delivered the following dissenting opinion:
This cause was pending in this court when the act of 1879 was passed repealing the charter of the city of Memphis, and also when a subsequent general act of the same session was passed, under which the same territory was reincorporafcd under the name of the “Taxing District.” The question now is, whether the cause shall be revived and prosecuted against the new corporation. The novelty of the question grows *746out of the peculiar features of the legislation referred to. It is expressly provided that the governmental agencies constituted under the new corporation shall have no power of taxation for any purpose. The taxation necessary for the new government is to be levied directly by the Legislature. Nor, in the language of the act, shall the new corporation “pay or be liable to pay any debt created by said extinct corporation, nor shall any of the taxes collected under the new act ever be used for the payment of any of said debts.”
The public property owned by the old corporation is transferred to the new to be held for public uses, but no property liable to be taken under execution for the payment of debts was thus transferred; nor was the now corporation, given any right to collect, receive or control the uncollected taxes due the old i corporation, but all such rights were transferred to a receiver appointed by the Governor under the authority of the act, with specific directions as to the appropriation of these assets to the payment of preexisting debts of the city.
This legislation has been before the Supreme Court of the United States with special reference to this latter provision, and it was held to be valid and free from constitutional objection: Meriwether, receiver, v. Garrett.
The controlling question, as I think, is whether the new corporation will be liable for the recovery should there be one, and whether it can be coerced by judicial process to pay the judgment rendered. I *747do not comprehend the propriety of reviving the cause' against the new corporation and proceeding to a decree against it, if we are forced to concede in the end that its authorities have no power under any circumstances to levy or collect the necessary taxes to pay the decree, or in any other manner to appropriate any funds that may legally come within their control to such payment. It is perfectly manifest, should there be a recovery, that the only mode of payment possible would be by levying and collecting taxes for the purpose, or by the appropriation of taxes previously levied. The corporation has no property, under these laws, liable to execution. We would be in an awkward predicament to render a decree that the complainant recover of the Taxing District a certain sum of money, and at the same time hold that the authorities of said corporation have not the right or authority to appropriate a single dollar of money that may come under their control to pay said recovery. If, as already said, the corporation can pay such a demand, it must either be by appropriating taxes levied by the Legislature or by levying and collecting other taxes. If it be not lawful for said corporate authorities to do either of these things, then it would not be lawful for them to pay the decree. Tf the charter -under which they act gives them no power in the premises, it would be inconsistent for this court to order them to do what at the same time we say they have not the right or power to do. Courts often do no doubt render judgments which they havp no practical means of enforcing, but they should never ren-*748dor judgments or make decrees which the parties may not lawfully comply with. The duty of paying judgments rendered against a municipal corporation must be performed by the officers and agents of the corporation ; if to do so would violate the charter under which they act, they ought not to be ordered to do so. I cannot concur in the propriety of rendering a judgment against the new corporation merely as a means of fixing the amount of the complainant’s debt so that he may have a “vantage ground’’ in seeking another remedy. The acts referred to do not make it the duty of any of the officers provided for under the new government to employ counsel or attend to the litigation pending against the old city. They are not required to perform any duly in reference to such suits. If it is merely to render a judgment ascertaining complainant’s debt, it would be more consistent to render it against the old city of Memphis as if its charter had not been repealed. This might be, as said, “a mere mockery of justice,” but not more so than to render the judgment against the new corporation when the latter cannot lawfully pay the judgment. I am. therefore clearly of opinion that, before we can order this cause revived against the Taxing District, we must come to the conclusion that if a judgment is rendered, the officers and agents, under the , act creating ■ said corporation, may lawfully pay the judg~ j ment by appropriating to that purpose the taxes levied [ by the Legislature, or by levying and collecting taxes: for the purpose themselvss, and if they refuse to do so; they may be compelled by process of this court. This *749is the question, from which it seems to me there is no escape.
From the provisions of the acts to which we have already referred, it will be seen that in order to hold that the corporate authorities under the new government can do either the one or the other, we must in 'some way get rid of or reverse the positive provisions of the act; that is to say, although the act says that the taxes levied by the Legislature shall not be by said authorities appropriated to the payment of the old debts of the city of Memphis, we must hold that, nevertheless, they may, and if necessary, shall bo so appropriated; and although the act says the officers of the new corporation shall for no purpose have the power to levy taxes, that, nevertheless, they shall have the power, and if necessary, shall levy taxes to pay the debts of the old city of Memphis, although the act says the new corporation is not liable.
I concede that it has been repeatedly held that where the charter of a city or town is repealed and the same territory reincorporated under another name, and no provision made for the debts of the old corporation, it will be presumed, in the absence of anything to the contrary, that the Legislature intended that the new corporation shall be liable for the debts of the old, and shall have power to levy and collect taxes for the purpose of paying the debts: Broughton v. Pensacola, 93 U. S.; Mount Pleasant v. Beckwith, 100 U. S. These cases are, however, put expressly upon the ground that there was nothing in the acts creating the new corporations indicating a different in*750tent or making a different' provision for the debts, or withholding from the new corporations the power to raise by taxation the means to pay the debts; and as the courts could not presume a purpose upon the part of the- Legislature to repudiate the debts, the inference was fair and legitimate that the purpose was not to change the corporation with respect to its liability for the old debts, or the power of its authority to levy and collect taxes for the purpose of ' making payment. In the present case there is no room for presumption;' the legislative intent is beyond question. The cases referred to (and all the leading cases and the strongest upon the subject) do not decide the present question either way. So far as any intimation is to be gathered from the reasoning, it is against the conclusion that the liability of the new corporation exists independent of ^or contrary to the legislative intent.
It has been most earnestly argued that as the new corporation embraces the same territory, people and property" as the old, it is therefore necessarily the same corporation and liable for the previous debts. The .territory, people and property embraced in a municipal corporation is one thing, the corporation (the legal entity) is another; but I predicate but little upon this technical distinction. The question is, whether the powers and duties of the governing agencies, with respect to the debts and liabilities of the old corporation, remain the same as they were before. The creditor has no rights against the property of citizen* within the city except through taxation. Upon this *751the supreme court were unanimous in Meriwether v. Garrett. So that, whatever may be tha moral features of the question, the liability of the new corporation depends not upon the identity of the citizens and property, but upon the' question whether the governing agencies under the new corporation have the power to levy or appropriate taxes to pay the debt. Is it their duty to do so? For, I repeat, if this cause is revived and a decree rendered against the Taxing District, then this court must adjudge that the authorities of the Taxing District shall pay the decree, and furthermore, that they must pay it by levying and collecting -taxes for the purpose, or by appropriating laxes levied by the Legislature.
Then the question arises, how shall we hold that the governing agencies of the Taxing District have the power to levy taxes for any purpose, or appropriate the taxes levied by the Legislature for the purpose of paying the debt, in the face of the positive language of the legislative act referred to? .1 believe it is agreed on all hands that “'municipal corporations are the mere instrumentalities of the State for the more convenient administration of local government. Their powers are such as the Legislature may confer, and they may be enlarged, abridged or entirely withdrawn at pleasure.” This is the language of Mr. Justice Field in Meriwether v. Garrett, and is moreover the doctrine upon which the decision of this court sustaining the constitutionality of these acts rests. See Luehrman v. Taxing District, 2 Lea, 425. Moreover, it is conceded, I believe, on all hands, that *752i“the power of taxation is purely legislative, and cannot be exercised otherwise than under legislative authority.” ITpon this proposition, also, the supreme court were unanimous in Meriwether v. Garrett; and Mr. Justice Field says that “the repeal of a law under which a tax is levied before the tax is actually collected, puts an end to the tax.” If, therefore, a municipal corporation is the mere creature of the i .Legislature — if it can exercise no powers except those . conferred upon it — if the power of taxation be purely ¡legislative — it must follow, that when the corporate ¡authorities of a city levy a tax, they do so by au¡'thority conferred upon them by the Legislature, and certainly the power of taxation cannot exist in a corporate government to which the Legislature never granted that power.
The governing agencies of the Taxing District are wholly different from those existing under the old city charter.' They are — 1. A board of fire and police commissioners, consisting of three 'commissioners, one of whom is to be appointed by the Governor and one by the county court. 2. A committee on ordinances and local laws, to be known as “the legislative council.” 3. A board of health. 4. A board of public works, to consist of five commissioners, two of whom are to be appointed by the Governor. The committee on local laws, or legislative council, is composed of the commissioners constituting the fire and police board and the board of public works.
Shall wo hold that some one of these governing agencies, as they are termed in the act, shall be com*753pelled to levy a tax to pay complainant’s debt, notwithstanding such a proceeding is wholly foreign to their duty as prescribed by the statute ?
The only ground upon which it has been argued that this can be done, is that these acts violate the provisions of the State and Federal constitutions against impairing the obligations of contracts. That is to say, at the time the complainant’s debt was created the law gave him a remedy against the city, not only to obtain judgment, but to compel the levy and collection of taxes to pay it. To change the corporate government and create new agencies without this power of taxation, is to deprive the creditor of a remedy he had before, and therefore impairs the obligation of the contract.
Suppose this proposition be conceded — what is the result? Does it result that the authorities of the Taxing District have the power of taxation that has been denied them ? It seems to me clearly not. The clauses of the Constitution operate as restrictions upon legislative power, and when an act violates the restriction the court can declare it void; but this leaves the law' as it stood before — the void act cannot become an affirmative one. The courts cannot say that the Legislature ought, in obedience to this constitutional restriction, to have granted the taxing power to the new government, and therefore we will hold that they did grant the power. I think it would be more logical to hold, on this theory, that the taxing powbr in favor of the creditor remained where it existed before, that is, in the authorities under the old *754■city government. If it could not, as against the creditor, be taken from them, the act which attempted to do so was void; but we cannot obviate the void act by putting into the new act the provision that ought to have been there. In other words, we cannot- say that the Legislature has no right to take from a creditor an existing remedy without providing a new one, and therefore 'we will hold that the Legislature did provide the new remedy, and the very remedy which it in terms refused to provide.
It seems to me that the only escape from this ¡conclusion is to assume that the “taxing district of >" Memphis ” is in reality the same corporation as the “city of Memphis,” that the name merely has been changed, and that therefore the question is precisely as if, without repealing the old city charter, the Legislature had attempted simply to repeal the power of taxation previously existing under the old city government for the purpose of paying its debts. If this had been done, I concede that the repealing act would be void, as impairing the obligation of contracts, in that it deprived the creditor of the remedy existing at the time his debt was created without providing any other remedy, and therefore, notwithstanding the repeal, the right to levy and collect the tax would still exist in the city authorities, and the creditor would be entitled to the process of mandamus to compel a levy and collection of the tax. It was so held in the case of Van Hoffman v. The City of Quincy, 4 Wall., and in the recent case of the U. S. ex rel. Wolf v. City of New Orleans.
*755But I tbink it would be purely arbitrary to assume that the old and the new government of the city are the same corporations with respect to the question we are considering. As we have seen, the old city charter is repealed by one act, the new gov-| eminent is organized under a wholly separate and dis-1 tinct act, and one which is general in its nature and” under which any other city in the State with a given population may be organized, and by which the entire system is changed and new agencies created with wholly different powers and duties. And the question is not whether the repealing act, taking from the old’ city authorities their power of taxation and thereby depriving the creditor of his remedy, is unconstitutional •and void, but it is whether the subsequent act authorizing the organization of “taxing districts/’ and under which the city of Memphis was reorganized, is unconstitutional in that. part which withholds from the ■governing agencies thereby created the power of taxation. And even concede this to be a violation of the Constitution, is it one that the courts can remedy?. Can we put into the act the provision that ought to have been there? If the Legislature pass an unconstitutional act, we may declare it void and leave the law as it stood • before; but if the Legislature fail to pass a law, or to insert in' an act a provision which the Constitution requires, the courts cannot supply the -omission. If the legislative branch of the government should disregard its constitutional obligations and refuse to levy the necessary taxes to pay the public debts and meet the current expenses, there would be *756no remedy in the courts. So that, in my opinion, whatever view we may take of the act repealing the charter of Memphis as affecting the rights of creditors, we cannot cure the wrong by inserting in the subsequent act the provision which we might suppose ought to have been inserted. We cannot compel either the “board of fire and police commissioners,” the “legislative council,” the board of health, or board of public works, or any or all of these agencies of the Taxing District, to levy a tax. It seems to me it would be difficult to determine which one of these agencies shall perform the duty. However, if we assume legislative functions there will be no difficulty.
I am conscious of the force of the argument against-repudiation, and I also concede that to follow the apparently logical sequence of what I have said, and proceed against the old city of Memphis as if the charter had not been repealed, might now be impractical. No one of its officers probably could now be found upon whom the process of mandamus could be made effectual, and the process of the court would be baffled and come to naught. This was the attitude in which the courts found themselves in the case of Rees v. City of Watertown, 19 Wall., where, as often as the process of mandamus was sued out against each successive board of the city authorities they resigned and refused to act, and the' courts were powerless.
While all this is true, it is no reason for the court to attempt to furnish to the creditor a remedy not provided by law.
It is, therefore, in my opinion, not necessary to *757enter further into the question as to how far the constitutional rights of creditors have been impaired by the legislation in question. The Legislature has assumed that financial bankruptcy and ruin had overtaken the city of Memphis. It therefore repealed its charter, took charge of its uncollected tases, and assumed its debts. Whether the remedy provided, or to be provided, for the creditors will be sufficient, or whether the purpose was to repudiate the debts, we cannot know, but the latter purpose cannot be presumed. Debts 'of this character are in a sense public debts, and rest for their payment in some, sense upon the public faith and honor.
For these reasons I dissent from the opinion of the majority of the court.