5 Bosw. 341. Bank bills held at the time of the failure of the bank but not those acquired afterward have been allowed to be set off against the bank. Jefferson Co. Bk. v. Chapman, 19 Johns. 322; Diver v. Phelps, 34 Barb. 224. See, also, Gee v. Bacon, 9 Ala. 609; Exchange Bank v. Knox, 19 Gratt. 739; Hallowell, etc., Bk. v. Howard, 13 Mass. 235.

The case of Carty v. Shields, 5 Week. Not. Cas. 241, decided by the Supreme Court of Pennsylvania on the 18th February last, illustrates the principle that an existing right of way cannot be enlarged or altered by uses not contemplated by the parties at the time of its creation. One Carty was the owner of two lots fronting upon a railroad, the larger of which he used as a coal yard. He connected the tracks of the railroad with his coal yard by a side track passing over the smaller lot, and over this side track he carried on the business of a

coal dealer. He sold the smaller lot to one Shields, without any terms as to way or incumbrances. After the sale Carty established a lime business on the larger lot, in addition to the coal business, and used the siding for the passage of cars employed in both these trades. Shields threatening to tear up the track, Carty filed a bill to restrain him from so doing. The court, in affirming a decree forbidding Shields from interfering with the use of the track by Carty for his coal business, held that Shields, in the absence of terms in his deed, could not be presumed to have accepted it burdened with a larger use or incumbrance than his observation gave him notice of, and that Carty was entitled only to the use of the track for coal and could not use it for his lime business. The case of Onthank v. Lake Shore & Mich. So. R. R. Co., 16 Alb. L. J. 428, decided by the Court of Appeals of this State in November last, enunciates a similar principle. In that case plaintiff, by a written instrument, gave defendant a right to lay and maintain across his land a pipe to convey water from a spring. The instrument did not specify the size of the pipe or where it should be laid. The defendant laid pipe of a particular size which it maintained for a number of years. Afterward it laid a larger size of pipe carrying from the spring a much greater supply of water. The court held that by laying pipe of a particular size, defendant fixed the extent of its easement and was not thereafter entitled to lay a larger pipe. See, also, Jennison v. Walker, 11 Gray, 423; Wynkoop v. Barger, 12 Johns. 222; French v. Hays, 43 N. H. 30; Bannon v. Angier, 2 Allen, 128; Kirkham v. Sharp, 1 Whart. 323.

age, and was therefore void as to importers, was for that reason unconstitutional and void as to all other persons. The court held that it was not so void, saying that if a law which is constitutional under certain limitations exceeds those limitations, it may still be operative within its legitimate sphere and void only for the excess. See, as holding a similar doctrine, Commonwealth v. Kimball, 24 Pick. 359, where Chief Justice Shaw says, in respect of a similar statute of Massachusetts: "Supposing the law tion of the United States in so far as it prohibited could be construed to be repugnant to the Constituthe sale of imported spirits by the importer in the original packages, it would be void thus far and no farther, and in all other respects conforming to the acknowledged power of the State government, it would be in full force." The general principle is that where a part of a statute is unconsti

tutional that fact does not authorize the courts to declare the remainder void also unless all the

provisions are connected in subject-matter depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed the legislaIf a statute attempts to accomplish two or more ture would have passed the one without the other. objects and is void as to one it may still be in every respect valid and complete as to the other. See Commonwealth v. Clapp, 5 Gray, 100; State v. Copeland, 3 R. I. 33; Armstrong v. Jackson, 1 Blackf. 374; People v. Hill, 7 Cal. 97; Thompson v. Grand Gulf R.R. Co., 3 How. (Miss.) 240; Mobile & Ohio

R.R. v. State, 29 Ala. 573; Santo v. State, 2 Iowa, 165; People v. Briggs, 50 N. Y. 566; State v. Esterbrook, 3 Nev. 173; Hagerstown v. Dechert, 32 Md. 369.

In Jerome v. Smith, 48 Vt. 230, plaintiff bought a ticket over defendant's railroad with checks attached. While riding over the route a conductor detached and retained one of the checks and gave plaintiff in lieu thereof a conductor's check which was a full equivalent for the check retained. This check plaintiff lost. Before plaintiff arrived at the point in his journey to which the conductor's check entitled him to ride, another conductor took the train. He demanded of plaintiff the production of the conductor's check or payment of fare, and refused to let him ride on the passage ticket held by him. Plaintiff being unable to find the conductor's check and refusing to pay fare, he was ejected from the train. The court held that he was lawfully ejected. This decision seems to be supported by a number of authorities. Among the most nearly in point are Hamilton v. N. Y. C. R. R. Co., 51 N. Y. 100; Standish v. Narragansett Steamship Co., 111 Mass. 512; Townsend v. N. Y. C. R. R. Co., 56 N. Y. 295; Duke v. G. W. Ry. Co., 14 U. C. C. P. 369. See, however, Pittsburgh R. R. Co. v. Hennigh, 39 Ind. 509; Palmer v. Charlotte R. R. Co., 3 S. C.

days of April, July, and October, 1870, and January and July, 1871, having been retained by the city, this suit was brought to recover the sums so retained, and the answer to the complaint admitted the retention charged, but attempted to justify it under city ordinances of March 20, 1870, and March 21, 1871. By these ordinances, set out in full in the answer, the city appraiser was directed to assess a tax of two cents upon the dollar of the value of all real and personal property in the city of Charleston, for the purpose of meeting the expenses of the city government, and the third section of each ordinance declared that the taxes assessed on city stock should be retained by the city treasurer out of the interest thereon, when the same is due and payable. On these pleadings the case was submitted to the court for trial without a jury, and the court made a special finding of facts, substantially as set forth in the complaint and averred in the answer, upon which judgment was given for the defendant. This judgment was subsequently affirmed by the Supreme Court, and the record is now before us, brought here by writ of error. It is objected that we have no jurisdiction of the case, because, it is said, no Federal question was raised of record or decided in the Court of Common Pleas where the suit was commenced.

The city of Charleston was incorporated in 1783, before the adoption of the Federal Constitution. Among other powers conferred upon the city councils was one to "make such assessments on the inhabitants of Charleston, or those who hold taxable property within the same, for the safety, convenience, benefit, and advantage of the city, as shall appear to them expedient." It was under this authority, repeated in subsequent legislation, the city ordinances of 1870 and 1871 were made. It may well be doubted whether the acts of the legislature were intended to empower the city to tax for its own benefit the debts it might owe to its creditors, especially to its non-resident creditors. Debts are not property. A non-resident creditor cannot be said to be, in virtue of a debt due to him, a holder of property within the city, and the city councils were authorized to make assessments only upon the inhabitants of Charleston, or those holding taxable property within the same. To that extent the Supreme Court of the State has decided the city has power to assess for taxation. That decision we have no authority to review. But neither the charter itself nor any subsequent acts of legislation directly or expressly interfered with any debts due by the city or gave to the city any power over them. They simply gave limited legislative power to the city councils. It was not until the ordinances were passed under supposed authority of the legislative act that their provisions became the law of the State. It was only when the ordinances assessed a tax upon the city debt and required a part of it to be withheld from the creditors, that it became the law of the State that such a withholding could be made. The validity of the authority given by the State, as well as the validity of the ordinances themselves, was necessarily before the Court of Common Pleas when this case was tried, and no judgment could have been given for the defendants without determining that the ordinances were laws of the State, not impairing the obligation of the contracts made by the city with the plaintiff. And when the case was removed into the Supreme Court of the State, that court understood a Federal question to be before it. One of the grounds of the notice of the appeal was "that such a tax is a violation of good faith in the contract of

loan, impairs the obligation of said contract, and is, therefore, unconstitutional and void." It is plain, therefore, that both in the Common Pleas and in the Supreme Court of the State a Federal question was presented by the pleadings and was decided, decided in favor of the State legislation and against a right the plaintiff claims he has under the Constitution of the United States. The city ordinances were in question on the ground of their repugnancy to the inhibition upon the States to make any law impairing the obligation of contracts, and the decision was in favor of their validity. Nothing else was presented for decision, unless it be the question whether the acts of the State legislature authorized the ordinances, and that was ruled affirmatively. The jurisdiction of this court over the judgments of the highest courts of the States is not to be avoided by the mere absence of express reference to some provision of the Federal Constitution. Wherever rights acknowledged and protected by that instrument are denied or invaded under the shield of State legislation this court is authorized to interfere. The form and mode in which the Federal question is raised in the State court is of minor importance, if, in fact, it was raised and decided. The act of Congress of 1867 gives jurisdiction to this court over final judgments in the highest courts of a State in suits "where is drawn in question the validity of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity." Not a word is said respecting the mode in which it shall be made to appear that such a question was presented for decision. In the present case it was necessarily involved, without any formal reference to any clause in the Constitution, and it is difficult to see how any such reference could have been made to appear expressly.

In questions relating to our jurisdiction, undue importance is often attributed to the inquiry whether the pleadings in the State court expressly assert a right under the Federal Constitution. The true test is, not whether the record exhibits an express statement that a Federal question was presented, but whether such a question was decided, and decided adversely to the Federal right. Everywhere in our decisions it has been held that we may review the judg. ments of a State court when the determination or judgment of that court could not have been given without deciding upon a right or authority claimed to exist under the Constitution, laws, or treaties of the United States, and deciding against that right. Very little importance has been attached to the inquiry whether the Federal question was formally raised. In Crowell v. Randall, 10 Peters, 368, it was laid down, after a review of almost all our previous decisions, "that it is not necessary the question should appear on the record to have been raised, and the decision made in direct and positive terms, in ipsissimis verbis, but that it is sufficient if it appears by clear and necessary intendment that the question must have been raised, and must have been decided, in order to have induced the judgment." This case was followed by Armstrong et al. v. Treasurer, 16 Pet. 281, where it was held sufficient to give this court jurisdiction if it appear from the record of the State court that the Federal question was necessarily involved in the decision and that the court could not have given the judgment or decree which they passed without de

ciding it. See, also, Bridge Proprietors v. Hoboken Company, 1 Wall. 116, and Furman v. Nichol, 8 id. 44. That involved in the judgment of the Court of Common Pleas and in that of the Supreme Court of the State was a decision that the city ordinances of Charleston were valid, that they did control the contract of the city with the plaintiff, and that they did not impair its obligations is too plain for argument. The plaintiff complains that the city has not fully performed its contracts according to their terms, and it has paid only four per cent interest instead of six per cent which it promised to pay, and that it has retained two per cent of the interest for its own use. The city admits all this, but attempts to justify its retention of one-third of what it promised to pay by pleading its own ordinances directing its officer to withhold the two per cent of the interest promised whenever it became due and payable according to the stipulations of the contract, calling the amount detained a tax. Of course the question is directly presented whether the ordinances are a justification; whether they can and do relieve the debtor from full compliance with the promise; in other words, whether the ordinances are valid and may lawfully be applied to the contract. The court gave judgment for the defendant, which would have been impossible had it not been held that they have the force of law, notwithstanding the Constitution of the United States, and the Supreme Court affirmed the judgment. Our jurisdiction, therefore, is manifest.

We come, then, to the question whether the ordinances decided by the court to be valid did impair the obligation of the city's contract with the plaintiff. The solution of this question depends upon a correct understanding of what that obligation was. By the certificates of stock, or city loan, held by the plaintiff, the city assumed to pay to him the sum mentioned in them, and to pay six per cent interest in quarterly payments. The obligation undertaken, therefore, was both to pay the interest at the rate specified, and to pay it to the plaintiff. Such was the contract and such was the whole contract. It contained no reservation or restriction of the duty described. But the city ordinances, if they can have any force, change both the form and effect of the undertaking. They are the language of the promisor. In substance they say to the creditor: "True, our assumption was to pay to you quarterly, a sum of money equal to six per cent per annum on the debt we owe you. Such was our express engagement. But we now lessen our obligation. Instead of paying all the interest to you we retain a part for ourselves, and substitute the part retained for a part of what we expressly promised you." Thus applying the ordinances of the contract it becomes a very different thing from what it was when it was made, and the change is effected by legislation, by ordinances of the city, enacted under asserted authority of laws passed by the legislature. That by such legislation the obligation of the contract is impaired is manifest enough, unless it can be held there was some implied reservation of a right in the creditor to change its terms, a right reserved when the contract was madeunless some power was withheld, not expressed or disclosed, but which entered into and limited the express undertaking. But how that can be-how an express contract can contain an implication, or consist with a reservation directly contrary to the words of the instrument, has never yet been discovered.

It has been strenuously argued on behalf of the de

fendant that the State of South Carolina and the city council of Charleston possessed the power of taxation when the contracts were made; that by the contracts the city did not surrender this power; that, therefore, the contracts were subject to its possible exercise, and that the city ordinances were only an exertion of it. We are told the power of a State to impose taxes upon subjects within its jurisdiction is unlimited (with some few exceptions) and that it extends to every thing that exists by its authority or is introduced by its permission. Hence it is inferred that the contracts of the city of Charleston were made with reference to this power and in subordination to it.

All this may be admitted, but it does not meet the case of the defendaut. We do not question the existence of a State power to levy taxes as claimed, nor the subordination of contracts to it, so far as it is unrestrained by constitutional limitation. But the power is not without limits, and one of its limitations is found in the clause of the Federal Constitution, that no State shall pass a law impairing the obligation of contracts. A change of the expressed stipulations of a contract, or a relief of a debtor from strict and literal compliance with its requirements, can no more be effected by an exertion of the taxing power than it can be by the exertion of any other power of a State legislature. The constitutional provision against impairing contract obligations is a limitation upon the taxing power as well as upon all legislation, whatever form it may assume. Indeed, attempted State taxation is the mode most frequently adopted to affect contracts contrary to the constitutional inhibition. It most frequently calls for the exercise of our supervisory power. It may, then, safely be affirmed that no State, by virtue of its taxing power, can say to a debtor, "you need not pay to your creditor all of what you have promised to him. You may satisfy your duty to him by retaining a part for yourself, or for some municipality, or for the State treasury." Much less can a city say, we will tax our debt to you, and in virtue of the tax withhold a part for our own use.

What, then, is meant by the doctrine that contracts are made with reference to the taxing power resident in the State, and in subordination to it? Is it meant that when a person lends money to a State, or to a municipal division of the State having the power of taxation, there is in the contract a tacit reservation of a right in the debtor to raise contributions out of the money promised to be paid before payment? That cannot be, because if it could, the contract (in the language of Alexander Hamilton) would "involve two contradictory things: an obligation to do and a right not to do-an obligation to pay a certain sum and a right to retain it in the shape of a tax. It is against the rules both of law and of reason to admit by implication in the construction of a contract a principle which goes in destruction of it." The truth is, 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 contracts between private persons. Hence, instead of there being in the undertaking of a State or city to pay, a reservation of a sovereign right to withhold payment, the contract should be regarded as an assurance that such a right will not be exercised. A promise to pay, with a reserved right to deny or change the effect of the promise, is an absurdity.