Opinion of the court.

to applications for the reissue of patents, and the decisions of the commissioner, that "in all such cases the applicant, if dissatisfied with such decision, shall have the same remedies, and be entitled to the benefit of the same privileges and proceedings as are provided by law in case of original applications for patents."

This renders it necessary to recur to the act of 1836, and to consider carefully its provisons touching the applications to which it relates.

Both acts should be liberally construed to meet the wise and beneficent object of the legislature. Patentees are a meritorious class, and all the aid and protection which the law allows, this court will cheerfully give them.

If the commissioner should hold that a party applying originally for a patent "was not the original and first inventor," and should decide against him upon that ground, the applicant could undoubtedly take an appeal from his decision. The commissioner having reached this conclusion, would be under no obligation to go further and examine any other question arising in the case, and it would not be necessary to the right of appeal that he should do so.

Here an assignee applied for the reissue of a patent. It was clearly competent for the commisioner, and it was his duty, to decide whether the applicant was an assignee at all, and, if so, whether he was an assignee with such an interest as entitled him to a reissue within the meaning of the statutory provision upon the subject. The latter question is an important one. It is as yet unsettled, and awaits an authoritative determination.

The commissioner says, in his answer to the rule, that he could not examine the application, because none had been filed in the Patent Office.

This position is untenable. It is averred in the petition, and not denied in the answer-and, therefore, as in other like cases of pleading, to be taken as conceded that the application was filed with the acting commissioner. It is also admitted, in the answer, that the requisite amount of fees had been paid by the relator, but, it is added, that it

Opinion of the court.

had not been placed to the credit of the office, and was in the hands of the chief clerk, subject to the relator's order.

The relator had done all in his power to make his application effectual, and had a right to consider it properly before the commissioner.

It was so. If it was not, a mandamus would clearly lie to compel the commissioner to receive it. It was his first duty to receive the application, whatever he might do subsequently. Without this initial step there could be no examination, and, indeed, no rightful knowledge of the subject on his part. Examination and the exercise of judg ment, with their proper fruit, were to follow, and they did follow.

The commissioner found the question, whether the assignee was such a one as the law entitled to a reissue, lying at the threshold of his duties? It required an answer before he could proceed further. His decision was against the appellant. His examination of the subject was thorough, and his conclusion is supported by an able and elaborate argument. It was made a part of his reply to the rule, and is found in the record.

From this decision, whether right or wrong, the relator had a right, under the statute, to appeal.

If the mandamus had ordered the commissioner to allow the appeal, we should have held the order under which it was issued to be correct. But the order was that he should proceed to examine the application. That he had already done. The preliminary question which he decided was as much within the scope of his authority as any other which could arise. Having resolved it in the negative, there was no necessity for him to look further into the case. Entertaining such views, it would have been idle to do so. The question was vital to the application, and its resolution was fatal, so far as he was concerned. Only a reversal by the tribunal of appeal could revive it, and cast upon him the duty of further examination.

The principles of law relating to the remedy by mandamus are well settled.

Opinion of the court.

It lies where there is a refusal to perform a ministerial act involving no exercise of judgment or discretion.

It lies, also, where the exercise of judgment and discretion are involved and the officer refuses to decide, provided that, if he decided, the aggrieved party could have his decision reviewed by another tribunal.

It is applicable only in these two classes of cases. It cannot be made to perform the functions of a writ of error.

In Decatur v. Paulding,* referring to an act of Congress under which the relator in that case claimed a pension which had been refused her by the Secretary of the Navy, this court said: "If a suit should come before this court which involved the construction of any of these laws, the court certainly would not be bound to adopt the construction given by any head of a department; and if they supposed his decision to be wrong, they would of course so pronounce their judgment. But their construction of a law must be given in a case in which they have jurisdiction, and in which it is their duty to interpret the act of Congress in order to ascertain the rights of the parties in the cause before them. The court could not entertain an appeal from the decision of one of the secretaries, nor reverse his judgment in any case where the law authorizes him to exercise discretion or judgment; nor can it by mandamus act directly upon the officer, and guide or control his judgment or discretion in the matters committed to his care in the ordinary discharge of his official duties. . . . The interference of courts with the performance of the ordinary duties of the executive department of the government would be productive of nothing but mischief, and we are quite satisfied that such a power was. never intended to be given to them."

This case, as presented to the court below, was within neither of the categories above mentioned. The court, therefore, erred in making the order to which the commissioner objected.

The main question passed upon by the commissioner, and

14 Peters, 515.

Statement of the case.

which was supposed to underlie this case, is not before us for consideration. If it were, as at present advised, we are not prepared to say that the decision of the commissioner was not correct.

The order of the court below, awarding the mandamus, is reversed with costs, and it is ordered by this court that the application of the relator be by that court

OVERRULED AND DISMISSED.

VON HOFFMAN v. CITY OF QUINCY.

1. Where a statute has authorized a municipal corporation to issue bonds and to exercise the power of local taxation in order to pay them, and persons have bought and paid value for bonds issued accordingly, the power of taxation thus given is a contract within the meaning of the Constitution, and cannot be withdrawn until the contract is satisfied. The State and the corporation in such a case are equally bound.

2. A subsequently passed statute which repeals or restricts the power of taxation so previously given, is, in so far as it affects bonds bought and held under the circumstances mentioned, a nullity.

3. It is the duty of the corporation to impose and collect the taxes in all respects as if the second statute had not been passed.

4. If it does not perform this duty a mandamus will lie to compel it.

THIS case was brought up by a writ of error to the Circuit Court of the United States for the Southern District of Illinois.

The relator filed his petition in that court, alleging, among other things, as follows:

At the June Term, 1863, and before that time, he was the owner and holder of certain coupons on interest notes of the City of Quincy. They were past due and unpaid. When issued and negotiated they were attached to certain bonds made and delivered by that city, in payment for the stock of the Northern Cross Railroad Company, and of the Quincy and Toledo Railroad Company, subscribed for by

Statement of the case.

the city under and by virtue of certain acts of the legisla ture of Illinois, of the 17th of October, 1851, and 26th of January, 1853, and the 31st of January, 1857. By the provisions of these several acts the city was authorized to collect a special annual tax upon the property, real and personal, therein, sufficient to pay the annual interest upon any bonds thereafter issued by the city for railroad purposes, pursuant to law. It was required that the tax, when collected, should be set aside, and held separate from the other portions of the city revenue, as a fund specially pledged for the payment of the annual interest upon the bonds aforesaid. It was to be applied to this purpose, from time to time, as the interest should become due, "and to no other purpose whatsoever."

The city failed to pay the coupons held by the relator for a long time after they became due, and refused to levy the tax necessary for that purpose. The relator sued the city upon them in the court below, and at the June Term, 1863, recovered a judgment for $22,206.69 and costs. An execution was issued and returned unsatisfied. The judgment was unpaid. The city still neglected and refused to levy the requisite tax. He therefore prayed that a writ of mandamus be issued, commanding the city and its proper officers to pay over to him any money in their hands otherwise unappropriated, not exceeding the amount of the judgment, interest, and costs; and, for want of such funds, commanding them to levy the special tax as required by the acts of the legislature before referred to, sufficient to satisfy the judgment, interest, and costs, and to pay over to him the proceeds.

The city filed an answer. It alleged that there was no money in its treasury wherewith to satisfy the judgment, and as a reason why a peremptory writ of mandamus should not issue, referred to an act of the legislature of Illinois, of the 14th of February, 1863, which contains the following provisions:

Sec. 4. The city council of said city shall have power to levy and collect annually taxes on real and personal property within