The opinion
Mr. Justice Wylie
delivered a dissenting opinion as follows :
I am constrained to dissent from the judgment of the court -which has just been pronounced in the present case, and propose to state very briefly a few of the reasons for my opinion:
Previously to 1st of June last the territory of this District embraced two municipal corporations, namely, the city of Washington and the city of Georgetown, and one quasi corporation, denominated the Levy Court of the District of Columbia.
On the 21st of February last the Congress of the United States passed an act entitled “ An act to provide a govern *206 ment for the District of Columbia,” which, however, was not to go into operation till the 1st clay of June thereafter.
The first section of this act declares, “ that all that part of the territory of the United States included within the limits of the District of Columbia be, and the same is hereby, created into a government by the name of the District of Columbia^ by which name' it is hereby constituted a body corporate for municipal purposes, and may contract and be contracted with, sue and be sued, plead and be impleaded, have a seal and exercise all other powers of a municipal corporation not inconsistent with the Constitution and laws of the United States and the provisions of this act.”
The counsel for the defendants have expended much argument in this case, to prove that the new organization, created by this act, is not a municipal corporation, but a government of some other kind, and invested with some sort of sovereignty which places both it and its functionaries above the jurisdiction of the court.
The act of Congress which created this corporation declares it shall be a body corporate, for municipal purposes, and may sue and be sued. The. officers appointed under this corporation can hardly be entitled to immunity from suit ,w'hen the corporation itself is liable'to suit. It is quite certain that the powers conferred upon it are more extensive and discretionary than are usually granted to municipal corporations, and in many respects are such as Congress has been in the habit of granting to the governments created for its several Territories.
Nevertheless, it falls strictly within the description given by Mr. Wilcox, of a municipal corporation, as follows: “ When the people of a particular place, such as a city or town, are declared by competent authority to be incorporated, and are empowered to appoint one or more officers among them, they are constituted a municipal corporation, and the place is become a municipality.” Wilcox on Gorp., 15.
It is of no importance, in my judgment, by what name *207 we call our new government. It may be sued, and so may its officers; and neither it nor they can exercise any functions, or do any act, except such as it or they are authorized to perform by the law which gave them existence and defined their powers.
The people of a State, or of a corporation, however, may be brought under liability to pay bonds or other obligations issued in its name, bj7 its proper officers, even when such bonds or obligations have been issued contrary to law, provided they be payable to bearer, and are in the hands of a bona fide holder. This principle has been settled by the Supreme Court of the United States, not in one, two, or three decisions only, but in a numerous series, too recent and too well known to the country at large, as well as to the profession, to require citation.
If the bonds are once issued and signed by the proper officers, and on their face profess to be in pursuance of law the injury to the tax-payer is irreparable. For when the taxes are paid no man can tell how much'of his own taxes is to be applied to the payment of the illegal bonds, or the interest upon them, and how much to other objects; and if he could ascertain such amount it would not avail him, since, however illegal the issue of the bonds may have been, the people are still obliged to pay them. They must suffer for the acts of their own agents. It is true that as to the people of this District, they have been vouchsafed but a small participation in the present government, and no voice whatever in the selection of its officers. They are permitted to choose for themselves the members of one branch of the legislature only. But that is enough to bind them to responsibility, rather, to be sure, through a fiction of law than a practical truth.
The position, therefore, that the taxpayer can have his remedy at law7 against the tax collector is an egregious error. The illegal bonds once issued, and. in the hands of an innocent holder for value, become valid obligations, and *208 a mandamus would be granted to compel the corporation to levy the taxes required to pay them.
The only plank left to the taxpayer, therefore, is the injunction to arrest.their issue — that right arm of the incomparable jurisdiction of a court of chancery. Is it possible — can it be believed — that in such a case any court of equity would turn a deaf ear to his complaint, and thus prove itself unfaithful alike to its own honor and to its trust ?
But it has been skid that the courts have no right to interfere with the legislative branch of the government. The courts do not thus interfere; but they will declare an unconstitutional act to be void, and to prevent irreparable wrong will arrest the execution by any officer of such a pretended law. This power they enforce between themselves. A judgment passed by a court not having jurisdiction over the subject is void, and the sheriff or marshal who attempts to enforce it is held to be a trespasser. In like manner a void law shall afford no protection to the executive officer who obeys it. He will be liable in damages for his act, if that form of redress be available; and if it be not available, the court of chancery must restrain his act by injunction, and crush the wrong before its birth.
The history of these municipal corporations in this country and in recent times is not such as to commend any one of them to our confidence in advance. Extravagance, mismanagement, peculation, corruption, upstart wealth and venality (the latter reaching even to the fountains of justice) on the part of those in possession of their control; and burthensome taxation on the part of the people have been too often the rule. Thank God, these fearful results have not as yet been realized amongst us. But our government has not yet reached the sixth month of its existence, and there are ominous symptoms in our condition. Nowhere more than here is the principle of obsta principiis of greater necessity, when we 'consider that under the very law itself *209 which governs us every man’s property in the District has been placed at the mercy of the needy and mercenary, with an invitation to divide it amongst themselves through the simple process of a vote, and our rulers have been placed beyond the reach of those who may be wronged and oppressed by their acts. If the latter can find no protection in the court, helpless indeed is their condition.
I shall now proceed to examine whether, in the case before the court, the officers of the government of this District are authorized by the charter to issue the $4,000,000 of bonds in question.
As has been stated already, the act for creating the new government was passed on February 21, 1871, but did not go into effect until June 21 thereafter.
On the 10th of July the Legislature of the District passed an act entitled “An act making appropriations for improvements and repairs in the District of Columbia, and providing for the payment thereof.”
It appropriates $4;000,000 to be laid out in improvements “ until the expiration of the first fiscal quarter after the adjournment of the next session of the Legislative Assembly; ” and provides for the issue of a like amount in bonds of the corporation with 7 per cent, interest, payable to bearer.
The organic act declares that “no debt by which the aggregate debt of the District shall exceed 5 per cent, of the assessed property of the District, shall be contracted, unless the law authorizing the same shall, at a general election, have been submitted to the people, and have received a majority of the votes cast for members of the Legislative Assembly at such election.” The law in question was passed before any assessment had been made of the property in the District, and was not submitted to a vote of the people.
At the date of the passage of this law the aggregate debts of the old corporation of the District already amounted *210 to nearly, if not quite, 5 per cent, on the assessed value of the property of the District. So that, if these debts are to be'taken into account, the issue of the $>4,000,000 of bonds, as proposed in the law, would swell the aggregate debt of the District greatly beyond the limit prescribed by the charter.
The complainants, as taxpayers in the city of Washington and District of Columbia, insist that these debts ought to be taken into the account; and the defendants, on the other hand, insist that they compose no part of the debt of the District. And this is the main, central question in the present controversy, and the only one remaining which I propose to discuss. Other questions of great interest and importance are presented upon the pleadings, and have been argued by counsel, but their consideration would protract this dissenting opinion to an inconvenient length.
The first section of the organic law, or charter, creates a new corporation embracing the whole territory of the District of Columbia; and the fortieth section declares that on and after the 1st day of June, 1871, the charters of the cities of Washington and Georgetown, and the powers of the Levy Court of the county of Washington, and all their several officers, should be abolished; and the forty-first section declares “ that upon the repeal of said charters the new corporation or government of the District of Columbia be, and is hereby, declared to be the successor of said corporations, and all the property of the said corporations, and of the county of Washington, shall become vested in the said District of Columbia.”
Thus the charters of the old corporations' and their officers were all abolished and their property and corporate franchises transferred to the new corporation, which Congress declared should be their successor, under a new charter.
Now, the meaning of this word, “ successor,” is well and clearly settled in the language of the law. As to debts and *211 rights, the successor is identified with that which preceded it — it is the same.
In Colchester vs. Seaber, 3 Burr, 1866, a bond was taken in 1735, payable to the corporation of Colchester ten years .after date. Subsequently the name and organization of the corporation were twice changed by new charters; and besides in 1740 a judgment of ouster had been rendered against all the officers of the corporation, and their places remained vacant till 1763. In 1765 an action on the bond was brought by the new corporation in its own name as though the bond had been made to itself and not to the old corporation; and the defendant pleaded non est factum to the declaration.
Lord Mansfield said: “ Many corporations for want of legal magistrates have lost their activity and obtained new charters. And yet it has never been disputed but that the new charters revive and give activity to the old corporations, except, perhaps, in that case in Levinz, where the corporation had a new name, and even then the court made no doubt. Where the question has arisen upon an}7 remarkable metamorphosis, it has always been determined that they remain the same as to debts and rights.” * * * “ With respect to the power of entry for condition broken, the general rule of the common law was that none shall take advantage of conditions executory who are not parties or privies; and of the latter none but such as are privies in right; for neither privies in estate nor privies en fait, nor privies in law, shall take such advantage, but privies in right shall; and, therefore, if a corporation, whether sole or aggregate, ecclesiastical or temporal, make a lease upon conditions, the successors may enter for condition broken, for they are privy in right; or, in another point of view, are the same body or person w7ho made the lease and imposed the condition, and therefore they may, perhaps, be considered to have a right to enter for condition broken, rather as parties than as privies.” Grant on Corporation, 151, citing Co. Litt., 2146.
*212 And the same author, page 8, says: “On the other hand two corporations may be made one by uniting one to 'the other, and in such case the corporation to which the.accretion is made may sue upon a cause of action* arising in respect of a thing in possession or a right vested in the other previously to the junction. In like manner where a right of action existed before the union against one of the corporations it still subsists,"and may be sued upon against the compound corporation.” Citing 6 Vin. Abr., 286; pl. 10 Yearb., 20, Edw., 4; fol. 6, pi. 7 London and Brighton Rwy. Co. vs. Goodwin, 3 Exch. R., 329.
In Chesapeake and Ohio Canal Company vs. Baltimore and Ohio Railroad Company, 4 Gill & J., 1, it was decided by the Court of Appeals of Maryland “ that where a corporation having vested rights is authorized by a new charter to surrender them to a new company, which the new one accepts, the latter stands in the place of the former.”
But the very point now under examination was settled by the Supreme Court of the United States, in the case of the Philadelphia, Wilmington and Baltimore Railroad Company vs. Howard, 13 How. R., 332.
On the 12th of July, 1836, a contract was entered into between Mr. Howard and the Wilmington and Susquehannah Railroad Company, which became the cause of action in the suit. Subsequently, by acts of the Legislature of Maryland, the Wilmington and Susquehanna Company, the Baltimore and Port Deposit Company, and the Philadelphia, Wilmington and Baltimore Railroad Company were consolidated under the name of the latter company.
The contract being in the name of the Wilmington and Susquehanna Company, and the action brought against the Philadelphia, Wilmington and Baltimore Company, the latter pleaded non est factum — that the deed was not of its-making.
Evidence was offered by the plaintiff to prove by admis *213 sions of its officers, made at a former trial against the old company, that the contract has been executed by that company. The evidence was objected to by the defendant, but admitted, and to this ruling defendant’s counsel excepted.
The opinion of the court was pronounced by Mr. Justice Curtis, and is as follows: “It is objected that the parties to that suit were not the same as in this one; but this is wholly immaterial. The evidence does not derive its validity from any privity of parties. It tends to prove an admission by the corporation that the instrument was sealed with its seal. It is further objected that the admission was not made by the defendants in this action, but by the Wilmington and Susquehanna corporation. It is true that the action in the trial of which the admission was made, being brought before the union of the corporations, was necessarily in the name of the original corporation; but, as by virtue of the act of union, the Wilmington and Susquehanna company, the Baltimore and Port Deposit company, and the Philadelphia, Wilmington and Baltimore company were merged in, and constitute one body corporate, under the name of the Philadelphia, Wilmington and Baltimore Railroad Company, it is very clear that at the time the trial took place in Cecil County Court, all acts and admissions in that ease, though necessarily in the name of the Wilmington and Susquehanna company, ■were done and made by the same corporation which now defends this action.”
The judgment in this case was affirmed, and a debt which had been contracted by the original company was held to be the debt of its successor — the Philadelphia, Wilmington and Baltimore Railroad Company.
It appears to me, therefore, to be perfectly clear — may I not say it appears absolutely demonstrated — that the several debts of the corporations which formerly éomposed the District of Columbia, are at this hour as much the debts of the new government as thougli they were the debts of its own *214 contracting, unless some other provisions of the organic act can be found which plainly absolves it from the obligation. It has been argued, however, that the obligation to pay those debts and liabilities has not been so transferred to the new government or corporation, in consequence of the special provisions contained in the fortieth section of the act. That section reads as follows :
“Sec. 40. And be it further enacted, That the charters of the cities of Washington and Georgetown! shall be repealed on and after the first day of June, A. D. eighteen hundred and seventy-one, and all offices of said corporations abolished at that date; the Levy Court of the District of Columbia and all offices connected therewith shall be abolished on and after said first day of June, A. D. eighteen hundred and seventy-one; but all laws and ordinances of said cities, respectively, and of said Levy Court, not inconsistent with this act, shall remain in full force until modified or repealed by Congress or the Legislative Assembly of said District; that portion of said District included within the present limits of the City of Washington shall continue to be known as the City of Washington, and that portion of said District included within the limits of Georgetown! shall continue to be known as the City of Georgetowm; and the Legislative Assembly shall have power to levy a special tax upon property, except the property of the Government of the United States, within the City of Washington, for the payment of the debts of said city; and upon property, except the property of the Government of the United States, within said District, not included within the limits of said cities, to pay any debts owing by that portion of said District: Provided, That the charters of said cities severally and the powers of said Levy Court, shall be continued for the following purposes, to wit: For the collection of all sums of money due to said cities respectively, or to said Levy Court; for the enforcement of all contracts made by said cities, respectively, or by said Levy Court, and all taxes, heretofore assessed, remaining unpaid ; *215 for the collection of all just claims against said cities, respectively, or against said Levy Court; for the enforcement of all legal contracts against said cities, respectively, or against said Levy Court, until the affairs of said cities, respectively, and of said Levy Court, shall have been fully closed; and no suit in favor of or against said corporations, or either of them, shall abate by reason of the passage of this act, but the same shall be prosecuted to final judgment as if this act had not been passed.”
The obligation to pay a debt is one thing and the mode of raising the money with which to pay it is another thing. This' section of the act relates to the latter alone. On the 1st of June, all the offices belonging to the old corporations were abolished, but their debts were preserved by the law, in justice to their creditors. But how is a corporation to pay its debts which has no officers, no organization, no property and no power to levy taxes ? How could such a thing be sued? How could tlxe corporation known as “The Mayor, Board of Aldermen, and Board of Common Council of the City of Washington,” exist after the law had ■declared that there shall be no Mayor, ixo Board of Aider-men, and no Board of Commoix. Council, and no officers of any description whatever ?
Blackstone says (Comm., Book. 1, Ch. 18): “ The debts of a corporation, either to or from it, are totally extinguished by its dissolution, so that the members thereof cannot recover or be charged with them in their natural capacities.”
To prevent such a catastrophe in the present instance the law provided that tlxe new government should be the successor of the old corporation, both as to their rights and obligatioxxs. It was not within the competency of Congress to deprive a corporation of its officers, its organization, its franchises and its property, and yet declare it should be liable for its obligations, except by providing a successor in respect to them all — both “ rights and debts,” as was said *216 by Lord Mansfield in the case I have cited. It was within its competency, however, to direct the new corporation in what way it should proceed to raise the means of meeting the obligations of its predecessors which Congress had imposed upon it, and it has done so. As to the debts of the corporation, “ The Legislative Assembly shall have power to levy a special tax upon property within the City of Washington for the payment of the debts of said city.” And a like provision is made for paying the debts of the other corporations. Why .were these directions provided ? For the reason that each of the old corporations was presumed to have derived exclusive benefit from the proceeds of these debts. The tax is not to be levied upon property of the corporations, for they had none after the 1st of June, 1871, but'upon property situated within the respective limits which belonged to them during their existence — upon property of individuals.
A similar provision is to be found in this very law of the new government for creating the debt of $4,000,000, which provides in Section 4, “ That the aforesaid four millions of dollars shall be paid out of the general improvement fund herein provided for, and be charged against the cities of Washington and Georgetown, and the county of Washington, in the proportion of the improvements which shall be made therein; and that special taxes in accordance with Section 37 of 'the organic act shall be levied in sections, wards or districts of 'Washington, Georgetown, and the county of Washington, to pay the cost of the particular local improvements which may be made therein, according to the plan of the Board of Public Works aforesaid.”
It is likewise declared in the twenty-second section of the organic act “That the ptoperty within the corporate limits of Georgetown shall not be taxed for the payment of any debt heretofore or hereafter to be contracted by the corporation of Washington, nor shall the property within the corporate limits of Washington be taxed for the payment of *217 any debt heretofore or hereafter to bp contracted by the corporation of Georgetown; and so long as said cities shall remain under distinct municipal governments the property within the corporate limits of said cities shall not be taxed,, for the local benefit of the other; nor shall said cities, or either of them, be taxed for the exclusive benefit of the county outside of the limits thereof; Provided, That the Legislative Assembly may make appropriations for the repair of roads or for the construction or repair of bridges outside the limits of said cities.”
if it be true in law that any debt contracted by the new corporation, or any debt which has been imposed upon it as the successor of the former corporations, is not to be considered its debt, for the reason that the means of its payment are required to be raised by special taxation upon some of the territorial departments into which the District of Columbia still continues to be divided, I can see no limit to the power of the new government to run into debt.
The act declares that “that portion of said District included within the present limits of the city of Washington shall continue to be known as the city of Washington, and that portion of said District included within the limits of the city of Georgetown shall continue to' be known as the-city of Georgetown,” etc.
By the help of this invention, therefore, the new government might go on increasing the debt by new loans to any amount, even without submitting its propositions to a vote of the people, and its debt would never be the larger, because the taxation for its payment must be apportioned upon the-several territorial departments of the District, in proportion to the benefits they may have derived from the expenditure of the money in the public improvements within their respective limits.
But it is urged again that the special taxation thus-authorized is for payment of the debts of the said cities- *218 and county respectively; that the debts are not designated in the law as debts which had been or should become debts ■of the new government.
This is an argument, it seems to me, built upon a mere .jugglery in words. The debts referred to on their face and in form were the debts of the old corporations, and were properly so described in the act. It was only by operation •of law that they became the debts of the new government. ;So when a man dies his last debt is paid, and yet, even in the precise language of the law, the debts which survive him are spoken of as being his debts, and the heir of his estate is bound to pay what are still called the debts of his ancestor.
Another instance is that the act in question employs ■language appropriate to the state of things existing at the date of its passage, February 21, 1871. It did not go into •operation until the 1st of June afterwards. At the time of its passage, therefore, and up to the 1st of June, the debts referred to were, in fact, as well as form, the debts of. their '.respective corporations, and could be spoken of only as such in the law.
As to the other provisions • of this 40th section, which declares that the “charters” of said cities, and the powers of ■said Levy Court, shall be continued for the collection of all sums of money, enforcement of contracts, collection of taxes heretofore assessed and remaining unpaid; for the collection •of all claims against them respectively, &c.; and that no ■suit in favor of or against such corporations, or either of them, shall abate by reason of the passage of this act, but the same shall be prosecuted to final judgment, as if the Act had not been passed — it seems to have little to do with the question under consideration.
It is quite manifest that by this provision the legislature intended merely to continue in force, in favor of the new ¡government, the charters of the old corporations — not the *219 corporations — for the purpose mentioned. The old corporate bodies were dissolved, while their charters, respectively,, were temporarily continued under their successor. For it is just as impracticable for a corporation to do any act without an organization or an officer, and with no right to either by the law, as it would be for a natural person who had lost his head and been deprived of all his members to perform the functions of a living man.
So, if the law should say that the “ Mayor, Board of Aldermen and Board of Common Council” of a city might bring suits, defend actions, collect taxes, &c., after the same law had abolished all these functionaries, it would speak an absurdity and an impossibility. It would not be absurd, however, for the legislature to provide that the charters of the old corporations, which are but acis of Congress, should continue in force ,for these purposes, after those corporations, with all their officers, had been abolished. As laws affecting the rights and obligations of those bodies, and providing the means for collecting arrears of taxes, they contain many important and useful provisons, which might wTell be continued in the hands of their successor. It is in this sense only that I understand this provision of the law.
There is still another view of this subject, and probably one which strikes the mind more readily than that upon which I have thus far been speaking — that which was presented with so much clearness on the argument by the complainants. It is this: That when Congress declared, in the organic act, that the aggregate debt of the District should at no time exceed the assessed value of the property of the District, this word “District,” which occurs twice in the same sentence, was used in both instances in the same sense. It could not be intended by Congress that the word should in this instance apply to the new corporation as a body politic. For, to say that the aggregate debt should in no' case exceed 5 per cent, of the assessed value of the property *220 .belonging to the body politic, would restrict the limit ■of indebtedness to a very small amount indeed. The body politic owns such a small amount of property that it may be said in general terms to have no property at all; and ■then all the individual property lying within the territory would be exempt from taxation. The word, therefore, must be taken in its sense of territorial limits. Hence, it follows that the “ aggregate debts ” in the sense of the law, are those which are chargeable upon all the property belonging to individuals, and situate within the limits known as the District of Columbia, and these debts include the debts as well of the former corporations as those of the new one.