The other patent to be mentioned is another French one, to Letang. He also states, as means to prevent clogging, the removal of the outlet opening sufficiently far from the point of ignition and the cooling of the burner by a current of air. This current was produced by separate plates above the gas nozzle so arranged that a certain quantity of air would be carried along by the gas. It would seem from the diagram that the distance intended to exist between the nozzle and the flame was very short. We do not dwell upon the earlier patents in more detail, because we believe that we have said enough to show that the plaintiffs' cannot be sustained.

Decrees affirmed.

MR. JUSTICE MCKENNA dissents.

LOUISIANA ex rel. HUBERT, RECEIVER, v. MAYOR AND COUNCIL OF THE CITY OF NEW ORLEANS.

ERROR TO THE SUPREME COURT OF THE STATE OF LOUISIANA.

No. 11. Argued November 1, 2, 1909.-Decided November 29, 1909.

This court has not jurisdiction to review the judgment of a state court based on the contract clause of the Constitution unless the alleged impairment was by subsequent legislation which has been upheld or given effect by the judgment sought to be reviewed. Bacon v. Texas, 163 U. S. 207.

A power to tax to fulfill contract obligations continues until the obligation is discharged.

The power of taxation conferred by law enters into the obligation of a contract, and subsequent legislation withdrawing or lessening such power and which leaves the creditors without adequate means of satisfaction impairs the obligation of their contracts.

Where a municipality has power to contract and tax to meet the obligation, the proper remedy of the creditor is by mandamus to the authorities of the municipality either to pay over taxes already collected for their debt or to levy and collect therefor.

The legislature of a State cannot take away rights created by former legislation for the security of debts owing by a municipality of the State or postpone indefinitely the payment of lawful claims until such time as the municipality is ready to pay them.

Act of November 5, of 1870 of State of Louisiana providing for registration and collection of judgments against the city of New Orleans so far as it delays the payment, or collection of taxes for the payment, of contract claims existing before the passage of the act is void as impairing the obligation of contracts within the meaning of the Federal Constitution.

119 Louisiana 623, reversed.

THE facts are stated in the opinion.

Mr. Charles Louque, and Mr. J. D. Rouse, with whom Mr. William Grant were on the brief, for plaintiff in error.

Mr. Frank B. Thomas for defendants in error.

MR. JUSTICE DAY delivered the opinion of the court.

This case presents the question of the right of the relator, as receiver of the Board of Metropolitan Police of the Metropolitan Police District, consisting of the parishes of Orleans, Jefferson and St. Bernard and including the city of New Orleans, in the State of Louisiana, to compel an assessment, by mandamus, of taxes to pay a certain judgment recovered by the relator in his capacity as receiver, against the city of New Orleans, in the sum of $123,475.57, with interest from April 4, 1904.

On September 14, 1868, the general assembly of the State of Louisiana passed an act establishing a Metropolitan Police District, constituting the same of the parishes of Orleans, Jefferson and St. Bernard (including the city of New Orleans). Section 29 of that act provides:

"SEC. 29. Be it further enacted, etc., That the common councils of the cities of New Orleans, Jefferson City and Carrollton, and the police juries of the towns of Algiers and Gretna, and of the parishes of Orleans, Jefferson and St. Ber

nard are hereby respectively empowered and directed annually to order and caused to be raised and collected by the tax upon the estates, real and personal, subject to taxation according to law, within the said cities and towns, the sums of money as aforesaid, annually estimated and apportioned as the share of such cities or parishes of the said total expenses of the Metropolitan Police District."

This act was supplemented by various statutes, and its provisions were in force until March 31, 1877, when it and various other acts relating to the Metropolitan Police District were repealed, and the city of New Orleans was authorized and empowered, through the mayor and board of administrators, to establish, organize and maintain a proper and sufficient police force.

On January 22, 1900, Louis A. Hubert was duly qualified as receiver of the Board of Metropolitan Police. On April 6, 1904, Hubert, as such receiver, began an action in the Civil District Court of the parish of Orleans, in which he averred that the city was indebted to him, as such receiver, in the sum of $411,884.89, with interest from April 3, 1880, and averred that, for various years, from 1869 to 1877 inclusive, the city of New Orleans had received and collected taxes for the maintenance of the Board of Metropolitan Police and the payment of its expenses, which amounts, although collected by the city, were never paid over to the Board of Metropolitan Police or its representatives. The petition averred that the Board of Metropolitan Police owed large amounts of money; that the whole of the indebtedness thus due from the city was necessary to pay the same. Upon issue made and trial had a judgment was rendered in favor of the receiver on May 18, 1905. The record of this judgment was made part of the record herein, and it appears therein that the Civil District Court took an account of the taxes collected for the years 1869 to 1877 inclusive, and not paid over for account of the Board of Metropolitan Police, and found the same to be the sum of $136,082.62, for which judgment was rendered

against the city of New Orleans. This judgment was modified by the Supreme Court of Louisiana on March 12, 1906, and affirmed after deducting the sum of $12,607.05, leaving a judgment in force for $123,475.57, with interest. Hubert v. City of New Orleans, 116 Louisiana, 507.

On April 23, 1906, a petition for mandamus was filed, in the present case, in the Civil District Court for the parish of Orleans. In that case the relator set up the recovery of the judgment in the state court; that under Act No. 5 of 1870 (to be noticed hereafter) no writ of fieri facias could be issued; that the city had no money or property liable to seizure, if such a writ could be issued; that the judgment had been registered under said act in the office of the city comptroller on March 26, 1906; that the basis upon which the said judgment was rendered was a contractual and statutory obligation imposed upon the city of New Orleans to levy, collect and pay to the Board of Metropolitan Police the sums apportioned to it under the act of 1868 creating the board and the acts amendatory thereto. The petition averred that the maximum rate of taxation for the years 1869-1877 inclusive had not been levied, and prayed a writ of mandamus requiring the city of New Orleans, through its mayor and council, to levy and pay over to the relator as receiver a tax of one mill on property within the city of New Orleans, or so much thereof as might be necessary to satisfy the judgment. The city appeared and answered, and claimed the benefit of Act No. 5 of the extra session of 1870, and that under § 29 of the act of 1868, above set forth, the city had levied the tax apportioned to the Board of Metropolitan Police, and that the city's power of taxation in the premises had been fully exercised and exhausted.

On November 12, 1906, the Civil District Court rendered a judgment dismissing the relator's petition for mandamus. Upon appeal the Supreme Court of Louisiana affirmed this judgment. State v. Mayor &c. of New Orleans, 119 Louisiana, 623. The present writ of error brings this judgment here for review.

In the opinion of the Supreme Court of Louisiana it appears that the basis of the judgment upon which the relator sued was held not to be contractual in its nature, and, further, that the State, having abolished the Metropolitan Police Board, the only standing of the relator for the purposes of this suit was as the representative of third persons who may have made contracts with the board which were dependent upon taxes receivable from the city for their fulfillment. The learned court then pointed out an apparent inconsistency between the petition for mandamus in this case and the petition on which the original judgment was awarded, and said, on p. 630:

"In the brief presented on behalf of relator, for the purposes of the present application, his counsel say: 'This is not a proceeding to compel the city of New Orleans to levy a special police tax. The city has actually levied and collected the tax. The tax levy having been made, in compliance with the statute, and having been collected by the city, gave rise to a cause of action in favor of the receiver to enforce its payment to the Board of Metropolitan Police. This cause of action, therefore, could not have arisen until the city had levied and collected the tax and refused to pay over the proceeds.'

"Assuming that the position that the relator now wishes to occupy is correctly stated in the foregoing excerpt, we take it to be conceded that the city has levied and collected all the taxes authorized or required by the metropolitan police legislation; and, further assuming that the relator represents the holders of the indebtedness (of the police board) referred to in the petition upon which he obtained his judgment (though it is not so alleged in the application now being considered), the question still remains: Does he disclose and make out a case which entitles him to a writ of mandamus to compel the city to levy and collect an additional tax in order to make good its failure to pay over the tax already levied and collected?"

The court, therefore, treated the petition for mandamus