitution. However broad and general its language, it cannot be interpreted as extending beyond those matters which it was within the constitutional power of the legislature to reach. ”

“ And, if there were, as it seems there were, certain special taxes and dues, which, under the existing provisions of the state constitution, could not be affected by legislative action, the statute is to be read as though it in terms excluded them from its operation.
Indeed, the court of appeals does not follow what it calls the logic of the decision in McGahey v. Virginia to its necessary result. The scope of its argument is that, if a part of the consideration be illegal, the whole contract fails. ”

“ That the various acts of the assembly of Virginia passed for the purpose of restraining the use of said coupons for the payment of taxes and other dues to the state, and imposing impediments and obstructions to that use, and to the proceedings instituted for establishing their genuineness, do in many respects materially impair the obligation of that contract, and cannot be held to be valid or binding in so far as they have that effect. ”

“ In the case before us, after the act of 1871 and in 1872, the general assembly passed an act requiring that all taxes should be paid in 'gold or silver coin, United States treasury notes, or notes of the national banks of the United States'; and again, in 1882, a further statute commanding tax collectors to receive in payment of taxes 'gold, silver, United States treasury notes, national bank currency, and nothing else.' This command was reenacted in the Code of 1887. ”

“ Thus, at the end of its argument, it quotes as a principal authority the following:
'The concurrent doctrine of the text-books on the law of contracts is that, if one of two considerations of a promise be void merely, the other will support the promise; but that, if one of two considerations be unlawful, the promise is void. ”

“ These refunding bonds, amounting to many millions of dollars, have passed into the markets of the world, and have so passed accredited, not merely by the action of the general assembly of the state of Virginia, but by the repeated decisions of her highest court, as well as of this court, for substantially a quarter of a century, to the effect that such coupon provision was constitutional and binding. ”

“ Some of those judgments had been brought to this court, and by it the validity of the original act had been uniformly and repeatedly sustained, and the invalidity of subsequent and conflicting acts adjudged, and now, at the end of many years of litigation, with these subsequent statutes still standing on the statute books unrepealed by any legislative action, the state court, with only a casual reference to those later statutes, goes back to the original act, and, reversing its prior rulings, adjudges it void ”