State ex rel. Hahn v. Young

9 N.W. 737, 29 Minn. 474, 1881 Minn. LEXIS 9

• Court: Supreme Court of Minnesota
• Decided: September 9, 1881
• Status: Published

Opinion

Gileillan, C. J.

April 15, 1858, the people of Minnesota adopted an amendment to the constitution, providing for the loan to certain railroad companies of bonds of the state, to be denominated “Minnesota State Railroad Bonds,” to the amount of $5,000,000. They were to be payable to the order of the company to whom issued, transferable by the indorsement of the president of the company, and redeemable at any time after ten and before the expiration of twenty-five years from the date thereof, and were to bear interest at the rate of seven per cent, per annum. The faith and credit of the state were, in express terms, pledged for the payment of the interest and the redemption of the principal thereof. The amendment contained provisions for each company securing the state, and making provision for the punctual payment and redemption of the bonds, principal and interest, in such manner as to exonerate the treasury of the state from any advances of money for that purpose. These provisions for security operated only as between the state and the companies to whom the bonds were to be issued, and were not intended to affect the relations between the state and those who might become holders of the bonds by indorsement, as in the amendment provided. To those persons the promise of the state to pay was to be absolute, creating between the state and them the relation of debtor and creditors. This was so decided — and it was the principal point involved and decided— in Chamberlain v. St. Paul & Sioux City R. Co., 92 U. S. 299. A large amount of the bonds were issued pursuant to the amendment when, the companies having abandoned further performance of the conditions on which the bonds were to be issued, the further issue of bonds was suspended. It is assumed that some if not all of the bonds issued were passed by indorsement to third persons, so as to become operative as contracts of the'state to pay. For the purpose of this decision, it is assumed that such bonds were legally issued, for no question of their validity, nor of any equity of the state against them,, is made in the proceeding.

After the default of the companies to perform the conditions in the amendment imposed on them, and after it had become manifest that all intention to proceed with such performance was definitely aban dbned by the companies, the people of the state, on November 6, 3860, by a large vote, adopted two amendments to the constitution proposed to them by the legislature, one of them expunging from the constitution the amendment of April 15, 1858, “excepting and reserving to the state, nevertheless, all rights, remedies, and forfeitures accruing under said amendment.” The other amendment was in these words: “But no law levying a tax, or making other provisions for the payment of interest or principal of the bonds denominated ‘Minnesota State Railroad Bonds’ shall take effect or be in force until such law shall have been submitted to a vote of the people of the state, and (adopted by a majority of the electors of the state voting upon the same.” March 2, 1881, the legislature passed an act, the general purpose of which was to adjust, with the consent of the holders, the bonds outstanding, by taking them up and issuing in lieu of them new bonds of the state, for fifty per cent, of the amount which appeared by their terms to be due upon them. A notable feature of this act is that section 4 proposes the issue of the new bonds without submission to a vote of the people, and section 5 proposes it to be submitted to a vote of the people, the bonds to be issued only upon their approval; and it is left to the judges of the supreme court, or, in case they should decline to act, to an equal number of judges of the district court, to determine whether the legislature have power, without submitting it to the people, to make the contemplated adj ustment; the bonds to be issued pursuant to section 4, or the proposition to be submitted to the people pursuant to section 5, according as the judges should' determine the question submitted to them. The judges of the supreme court declined to act, and the governor called the respondents, judges of the district court, to act in their stead. The attorney general, on behalf of the state, now applies to this court for the writ of prohibition, to restrain the respondents from proceeding in the matter.

■ The writ of prohibition issues usually ,to courts, to keep them within the limits of their jurisdiction. But it may also issue to an officer, to prevent the unlawful exercise of judicial or quasi judicial power ; and, the other reasons for it existing, we see none why it should not issue to a person, or body of persons,- not being in law a court, nor strictly officers; as, if the legislature should assume in an unconstitutional manner to create a court of justice, and the person or persons appointed as its judge or judges should enter upon the exercise of the judicial functions thus attempted to be conferred, the same reasons might exist for arresting their action as exist in the case of a court exceeding its jurisdiction. The exercise of unauthorized judicial or quasi judicial power is regarded as a contempt of the sovereign, which may result in injury to the state or citizens. Three things are essential to justify the writ: First, that the court, officer, or person is about to exercise judicial or quasi judicial power; second, that the exercise of such power by such court, officer, or person is unauthorized by law; third, that it will result in injury for which there is no other adequate remedy.

The act of March 2, 1881, does not attempt to confer on the respondents judicial power in the strict sense of the term. • It submits to their decision a judicial question, and, although their decision upon it could-not have the authoritative and binding force of a decision by a court of justice, yet the act provides for carrying it into effect as though it -were binding, thus giving it a quasi judicial operation. That injury to the state and to the citizens will result, is apparent from the fact that such result will be the issue of invalid obligations of the state to the amount of millions of dollars, and, except this writ, there is no judicial remedy for the threatened evil. If the act is void, and so confers no authority on the respondents, the writ must issue.

Before proceeding to a consideration of the main questions involved in the ease, we take pleasure in acknowledging the signal assistance which the arguments of the counsel on both sides have rendered to the court. The discussion took a very wide range, and occupied an unusual time, though not more than was profitably employed, and disclosed the most thorough and minute research and investigation. It has rarely been the good fortune of any court to have a cause before it so ably and exhaustively presented by counsel as this has been.

The basis of the application is the proposition that the act of March 2, 1881, is unconstitutional and void. It is claimed to be unconstitutional for various reasons, only two of which, on account of their superior importance, we think it necessary to consider. We state them in the order of their importance. They are — First, be-cause it is contrary to the amendment to the constitution of November 6, 1860, to the effect that no law levying a tax, or making other provision for payment of the bonds, shall take effect till approved by a vote of the electors of the state; second, because it is an attempt to delegate to the judges legislative power inasmuch as it leaves it for them to determine whether section 4 or section 5 of the act shall be law.

In answer to the first of these positions, the respondents urge that the amendment of 1860, referred to, is itself void, because repugnant to the constitution of the United States. A more important and difficult question has rarely, if ever, come before a court in this country. Courts always regard it a matter of great delicacy to pass on the validity of an act of the legislature. It is much more so when the validity of a constitution adopted by the people of a state is called in question. Yet, when a law of a state is alleged to be contrary to some clause in the constitution of the United States, it is immaterial whether it wras passed by the legislature, or by the people in framing a constitution for themselves. The constitution of the United States is in some particulars a limitation or restraint upon the sovereign power of a state, and operates equally upon an attempt to exercise the prohibited power, whether by the legislature or the people. In both cases the attempt at exercising it stands upon the same footing, and must be judged upon the same principles.

One of the limitations imposed by the federal constitution is upon the power which it is assumed a state would otherwise have to legislate with respect to contracts. This it does by the clause which declares that no state shall pass any law impairing the obligation of contracts. It may be doubted that any other, single provision of that constitution has had so beneficial and conservative an operation as this inhibition against improvident and unjust legislation, which might affect the life of business throughout the country. By it the great principle was established that contracts shall be inviolable. Sturges v. Crowninshield, 4 Wheat. 122. Probably no provision of the constitution has been more frequently before the courts, or more thoroughly and learnedly discussed, than this. There seems to have been doubt suggested at an early day that the clause applied to contracts made by a state. The question was first raised in the supreme court of the United States, in 1810, in the case of Fletcher v. Peck, 6 Cranch, 87. That was the case of a contract of a state — an executed contract —a grant of lands. The court held that the contract of a state is within the inhibition of the constitution, and said, (page 137:) “Since the constitution uses the general term ‘contract,’ without distinguishing between those which are executory and those which are executed, it must be construed to comprehend the latter as well as the former. ” In Green v. Biddle, 8 Wheat. 1, came in question the validity of two acts of the legislature of Kentucky, which were claimed to impair the obligation of a compact between that state and the state of Virginia. The objection that a contract made by a state is not protected by the constitution against legislation by the state seems to have been made, though, as the court said, it was not much pressed. Referring to the decision in Fletcher v. Peck, the court, (page 92,) said: “The principles laid down in that ease are that the constitution of the United States embraces all contracts, executed or executory, whether between individuals or between a state and individuals; and that a state has no more power to impair an obligation into which she herself has entered, than she can the contracts of individuals.” The two acts of the legislature were accordingly adjudged repugnant to the constitution and void, because they impaired the obligation of the contract between the two states. The eases are important, as the judges who decided them, and defined the extent of the principles included in the decisions, were contemporaries with the constitution, or so nearly so that they knew well the evils in the past which the clause in question was intended to prevent for the future, and that repudiation by states of their own contracts was among such evils. Although there have been since those decisions very many cases in that court where the validity of state legislation, claimed to impair the obligation of state contracts, came in question, the court has never departed from nor limited the application of the principles laid down and applied in those two cases. Nor are we aware of any intimation by any judge of that court that contracts of a state, either executed or executory, are not, as fully as any other contracts, embraced within the constitution. As lately as the case of Meriwether v. Garrett, 102 U. S. 472, decided in 1880, the court said, (p. 520:) “The federal judiciary has never failed, so far as was in its power, to compel the performance of all lawful contracts, whether of the individual, or of the'municipality, or of the state. It has unhesitatingly brushed aside all legislation of the state impairing their obligation.”

The relator does not deny that there-may be a contract of a state, the obligation of which the state cannot impair. He admits this as to contracts which are executed, — ras, for instance, grants, — and also admits it as to an executory contract, to enforce which against the state the other party has a perfect judicial remedy. But he claims that executory contracts of a state, which the state cannot be compelled by judicial means to perform, (and this includes all those, the performance of which rests with the legislature, or with some state officer over whom the judiciary has no control in the matter,) have no obligation, within the meaning of the constitution of the United States, and are, therefore, not embraced in its prohibition. His propositions are, in brief, these: First. It is legal obligations, and not merely moral obligations, which the constitution aims to protect. Second. The legal obligation of a contract consists in the right to judicially enforce it. Where that right is wanting, there is no legal obligation. Third. Consequently, executory contracts of a state, which cannot be judicially enforced — and such are these bonds — are not within the constitutional protection.

If it be true that there is no legal obligation to a contract where there is no judicial remedy to compel the defaulting party to perform it, — that is, if the legal obligation and a perfect judicial remedy directly against the party to enforce the contract be synonymous,— then most executory contracts of a state are at the mercy of the state that made them, the bonds here in question are in that predicament, and subject to any legislation the state of Minnesota might choose to make with regard to them. The proposition, if conceded and followed to its necessary logical consequences, will lead to results somewhat startling. State executory contracts to pay, like similar private contracts, are not protected by the federal constitution, except as to the legal obligation. If there be no legal obligation to them, the state that made them may at its pleasure annul them, and there can be no reason why one state cannot annul the executory contracts of another, ■or so legislate as to destroy any market value which they might otherwise have within its jurisdiction. Indeed, they are not in a legal sense contracts (,at all, have no value as such which the law will recognize, are not to be regarded as property, and all the hundreds of millions of federal and state bonds which are regarded as property by the financial world, are in law merely pieces of worthless paper.

What constitutes the legal-obligation of a contract has been much discussed by courts and text-writers almost ever since the adoption of the federal constitution. Some have insisted that it is the judicial remedy given to enforce the contract; that" the legal obligation consists of and is precisely co-extensive with such remedy, and that those agreements from which a judicial remedy is withheld, have merely moral, or, as they are sometimes termed, imperfect obligations. Others have insisted that the legal obligation of the contract is entirely distinct from the remedy to enforce it, and may exist without it. The latter seems to be the opinion recognized in the supreme court of the United States. The acts of state legislatures claimed to impair the obligation of contracts, that have come before that court, have generally been acts relating to remedies, and some judges of the court, in endeavoring to show the importance of the remedy to the obligation of the contract, and that the remedy cannot be taken away without impairing the obligation, have employed expressions which, severed from the connection ih which they were used, may be understood as indicating that without a judicial remedy there can be no legal obligation. Such expressions are quoted and urgently pressed on this court by the relator. As applied to the vast majority of contracts, such expressions are correct, for, as a general rule, wherever the law recognizes an obligation, it gives a judicial remedy to enforce it. But there are exceptions, as, generally, in the case of state contracts, where, without ignoring the obligation, and without regard to the validity or nature of the contracts themselves, the law, from motives of public policy, exempts the party from direct judicial action to enforce them. When read with their context and in view of the subject-matter then in hand, the expressions referred to cannot be understood as denying the obligation of these latter contracts. They must be understood as referring to those agreements or obligations — such as nude pacts, or obligations to exercise gratitude, benevolence, and the like — of which the civil law takes no account, and not to those contracts which courts will recognize, whenever they have an opportunity, by the presence before them of parties claiming rights or exemption under such contracts. But since the great cases of Sturges v. Crowninshield, 4 Wheat. 122, and Ogden v. Saunders, 12 Wheat. 213, the accepted doctrine of that court has been that the legal obligation and the remedy are distinct. Referring to this matter, the supreme court, in Von Hoffman v. City of Quincy, 4 Wall. 535, said, (p. 554:) “If these doctrines were res integres, the consistency and soundness of the reasoning which maintains a distinction between the contract and the remedy — or, to speak more accurately, between the remedy and the other parts of the contract — might, perhaps, well be doubted. But they rest in this court upon a foundation of authority too firm to be shaken; and they are supported by such an array of judicial names that it is hard for the mind not to feel constrained to believe they are correct.”

••That 'the legal obligation of contracts, and judicial remedy or means provided, by law to enforce them through action of the courts, are distinct, appears most in accordance with reason. It is unreasonable that the obligation of a contract is something shifting, and not permanent; that in the same contract it may exist at one time and be absent at another; that at different times the same contract may have and not have a legal obligation; that it may not have such obligation when made, but may, from accident or change of circumstances not connected with it, subsequently acquire it; that it may have it when made, but subsequently lose it. Certainly, the legal obligation, in whatever metaphysical reasoners may place it, must belong to the contract so long as it continues, from the time it is made till it is performed, and even, as decided in Fletcher v. Peck, after it is performed, though then the remedy to enforce its performance has ceased. But there is not always a remedy, certainly not always a judicial remedy, for contracts acknowledged to be valid. A contract between independent nations has a binding force and obligation which is universally acknowledged, and which has never been doubted among civilized nations; yet there never can be a judicial remedy in behalf of one nation against another. The only remedy in that case is in the right of war.

So in the case, put by way of illustration in Ogden v. Saunders, of two men thrown together upon a desert, uninhabited island, and making a contract for exchange of commodities. It is difficult to suppose any one could deny that the duty and obligation of each to do what he had stipulated to do, and the right to demand what the other had stipulated to perform, would be as'complete as though they had made the contract in a country governed by law; yet, so long as they remained on the island, the only remedy either would have to compel performance by the other would be a resort to force. If, however, before the contract was performed, they should both remove to a country governed by law, there would then spring up the judicial remedy provided by the laws of that country upon contracts of that kind.

The cases of Rees v. City of Watertown, 19 Wall. 107, and Meriwether v. Garrett, 102 U. S. 472, present instances where judicial remedies once existed, but ceased before tlie contracts were performed. For the court, though recognizing the legal obligation of the contracts, was forced to acknowledge utter inability to afford any remedy. Had the cause from which the remedies in those cases ceased to exist been subsequently removed, they would have presented instances of contracts as to which there at first were judicial remedies, then for a time no remedies, then again the remedies restored. Upon a contract creating a debt payable in money, if the debtor have no property out of which the debt can be made, there is practically no judicial remedy. In case of the death of a debtor, there is no such remedy till the appointment of an administrator or. executor.

Mr. Story, in his work on the constitution, gives, as instances of legal obligations existing where there is no judicial remedy to enforce them, the case of a contract by a state, which does not permit its citizens to sue it, with one of its citizens, and of a contract between the United States and one of its citizens, as to which he says no one would doubt their legal obligation. And here we may say that, although there have been before the supreme court of the United States very many cases in which contracts by a state came more or less in question, and in some of which, especially in Railroad Co. v. Tennessee, 101 U. S. 337, and Railroad Co. v. Alabama, Id. 832, it was held there was no judicial remedy to enforce the performance of the contracts, there is no case to which our attention has been called where it was even suggested that a contract of a state has not, within the meaning of the federal constitution, the same legal obligation as a similar contract of an individual. In one of the latest cases before it, it said: “States and cities, when they borrow money and contract to repay it with interest, are not acting as sovereignties. They come down to the level of ordinary individuals. Their contracts have the same meaning as that of similar teontracts between private persons.” Murray v. Charleston, 96 U. S. 432, 445. A citizen may, upon one of its contracts, sue the United States in the court of claims; a state may sue another state for a debt in the supreme court of the United States; some of the states permit suits to be brought by citizens upon claims against them, in their own courts; and in all these cases the courts may proceed to decision and judgment; but the courts cannot, in sucli cases — ordinarily, at any rate — enforce a judgment for money, for they have no power to coerce congress or the legislature of the debtor state to proceed by appropriation and levy of taxes to provide money for payment of the judgment. There is, therefore, in such cases, notwithstanding the right to sue, no judicial remedy,' for, as decided in Railroad Co. v. Tennessee and Railroad Co. v. Alabama, a judicial proceeding which stops short of enforcement is not a judicial remedy. But can any one imagine that in any of the cases mentioned the court would decline to render judgment for the debt, on the ground that there was no perfect judicial remedy to enforce it ? Yet why should it not in all those cases render judgment for the United States or the state, if it be true that there is no legal obligation where there is no judicial remedy to compel performance of the contract. A court tries and determines no questions but those of legal rights; it has nothing to do with mere moral or imperfect obligations, the binding force of which the civil law does not take into account. A court of law does not create a legal obligation; it only declares and adjudges what the legal obligation of the contract sued on is; that is, what are the legal rights and duties of the parties under their contract. To appoint courts" to try and determine, according to rules of law, cases of contracts on which there can be no legal obligation, would be a grave absurdity. In Fletcher v. Peck, 6 Cranch, 87, Chief Justice Marshall, discussing the question whether a contract made by a state is protected by the federal constitution, supposes the case of a suit brought against a state on its contract, and says, (p. 139:) “Would it have been a defence in such a suit to say that the state had passed a law absolving itself from the contract ? It is- scarcely to be conceived that such a defence should be set up.”

Originally a citizen of one state could sue another state in the supreme court of the United States. This -was decided in an action on a contract, the case being Chisholm v. Georgia, 2 Dallas, 419. If that right to sue had secured a judicial remedy, then, if the proposition of the relator be true, this singular result must follow: that if a state made a contract with one of its citizens it would have no legal obligation, and would not be protected by the federal constitution, because-oí the want of a judicial remedy upon it; but when the citizen should become a citizen of another state, a judicial remedy would spring up and a legal obligation attach to the contract, and adhere to it, unless he should return to his original state. The proposition that the legal obligation to do a thing which the party has agreed to do does not exist where he cannot be compelled to do it by a judicial proceeding, makes the obligation to do it depend on the right and power of the court to compel him; whereas, the right and power of the court to compel the act logically depend on a pre-existing obligation of the party to do it. The conclusion at which we arrive as to the legal obligation of a contract 'is that it consists in the right on the one side and corresponding duty on the other, that, according to the'law in force at the time, are created by the stipulations of the parties; that it arises as soon as the contract is made, and continues until it is fully performed, and may even continue afterwards, and may exist although there be no judicial remedy upon it; that the the remedy, though not essential to the obligation, gives it value, so that to take away the remedy or seriously lessen it will impair the obligation. Mr. Story, in his work on the constitution, section 1385, says: “The obligation to perform a contract is coeval with the undertaking to perform it. It originates with the contract itself, and operates anterior to the time of performance. The remedy operates upon the broken contract, and enforces a preexisting obligation,” And, section 1381: “There may exist a perfect obligation in contracts where there is no known and adequate means to enforce them.” . ,

Thus far we have assumed a judicial remedy upon a contract to imply only a direct judicial proceeding against the party to compel him to perform its stipulations. But the term in its largest sense comprehends something more than this. It comprises, also, judicial protection against invasion by others of the rights vested by the contract. If the rights so vested are such as the law will, in case of such invasion, recognize and jirotect, then there is a judicial remedy belonging to the contract. In the ease of executory contracts with the state, the state might assail the rights of the other party to the contract, either by a suit in disregard of its contract, or in some other mode. As an illustration of an assault by the state, through suit, upon, the rights of the other party, and an opportunity and judicial means afforded to vindicate his rights which no immunity on the part of the state could prevent, we will suppose a case that might have arisen with respect to these bonds. Suppose that, disregarding the amendment of 1860, the legislature had appropriated money to pay the bonds, and it had accordingly been paid to the holders of them, and that thereupon the state > had brought suit against such holders to recover the money as wrongfully paid and received; their rights under the contract would then have been directly before the court for adjudication and enforcement or protection against the claim made by the state.

To show how the party contracting with the state might have judicial protection against an attempt by the state through other means than a suit to invade or disregard his rights, suppose the case of a contract by the state to convey land. This state has many such-contracts outstanding. Suppose the state should assume to annul one of these contraetsvand afterwards convey the land to some other person having notice of the first contract. There would be a very complete and effectual judicial remedy in such case for the first purchaser. Many instances like this are to be found in the books. Others than the state might violate the rights acquired under an executory contract with the state. As in case of these bonds, a wrong-doer might convert one of them. In that event, would not the contract of which the bond was the evidence be the reason or occasion for a perfect judicial remedy against the wrong-doer? Would not such contract, rather than the paper on which it was printed, be the chief consideration fixing the damages to be recovered? The bonds are contracts, the obligation of which cannot be impaired by state legislation.

The objection made to the amendment of 1860 is that it impairs the obligation of these contracts; and it is claimed that the power and duty of the legislature to provide by levy of taxes, or by the appropriation of other funds, vested in and imposed on the legislature when the bonds were issued, was the remedy upon them, and the amendment impairs their obligation by destroying the remedy; that the exercise of such power and duty by the legislature having been contemplated by the parties — the state on one side and those who received the bonds on the other — as the means, and only means, through which they could and would be paid, and as the bonds were received with the understanding that such means should be employed, it became a part of the contracts — as much as though expressly stipulated therein — that the legislature should have and exercise that power; and that the amendment annuls that condition of the contracts, and so impairs their obligation. The consideration of these propositions involves, as preliminary to them, these questions : Can the power and duty of appropriation, and levy of taxes to provide the funds needed for appropriation, be regarded in law as a remedy upon state obligations ? And can the state irrevocably bind itself by contract to employ its sovereign power of taxation?

It has been insisted on the part of the relator that the only legal remedy there can be to enforce a contract is the judicial remedy; that is, the enforcement of it through proceedings in a court of justice. That is the usual remedy, and the exceptions are so rare that, in speaking of the remedy, the judicial remedy is,usually intended. But there may be other remedies than judicial ones. One of the remedies by act of the party aggrieved, enumerated by Blackstone, book 2, c. 1, is that of distress for rent, which existed at the common law and was regulated by statute, by which the landlord might seize and sell the tenant’s property to enforce payment of the rent. Another non-judicial remedy is the right of a pledgee to sell the property pledged for payment of the debt for which it is pledged. Another is the power of sale contained in mortgages or trust deeds, wdiere they are permitted by the law of the state. This power of sale is not the principal contract. The principal contract in such case is the agreement creating the debt and the security. The power of sale is given only to enforce the debt against the property constituting the security. And, in general, we may say that any means in the hands of the party aggrieved, or of any other person, though not a court, for enforcing performance of a contract, — any mode of enforcing it agreed on by the parties, if recognized and permitted by the law, — is a legal remedy; and where the power of administering a remedy is lodged by law with any person or body, especially if the duty to administer it is also imposed, that constitutes a legal remedy. This would include the legislative power and duty to provide means to pay and to pay state or municipal debts. It is argued that this is inconsistent with the proper definition of a remedy, which implies compulsion on the defaulting party; that there can be no such thing as compulsion by a party upon himself; that when he acts in the matter the act is voluntary, and according to his own will and pleasure, and not from enforcement. The argument is sound when applied to an individual. But is it so when applied to the ease of the complex body, the state ? It is admitted that there are cases where there is a complete, direct judicial remedy against the state. The existence of it is admitted in all those cases where the power and duty to perform a contract on the part of the state rests with an officer of the state, and-the courts can, by mandamus or otherwise, compel him to perform it. From the many instances found in the books, of state courts enforcing judicial remedies, against the state upon its contracts, we will refer to two: In the case of McCauley v. Brooks, 16 Cal. 11, the state of California had entered into a contract with a private person which required the periodical payment of money by the state to such person. The legislature passed an act appropriating money in the state treasury to meet the demands of the contract, and directing the state comptroller to draw his warrants on the treasurer for the instalments as they should fall due. A subsequent act of the legislature forbade the comptroller to draw his warrants, except upon the approval of a board of examiners. Pursuant to this act, the comptroller refused to draw his warrants for the instalments, without the approval of that board. The contractor applied to the supreme court of the state for a mandamus to compel him to draw them, and the court granted the peremptory writ, thus enforcing against the state a complete judicial remedy. Though in form against the comptroller, it was in substance against the state; for it was the money of the state, and not of the comptroller, which it reached. The other case is St. Paul & Chicago Ry. Co. v. Brown, 24 Minn. 517. There the state of Minnesota had granted or contracted to -grant certain swamp lands to the railway company, and a subsequent act of the legislature had appropriated the same lands to certain state institutions, and for that purpose had vested the nominal title in trustees, the defendants in the suit. The legislature consented to a suit against them to test the validity of its appropriation of the lands, and the suit was brought. The court treated it as an action against the state, saying, (p. 574:) “The subject-matter of the action is property belonging to the state, and the action, though nominally against the trustees, is virtually against the state, to determine its right in the property involved.” It also held that the judgment might enforce itself by passing or confirming the title.

The proposition that when the legislature employs its authority to bring about performance of a state contract, it is the state itself which acts, and that the act is therefore voluntary and not remedial, may be stated with as much propriety of the state judiciary when it administers a judicial remedy against the state. For the judiciary is not superior to nor independent of the state. It is, as the legislature is, only a branch or department of the state government. It exercises, as does the legislature, only a part of the sovereign power of the state. It is 'true that the action of the legislature within its proper sphere is the action of the state. But it is equally true of the action of the judicial and executive departments, acting within their respective proper spheres. Though each exercises the sovereign power of the state belonging to its department, neither of them is the state, nor do they all together constitute it. They are the instru-mentalities appointed by the state to govern it — to employ its sovereign power, and control its actions. Nor do the people constitute the state, though it exists for their benefit, and is maintained by their means. A people without any political organization, without any government, is not a state. The people are only an element of the state. When, within prescribed territorial limits, they effect a political organization and establish a government, a state arises. The government is established to protect them frbm external wrong and internal disorder. In this organization and government what is called sovereign power rests. Under American organization it does not all reside in any one department, but is distributed among them, each wielding the portion vested in it, as well against the body of the people as against individuals. Each exercises within its proper sphere compulsive force. The acts of the legislature have as much binding force, not only on individuals, but on the entity called the state, — the people within the proper territorial limits as an organized political society, — as do the decisions or judgments of the courts.

Whether a court may exercise the pqwer entrusted to it against the state, and, if so, to what extent, depends on what the people, in distributing the governmental power by means of the organic law or constitution, deem expedient. To what extent the legislature has entrusted to it power and the duty of administering remedies in favor of state creditors depends also on the same thing. When the legislature, by law, directs the treasurer of the state to pay to its creditors money of the state in the treasury, how does that differ, so far as compelling the state is concerned, from the case of a court, if the public policy of the state permitted it, directing the same officer to pay the same money to the same creditor? Or, if the constitution placed it within the judicial power — and there is no reason, except of expediency, why it might not — to lay and distribute the burden of a state debt upon the taxable property within the state, how, so far as regards compulsion of the state, would the action of the courts in doing .it differ from that of the legislature in levying and distributing a tax upon the same property for the same debt ? In such eases the action of the legislature and the action of the judiciary would be equally compulsive, though in the one case it would be legislative, and in the other judicial, action. That where the legislature acts its commands are executed by one set of officers, and where the judiciary acts its commands are executed by another set, could make no difference so far as the power is to be deemed compulsive or not. The exercise of power to do is always compulsive; so, if judicial ac-. tion in favor of a creditor is a remedy because it is compulsive, legislative action for the same purpose is also, for the same reason, a remedy. It is true, the legislature is independent of the other departments, and there are no means to compel it to perform its duties and exercise its power. It is equally so with the judiciary. Each has its duty to perform. The duty is as imperative upon the one as upon the other. We see no reason, therefore, why the power and duty vested in and imposed on the legislature to provide for payment of a. state debt is not a remedy, or means of remedy, as much as the power and duty vested in and imposed on a court to enforce payment as between private persons. It may not be, and, as a fact, is not, equally valuable with a judicial remedy; but this is due rather to the difference in the composition of legislatures and courts, and in their modes of procedure, than to the difference in the powers entrusted to them.

It is sometimes difficult to say whether a law operates directly on the contract to change its terms, or upon the remedy to regulate or vary that. It is so here; for it may be a question whether it did not enter into and become a term or condition of the contract, as much as though expressed in the bonds, that the legislature of the state should provide and appropriate money for their payment; and, if there were no other funds available for the purpose, should provide them by the levy and collection of taxes. Of course a state can bind itself to pay money, and it must follow that it can bind itself to provide the funds by the means necessary for that purpose. It may irrevocably bind its taxing power. We are speaking now of the state, not of the legislature. The power of that department to bind the state in the matter of taxation will necessarily depend on the authority conferred on it by the constitution. Its authority in that regard need not be considered here; for, if the taxing power was bound at all in respect to these bonds, it was done by the state in the constitution. A state may, by contract, irrevocably bind itself not to exercise, or may irrevocably limit the exercise of, its power of taxation.

In the case of State of New Jersey v. Wilson, 7 Cranch, 164, the colony of New Jersey, in 1758, by contract, pursuant to an act of its legislature, conveyed certain lands to or for the use of the Delaware tribe of Indians. In the act authorizing the contract it was provided that the lands “shall not hereafter be subject to any tax, any law, usage, or custom to the contrary thereof, in anywise, notwithstanding.” In 1801, an act of the legislature of the state, without mentioning the subject of taxes, authorized the lands tobe sold, and they were accordingly conveyed to other persons. In 1804, the legislature passed an act repealing so much of the act of 1758 as exempted the lands from taxation. The supreme court of the United States construed the clause in the act of 1758 exempting the lands from taxation to be a contract, and held that the act of 1804 impaired its obligation, within the meaning of the federal constitution, and was, therefore, void.

In the case of the State Bank of Ohio v. Knoop, 16 How. 369, an act of the'legislature of Ohio, passed in 1845, under which the bank was incorporated, provided that any bank incorporated under it should pay to the state semi-annually six per cent, on the net profits of its business, “which sum or amount so set off shall be in lieu of all taxes to which the company, or the stockholders therein, would otherwise be subject.” In 1851, the legislature passed another act, providing that the capital stock of banks incorporated under the laws of the state should be taxed for the same purposes, and to the same extent, that personal property was or might be required to be taxed, in the place where such banks should be located. The effect of this was to increase the rate of tax upon this bank. It was urged in the supreme court of the United States, in support of the right to change the mode and rate of taxation, that the power to tax is a sovereign power, and that a state cannot barter away any part of its sovereign power. But the court held that the exempting of certain property from taxation is not'a relinquishment of a sovereign power, and said, (p. 384:) “The taxing power may select its objects of taxation, and this is generally regulated by the amount necessary to answer the purposes of the state. Now, the exemption of property from taxation is a question of policy and not of power,” and, (p. 390,) “the vague and undefined and indefinable notion that every exemption from taxation or a specific tax, which withdraws certain objects from the general tax law, affects the sovereignty of the state, is indefensible.” The court held a state may, by contract, bind itself in a particular case not to tax, or to do it in a particular way, and, upon the binding force of a contract by the state, quoted with approbation the language of the court in Dartmouth College v. Woodward, and of the supreme court of Ohio, in State v. Com. Bank of Cincinnati, 7 Ohio, 125, 129, that “a contract between the state and individuals is as obligatory as any other contract.” The court, therefore, held that the act of 1845 constituted a contract between the state and the banks, which organized under it, to tax them only in the manner and to the extent therein expressed, and that the state could not revoke it.

Dodge v. Woolsey, 18 How. 331, was of a' similar character, except that it presented a case where a constitution, adopted subsequently to the incorporation of the bank under the act of 1845, prescribed a rule of taxation upon such bank different from that agreed upon in that act. The doctrine of the case in 16 Howard was reaffirmed, and it was held that a constitutional provision was equally ineffectual with an' act of the legislature to affect prior contracts of the state. In McGee v. Mathis, 4 Wall. 143, the United States had granted, in 1850, to the state of- Arkansas, swamp and overflowed government lands, on condition that the lands, or the proceeds of them, should be applied in reclaiming the lands for cultivation by means of levees and drains. The state accepted the grant, and its legislature, in 1851, passed an act providing that the lands should be exempt from taxation for ten years, or until they should be reclaimed, and for the sale of them by the issue of transferable scrip, receivable for any of the lands not previously taken up, to be selected by the holder. After the issue of scrip pursuant to the act, another act was passed, in 1855, repealing the section in the act of 1851 which exempted the lands from taxation, and making provision for taxing those sold or to be sold, precisely as other lands; and also, in 1857, another act was passed authorizing a special tax upon the lands. It was held that the act of 1851 constituted a contract between the state and the holders of the scrip issued under it that the lauds should not be taxed for ten years, or until the lands should be reclaimed, and the state could not impair the contract by subsequent legislation, and the repeal of the exemption was void.

There are many other cases in the reports of the decisions of the supreme court of the United States involving the same question, and in all of them the rules laid down in the cases we have specifically referred to were followed. Although some of the judges have expressed doubts on the power of a legislature, by virtue merely of its general legislative authority, to make an irrevocable contract binding the state not to exercise, or limiting its exercise of, the taxing power, that the state can make such contract, and that wdien made it is irrevocable by act of the state alone, is the accepted doctrine of that court. We have confined our references mainly to the decisions of the supreme court of the United States on this point, and on others involved in the general question of the validity or invalidity of the constitutional amendment of 1860, because the decisions of state courts, while they may be valuable for the reasons given in support of them, are not of any authoritative or binding force upon this court. But the supreme court of the United States is the final arbiter of the question whether a state law is repugnant to the constitution of the United States, and on all such questions we are bound to follow its decisions.

The proposition that, a state may, by contract with an individual, obligate itself beyond its power of revocation to abstain from use of its taxing power, would seem to require the converse, that it may likewise so obligate itself to use that power. There is no ease that we are aware of where the question arose whether the state, as an entirety, in its organized capacity as a body politic, may be so bound. Those which come nearest to it are the cases of municipal corporations. These bodies are subdivisions or instrumentalities of the state government, established for the administration of the government in matters of local concern, and vested with a portion of the sovereignty of the state, to be exercised in such matters. In respect to these subdivisions of the state, where they have the power of taxation to meet the demands of contracts, they may, by entering into such contracts, not only bind themselves to exercise the power, but bind the state, so that it cannot withdraw the power till the contracts are satisfied.

In the case of Von Hoffman v. City of Quincy, 4 Wall. 535, the legislature of Illinois authorized the city of Quincy to issue its bonds, bearing interest, and to levy and collect a special annual tax upon the property within the city sufficient to pay the annual interest upon the bonds which should be issued. The tax was to be applied to payment of the interest, and to no other purpose whatsoever. The bonds were issued, and subsequently, in 1863, the legislature passed an act wdiich repealed all former laws touching the levy or collection of taxes on property within the city, except those regulating the collection and as to taxes relating to streets and alleys, and which prescribed the purposes for wbicb taxes might be levied, and limited tlie amount for each purpose. The rate authorized to be levied to pay the debts and meet the general expenses of the city was so low that the amount which could be realized would not be sufficient to pay the debts and current expenses of the city, and so the interest on the bonds could not be paid. The court held the repealing act of the legislature void as to the bonds, as impairing the obligation of the contract, and said (p. 554:) “It is well settled that a state may disable itself' by contract from exercising its taxing power in particular cases. It is equally clear that where a state has authorized a municipal corporation to contract and to exercise the power of local taxation to the extent necessary to meet its engagements, the power then given cannot be withdrawn until the contract is satisfied. The state and the corporation are in such cases equally bound. The power -given becomes a trust which the donor cannot annul, and which the donee is bound to execute; and neither the state nor the corporation can any more impair the obligation of the contract in this way than in any other. The laws requiring taxes to the requisite amount to be collected, in force when the bonds were issued, are still in force for all the purposes of this case. The act of 1863 is, so far as it affects these bonds, a nullity. It is the duty of the city to impose and collect the taxes in all respects as if that act had not been passed.”

In City of Galena v. Amy, 5 Wall. 705, the same principle was recognized.

In United States v. New Orleans, lately decided, an abstract of the decision being given in 13 Chi. Leg. News, 207,* it was held that an act of the legislature limiting the power of a city to levy a tax, which it had -at the time when it issued its bonds, without providing other adequate means to pay the bonds, impairs the obligation of the contract and is void.

The principle was recognized in United States v. County Court, in the United States circuit court for the eastern district of Missouri, 2 Fed. Rep. 1. The court said: “A legislative act which assumes to repeal any tax law in force when relator’s bond was issued, and under which lie was entitled to enforce payment, is, as to him, unconstitutional and void.” In State v. Common Council of City of Madison, 15 Wis. 30, it was lield that a prohibition to levy a tax' to pay a city debt-'was a destruction of the remedy, and the legislature had no power to do it. It would seem as though,, if the state can confer on these subdivisions authority to bind its sovereign power of taxation, so far as they are concerned, it may itself bind that power so far as concerns the whole state.

There is, of course, always a difficulty in comprehending the idea of any one, state, municipality, or individual, being bound, where . there is no external power to maintain and enforce the obligation. In the case of municipalities and of individuals, it is easy to concede that they are bound, because the judicial power extends to them; and it is so of a state obligation, whenever it comes before a court to maintain it. But of those state obligations which can be carried out only by legislation, which can rarely be brought within the reach of judicial power, and never directly for the purpose of compelling their performance, it is more difficult to conceive a power external to the state which may enforce them. The difficulty, more apparent than real, arises from confounding the state with one of the departments of its government, the legislative, which department the state has appointed to enforce state obligations in certain cases. As soon as it is understood that the legislature is not the state any more than the judiciary is, and that, like the judiciary, there is entrusted to it the power, in cases coming within its proper sphere, of enforcing state obligations, the difficulty of accepting the idea that there is a binding force to such obligations ceases. Whenever any undertaking of the state — as, for instance, the undertaking to use the taxing power —comes in question before a court, it is the province and duty of the court to recognize it, and, so far as required by the case before it, to maintain its integrity. But it is ordinarily the province and duty of the legislative department to directly enforce the obligation in the first instance, and of the courts to sustain its action, when its validity comes in question in a case properly before them. As, in the case before us, if there was a binding obligation of the state to use the power of appropriation and taxation, and if the amendment of 1860 impairs that obligation, then it was still the duty of the legislature, to whom the power is entrusted, to employ it; and whenever, in ease it should employ it, the legality of its action should, as it might do, come before the judiciary, it would be the province and duty of the latter department to sustain and confirm the action of the former.

Having reached the conclusion that there rests on the state a legal obligation to perform its contracts; that, where the power and duty to bring about performance of them are in the legislative department, there is a legislative remedy, the destruction of which may impair the obligation of the contract, as the taking away a remedy within the power of the judiciary may; and that the state may, by contract, disable itself to abolish or fetter the pow'er of legislative appropriation and taxation, where they constitute the means to perform its contracts, it remains to be considered: Did the state, by its contract with the bondholders, bind itself to leave the power in the ordinary legislative body? and did the amendment of 1860 lessen the value of the creditors’ remedy, when it removed the pow'er of providing for payment of the bonds from the ordinary legislative department, and remitted it to the electors at large? And here we may refer to a suggestion which has been made, that the undertaking of the state was general to pay the money, and was not a promise to employ any particular means for payment, — for instance, taxation, — and that legislation affecting only particular means of payment, or a particular mode of payment, does not impair the integrity of the general promise to pay. The amendment takes from the legislature the power to employ any means of payment, by taxation or otherwise. Even though the treasury might have in it millions of unappropriated and unneeded funds, it could not, according to the amendment, pay a cent of such funds upon this debt. The proposition would be absurd that a legislative act leaves a contract to pay money unaffected, if it do not prohibit the debtor to pay, but only disables him to employ the only means through which he can pay. The debtor’s promise to pay is usually general; it is rarely a promise to pay only from a particular fund, as from his personal property, or from his real estate. But could any one say that a law which should put it out of his pow'er to appropriate his personal property, or his real estate, to pay a general debt, would leave bis contract to pay unimpaired ? By contracting this debt, the state put itself under an obligation to resort to taxation-to pay it; certainly, if it provided no other funds with which to pay. The obligation to pay implies an obligation to employ the means necessary for payment. The observation of the supreme court of the United States in Loan Association v. Topeka, 20 Wall. 655, 660, though in that case applied to a municipal corporation, is equally applicable to the state, “thát all contracts creating debts to be paid in the future, not limited to payment from some other source, imply an obligation to pay by taxation.”

At the time the bonds here in question were issued, the constitution of the state — the same instrument pursuant to which they were issued — provided, (section 2, art. 9:) “The legislature shall provide for an annual tax sufficient to defray the estimated expenses of the state for each year; and whenever it shall happen that such ordinary expenses of the state for any year shall exceed the income of the state for such year, the legislature shall, provide-for levying a tax for the ensuing year, sufficient, with other sources of income, to pay the deficiency of the preceding year, together with- the estimated expenses of such ensuing year.” We do not regard it as of special importance, as relates to the question now before ns, that this power and duty of the legislature are expressed in the constitution; for, had they not been expi’essed, they would, in the absence of words excluding the implication, have been implied. But the section was there when the bonds were issued; and, in respect to the power and duty on the part of the legislature thus expressed, counsel for the respondents argue that among the expenses which the legislature was thus directed to provide for, was the annually-accruing interest, and ultimately the principal, of these bonds; but, as the state had no other reliable source of income except through taxation, the parties — the state and the receivers of the bonds — must have looked to and intended taxation as directed by the constitution, to wit, through the legislature, as the means through which the interest and principal of the bonds •were to be paid; that is, that it amounted to a contract that the legislature should provide by taxation to pay the bonds, and that such contract is as unimpairable by the state as the contracts, in the cases we have cited, that the municipalities should provide by taxation for payment of the debts incurred by them. Or, if that is not the case, then that taxation by the legislature was at that time provided in the constitution as the remedy, or as the principal and only reliable remedy, for creditors of the state, including holders of these bonds. We endeavor to state, though not in their language, the substance of their propositions. At the time the bonds were issued, the power to tax was in the legislature. Had it remained in that body, there can be no question of its duty to tax, unless there were other means to punctually pay the obligations of the state.

Was it a contract that this power and duty should remain in the legislature ? The decision of this question involves the same consideration as is involved in the question, whether, treating the power and duty then in the legislature as a then-existing remedy for the bondholders, taking it away or changing it, as provided in the amendment of 1860, lessens the value of the obligation to pay the sums.stipulated in the bonds. For, no agreement to leave with the legislature the power and duty to provide for payment of the bonds being expressed, it would not be implied, unless essential to the better fulfillment of the contract on the part of the state. It would not be implied, if it might be regarded as indifferent to the bondholders whether the power and duty remained in the ordinary legislative department of the state, or was vested elsewhere; and, regarding it only as a remedy, there would be no legal objection to the state taking it away, providing it substituted an equally effectual one in its stead; for it is the substance and effectiveness, and not the mere forms of remedies, which must be preserved.

Though the obligation of the contract is distinct from the remedy to enforce it, and the two ought not to be confounded, yet they are so nearly connected that a law lessening the force of the remedy must necessarily affect the value of the obligation. The inhibition of the federal constitution being absolute, it operates to prevent any attempt, either direct, against the contract, or indirect, against the remedy, to impair the obligation of contracts. A law affecting the remedy, if it lessen the value of the obligation, is equally void with one which does so by operating directly on the contract. “One of the tests that a contract has been impaired is that its value has, by legislation,- been diminished. This .is not a question of degree, or manner, or cause, but of encroaching in any respect on its obligation.” Planters’ Bank v. Sharp, 6 How. 301, 327. So that, in considering each proposition on behalf of the respondents, we are brought directly to consider the natural effect, as to these contracts, of the amendment, in removing the power and duty from the legislature, and remitting it to the electors at large in the state, to be exercised at a popular election.

If the natural effect of so removing the power and duty from the legislature would be to render the payment of the bonds less certain than if the legislature should retain the power to provide for such payment, then it may safely be implied that such removal would be contrary to the then intentions of the parties, the state and the receivers of the bonds; and it is also clear that it impaired the obligation of the contracts by baking away a then-existing remedy, without giving an equally efficient one instead. • We are relieved in this case from any necessity to consider how far a state may go, and to what extent remedies may be rendered less speedy or convenient, when, upon considerations of public policy and expediency, and consulting the general public good, it changes its laws or its constitution, or mode of administering its government. - The power to .make such changes from such motives, even though they incidentally affect existing contracts of the state or individuals, may b'e conceded. But any supposed advantage to the state of repudiating its debts, or of obstructing its creditors in respect to their payment, can never be admitted as a consideration of public policy or expediency, or of good to the public, which will justify a change. If it might, it would apply equally to all state contracts, executory or executed, and indeed to all contracts between individuals, and the clause in the federal constitution could thus be successfully evaded. It is apparent, upon the face of this amendment, that the only motive operating in its adoption was the intent to affect these bonds. If the effect of the amendment was to prevent or postpone or obstruct their payment, that, and no consideration of general public policy, was the motive of its adoption. It must, therefore, stand or fall, according as it affects injuriously or not the contracts mentioned in it. And it can get no aid from any right of a state to change its laws or the mode of administering its government. That it was intended as a check upon the payment of the bonds — not merely as a restraint upon payment before they should fall due, but upon payment at all — cannot be questioned. Else, why disable the ordinary legislative department to provide in any way for their payment, while full legislative authority was left to it with respect to every other obligation of the state ? All legislative power over the matter of their payment was stripped from the legislature. The mere power to propose for the electors to adopt or reject a law providing for their payment is not legislative. It might be as well entrusted to the executive. That it had the effect intended, to check and obstruct payment, has passed into the history of the state. That such was its natural, indeed its inevitable, result, we think no one could deny. It was because such would be the natural effect of it that it was adopted.

The idea of remedy in the hands of any one but the aggrieved party implies the right to make application to the body or person in whose power the remedy is, to set it in motion. Thus, judicial remedy necessarily includes the right to apply to a court, and show reasons why the remedy should be made available. And a legislative remedy, or one within the power of the legislature, includes the right in the party entitled to it to present his case to that body, and demand its action in his behalf. It requires no argument to-show that such a right is of value, for the application of the remedy may depend upon it. To take away the right, or, what would be the same in affect, to deprive him of an opportunity to exercise it, would certainly affect seriously the value and efficiency of his remedy.

It may be assumed that, with the same opportunity in the bondholders to fully present their'claims to the people, and in the people to properly investigate, deliberate upon, and decide the justice of the claims, the people would grant,the relief to which the holders were entitled as readily as the legislature would. When the bonds were issued, the holders had a right to apply for relief to the legislature, and there was no difficulty in the way of exercising the right. The legislature is small in numbers, select, its members supposed to be chosen' for their intelligence, integrity, and ability to deal with questions coming before such a body; deliberative, its proceedings conducted according to established rules; responsible, for every member is sworn to do his duty, and must answer to his constituents for the manner in which he performs it; acting openly, so that every one may know how each member performs his duty; having stated times and a stated place for meeting, so that every man may know when and where it is to be found together; with power to send for persons and papers, to take evidence and ascertain facts, resembling that possessed by a court of justice; and having the opportunity, when all assembled, to hear arguments, to deliberate, and reason together of what the state ought in right to do in any ease before them. But the people are dispersed throughout the state; they can never be brought together to act as a deliberative body. They investigate, reach conclusions, and act by no established rules, each individual being in those matters a law unto himself, and for his action responsible to no one, and each voting by secret ballot. They are unable to resort to the methods pertaining to a court or legislature to ascertain the facts, and unable to reason together as a body upon any claim against the state. An opportunity to present to the people a claim against the state, and apply to them for relief, in fact does not and cannot exist, and the right to do so is a mere shadow; for all that any one can do is to present his case, and apply for relief, to such separate individuals of the people as he may be able to reach. The right of the bondholders to aq>ply for recognition of their claims and for redress, so far as it was an available and efficacious right, was practically taken away. The value and efficiency of the remedy was thus lessened. Suppose, when the bonds -were issued, it had been expressed in the constitution, and repeated in the bonds, that no law levying a tax, or making other provision for the payment of then-interest or principal, should take effect until submitted to and adopted by the people in a popular election, can any one believe that they would have been of equal value in the financial markets with bonds, the power and duty to provide for paying which was in the legislature ? The amendment necessarily diminished the value of the bonds by rendering their payment less certain.

. We conclude, therefore, that it may be regarded as entering into the contract that the power and duty vested in and imposed upon the legislature, at the time the bonds were issued, to provide by taxation or otherwise for their payment, should continue and be exercised; and also that such power and duty in the legislature was a remedy which could not be taken away without providing another equally efficient. The amendment of November 6, 1860, taking away the-power of the legislature to provide for payment of the bonds, is in violation of this contract and lessens the efficiency of the remedy. It. is, therefore, repugnant to the constitution of the United States, and void. Being void, it cannot affect the validity of the act of March 2, 1881; for it is still in the power, and is still the duty, of the legislature to provide for payment of the bonds.

The objection that the act of March 2, 1881, attempts to delegate-legislative power, requires a reference to several sections of the act ,to ascertain what is referred to the judges to decide, what effect is given to their decision, and what is made to depend upon their decision.

Section 2 constitutes the judges of the supreme court a tribunal (the places of those judges disqualified or declining to act to be filled, as provided in section 8, by the governor appointing judges of the district courts) to hear, consider, and determine the matters submitted to them by the act'. Section 2 provides: “Said judges shall hear arguments, determine and decide whether the legislature has power to provide for the payment, adjustment, or settlement of the liability of the state on said Minnesota state railroad bonds without submitting the matter to a vote of the electors of the state, notwithstanding the amendment to section 2, article 9, of the constitution, adopted November 6, 1860.” It appoints a time and place for them ■to meet, and for filing their decision with the clerk of the supreme-court. Section 4 provides that the clerk of the court, as soon as the decision shall be filed with him, shall prepare and file with the state auditor a certified copy of such decision, and it proceeds: “If the decision be against the validity of such constitutional amendment, or that the legislature has power to provide for the settlement of said bonds without submission to the people, then it shall be the duty of the governor and auditor of state to cause to be prepared new bonds of the state, which new bonds shall be styled c Minnesota State Railroad Adjustment Bonds,’ ” the new bonds to be exchanged for the old ones. Section 5 provides: “In case the decision of the tribunal to whom the validity of said cohstutional amendment shall be submitted under the provisions of this act shall be in favor of the validity of such amendment, and that tlio legislature has not power to provide for the adjustment of said bonds without submission to the people, then this act shall be submitted to the electors of the State of Minnesota at the next general election to be held therein after the filing of said decision; and, within sixty days after said election, if said act shall be adopted by a majority of said electors present and voting thereon, the same proceedings shall be had for the settlement and adjustment of said Minnesota state railroad bonds as hereinbefore provided for in case of a decision by the court holding said amendment invalid.”

It then provides the mode for submitting it to the people-, and of voting on it. Section 6 provides for the tribunal computing and reporting the amount due on certain judgments, and the payment by the state in the new bonds, or in money, of fifty per cent, of such amount. Section 7 provides for the tribunal ascertaining and reporting upon claims for work, labor, or services performed, or for provisions, boarding of contractors, workmen, or others, or for material or supplies of any kind furnished and actually used in the location and construction of either or any part of the lines of railroad of the land-grant railroad companies which received said state railroad bonds from the state, which occurred prior to the time when the state acquired and transferred said lines of railroad, and for the payment, within a stated aggregate amount, of fifty per cent, of such claims in money or the now bonds. Section 9 establishes a fund for the payment of the interest on the new bonds.

It is a principle not questioned that, except where authorized by the constitution, as in respect to municipalities, the legislature cannot delegate legislative power; cannot confer on any body or person the power to determine what shall be the law. The legislature only must determine what it shall be. The courts only must authoritatively determine what it is. If this act leaves it to be determined by the judges that the act, or any part of it, shall take effect and become law, then it is a violation of the principle we have stated, and is void; and it does not matter that the act does not profess in terms to confer this power on the judges, if it gives it in substance and effect! It requires only an analysis of this act to make the conclusion inevitable that, whether the act is to have any practical operation at all, is, in substance, left for the judges to say. If they do not act at all — if they express no opinion upon the validity of the constitutional amendment — then neither section 4 nor section 5 is to take effect as law. If they conclude that the amendment is invalid, then section 4 is to be the law, and section 5 is not; but if they arrive at a contrary conclusion, section 5 is to be the law and section 4 is not. To put the statement in a different form, section 4 is to go into effect, to become a law,' to establish a rule for the action of the governor and auditor, and create duties for them to perform, provided the judges are of the opinion that the legislature has authority to enact that section, otherwise not; and if they are of opinion that the legislature has no authority to enact section 4, then section 5 is to go into effect. As a law must rest upon the authority of the legislature to enact it, both of these sections cannot be law. If the constitutiónal amendment be valid, then the legislature could not make section 4 law. If it be invalid, the legislature could not make section 5 law. And the act does not assume to determine which of the two shall be law, but leaves it in substance, if notin form, to be-determined by the judges. In enacting a law the legislature must pass on two things — First, on its authority to make the enactment; second, on the expediency of the enactment. It cannot refer either of these questions to the decision of any one else, so that the enactment shall or shall not take effect as law according as such decision shall be. If, by the terms of an act, it was to take effect and be operative only in case A. or B. should think the act expedient, surely no one would claim it to be valid. To make it take effect and be operative only in case A. or B. should think the legislature had authority to pass it, would equally vitiate it.

It is not questioned that within certain limits the operation of a legislative act may be made to depend on a future contingency; upon the happening of some event or the arising of some condition of things. Very many laws are of that character. But in all such cases the legislature determines upon its authority to pass the law, and that if the specified event shall happen, or the condition of things describéd shall arise, it will be expedient that the act shall have the operation provided for such event or condition of things. But no one before ever thought that the expression of a non-judicial opinion on the authority of the legislature to pass an act, could be regarded as a future contingency upon which the effect of the act as law could be made to depend. We doubt if any other such law as this was ever passed. We regard the act as not only bad in principle, but dangerous as a precedent. If the legislature may submit to others this provision in the constitution as affecting its legislative authority, and make the taking effect of laws depend on the decision, it may in like ■ manner refer any other constitutional provision; and as there is nothing to restrain the legislature in .its choice of the persons to whose decision it will refer such matters, it may make the reference to any person or persons, without regard to their fitness or qualifications to determine the questions submitted. The fact that their choice happened to fall upon five persons who are judges, inasmuch as the submission is not made to them as a court, and in a judicial manner, cannot affect the right to submit. The selection and reference would be as valid had it fallen upon any other five men. The evils which might grow out of a power in the legislature to thus evade the responsibility of determining its authority to pass laws or the expediency of passing them — to shift such responsibility to any one it might choose to designate — must be apparent. The act delegates to the judges the power to determine what provisions in it shall be law — a power which the legislature itself must exercise and cannot delegate. It is therefore void. The provisions of sections 6 and Y of the act do not affect its validity. There can be no doubt that the legislature may, with the consent of the other party, submit any controversy growing out of the business transactions of the state to arbitration, to the same- extent that private persons may; or that, if the state proposes a benefaction or gratuity, the legislature may make it depend on the result of the inquiry and decision of any commission, board, .or officer it may designate. So far as those provisions in the act are concerned, the case comes within the decision in Western R. Co. v. De Graff, 27 Minn. 1. These sections, however, cannot take effect, for the whole act must fall because of its delegation of legislative authority.

While some of the members of the court do not entirely agree with some of the reasoning in the opinion, yet they all concur in these' conclusions, viz.: First, that the constitutional amendment of November 6, 1860, providing that “no law levying a tax or making, other provision for the payment of interest or principal of the bonds denominated ‘ Minnesota state railroad bonds’ shall take effect or be in force until such law shall have been submitted to a vote of the people, and adopted by a majority of the electors of the state voting on the same, ” is invalid, for the reason that it impairs the obligation of those bonds; second, that the act of March 2, 1881, is unconstitutional and void, because it delegates legislative power to the tribunal created by it; third, that a writ of prohibition should issue.

Let the writ of prohibition absolute issue, and be served by any elector of the state on or before the 18th day of September, 1881.