Jon Roland reminds us of a 1911 US Supreme Court opinion
Hopkins v. Clemson Agricultural College, 221 U.S. 636 (1911)
Page 221 U. S. 643Public agents must be liable to the law unless they are to be put above the law. For how
"can these principles of individual liberty and right be maintained if, when violated, the judicial tribunals are forbidden to visit penalties upon individual offenders . . . whenever they interpose the shield of the state? . . . The whole frame and scheme of the political institutions of this country, state and federal, protest"
against extending to any agent the sovereign's exemption from legal process. Poindexter v. Greenhow, 114 U. S. 270, 114 U. S. 291 (regarding the right to pay state and local taxes with mature state bond coupons, under prior state law and the bond's contract).
See opinion text below.
Regarding the latter case, the court opined:
"law made it the duty of the defendant [government] to receive the coupons tendered in payment of taxes, and declared every step to enforce the tax thereafter taken to be without warrant of law, and therefore a wrong. This strips the defendant of his official character, and convicts him of a personal violation of the plaintiff's rights, for which he must personally answer."Thus, refusal of a government tax collector to accept a lawful tender of payment for the tax exonerates the payor from any further obligation for that tax, and the tax collector bears the brunt of responsibility for refusal to accept the payment, as well as for injuring the payor by any enforcement action. The Chief Justice wrote:
"The case, then, of the plaintiff below is reduced to this: he had paid the taxes demanded of him by a lawful tender. The defendant had no authority of law thereafter to attempt to enforce other payment by seizing his property. In doing so, he ceased to be an officer of the law and became a private wrongdoer. It is the simple case in which the defendant, a natural private person, has unlawfully, with force and arms, seized, Page 114 U. S. 283 taken, and detained the personal property of another."
You see, a Gerp (Government Perpetrator of crime) ALWAYS operates by force of arms. As to the culpability of the Gerp for abusive behavior the court opine
"Corporate agents or individual officers of the state stand in no better position than officers of the general government, and as to them it has often been held that
"the exemption of the United States from judicial process does not protect their officers and agents, civil or military, in time of peace, from being personally liable to an action of tort by a private person whose rights of property they have wrongfully invaded or injured, even by authority of the United States."
Belknap v. Schild, 161 U. S. 18.
"Undoubtedly counties, cities, townships, and similar bodies politic often have a defense which relieves them from responsibility where a private corporation would be liable. But they must at least make that defense. They Page 221 U. S. 646 cannot rely on freedom from accountability, as could a state."
What to Do about Gerps
Perhaps you recall my comments about "Gerps," government perpetrators of crime, goverment employees who commit crimes against others under color of law. In other words, ULTRA VIRES ("beyond the powers" granted by the constitutions and laws pursuant thereto) behavior removes a Gerp's sovereign immunity. Clearly, the Constitutions grant Gerps NO IMMUNITY for crimes and torts associated with ultra vires behavior. If they presume to cloak themselves in the mantle of immunity, the citizenry must demand, insist, and use any necessary pressure, even physical force, to strip away such a cloak, and expose and bring the Gerp to appropriate consequences.
As to those consequences, the law may suggest many, IF you can get the Gerp's fellows in government to accept and process criminal and civil complaints against the Gerp, then try the Gerp and convict or award damages against the Gerp for the crime(s), and order the Gerp out of government service. If you cannot, you must either suffer the abuse or risk your own safety by taking personal or group action to stop the Gerp's crimes or excise the Gerp from government by some other means, at your choosing.
I see some but not most Gerps as rehabilible. The people should not risk further subornation of the Gerps through greed, coercion, or bribery. I value the heads-on-pikes principle when it comes to Gerps. The Gerp should never get away with the crimes. We could argue whether noisier, messier, more horrific, public treatment, or some form of gracious rehabilitation would deter further gerpitude. But some vivid, meaningful retribution seems mandatory to stem the tsunami of government crime the people now suffer.
Bottom line,
DO NOT TOLERATE GOVERNMENT CRIME.
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HOPKINS V. CLEMSON AGRICULTURAL COLLEGE, 221 U. S. 636 (1911)
U.S. Supreme Court
Hopkins v. Clemson Agricultural College, 221 U.S. 636 (1911)
Hopkins v. Clemson Agricultural College of South Carolina
No. 70
Submitted December 7, 1910
Ordered for reargument January 30, 1911
Resubmitted March 15, 1911
Decided May 29, 1911
221 U.S. 636
ERROR TO THE SUPREME COURT
OF THE STATE OF SOUTH CAROLINA
Syllabus
With the exception named in the Constitution, every state has absolute immunity from suit, and the Eleventh Amendment applies not only where the state is actually named as a party but where the suit is really against it, although nominally against one of its officers.
Immunity from suit is a high attribute of sovereignty and a prerogative of the state itself which cannot be availed of by public agents when sued for their own torts.
Neither a state nor an individual can confer upon an agent authority to commit a tort so as to excuse the perpetrator; in such a case, the law of agency has no application, and the individual is liable to suit and injunction.
While the state, as a sovereign, is not subject to suit, cannot be enjoined, and the state's officers cannot be restrained from enforcing the state's laws or held liable for consequences of obedience thereto, a void law is neither a law or command, but a nullity, conferring no authority and affording no protection or immunity from suit.
Neither public corporations nor political subdivisions are clothed with the immunity from suit which belongs to the state alone, and while they may be relieved from responsibility to a wider degree than individuals would be, they must make the defense, and cannot rely on immunity.
In this case, held that an agricultural college corporation was not such an agent of the state as to be immune under the Eleventh Amendment from suit for damages caused by erection of a dyke and consequent overflow of plaintiff's property; but also heldthat, as the dyke was on property belonging to the state, the state would be a necessary party to the suit in order to decree removal, and, in the absence of consent to be sued, the court had no jurisdiction to decree removal.
Although parties erecting a dyke on property belonging to the state
may not, under the Eleventh Amendment, be immune from suit, the state is a necessary party to a suit to remove the dyke, and it is beyond the jurisdiction of the court to make a decree to that effect.
Where a suit is for damages caused by erection of a dyke and for removal of the dyke, the prayer for removal can be stricken out without depriving the court of jurisdiction to hear and determine the prayer for damages.
77 S.C. 12 reversed.
In his complaint, the plaintiff alleged that he owned a valuable body of fertile bottom lands, on he west side of Seneca River, on which he had raised large crops from the time of purchasing the farm in 1880 until 1895, when the defendant, by its trustees, erected and maintained a high embankment on the eastern side of the river. This dyke was to protect the lands of the college from overflow, but its construction so narrowed the channel of the river that it caused the rapid current of the stream in time of high water to flow across the lands of plaintiff, whereby the natural bank had been destroyed, the rich soil had been washed away, and his property practically ruined for agricultural purposes, and "during the period aforesaid, said injury has been and still is continuous from day to day and year to year." He prayed for judgment for $8,000; that the defendant be required to abate and remove the dyke and restore the condition prevailing prior to its construction, and for general relief.
The defendant denied all the allegations of the complaint, and alleged that the college had no title to the land, or any other property in connection with the establishment and maintenance of the institution; that the construction of the dyke was authorized by the state, and had been built by the college, as a public agent, on land the title and possession of which was in the state. It therefore prayed that the complaint be dismissed.
By stipulation, the case was heard solely on the question of jurisdiction. Evidence was introduced showing that,
by his will, probated April 20, 1888, Thomas G. Clemson left personal property and the "Fort Hill" place, consisting of 814 acres, providing that, whenever the State of South Carolina should accept the property for the purpose of founding an agricultural college, his executor should convey it to the state, to be held so long as it in good faith devoted the property to the purposes of the donation, such college to be governed by a board of trustees, which should never be increased to more than thirteen. Seven trustees named by the testator, and their successors, were to have the right to fill vacancies in their number, but the legislature might elect six other trustees.
On November 27, 1889, the state accepted the Clemson bequest, subject to the terms set forth in the will and enacted that, upon the transfer of the property to the state by the executor, a college should be established in connection with the devise, to be styled the Clemson Agricultural College of South Carolina, to be situated at Fort Hill, on the plantation so devised, in which should be taught all branches of study relating to agriculture, the college to be under the management of a board of thirteen trustees, composed of the seven nominated by the will, and their successors, and six members elected by the legislature.
Sec. 4 of the charter provided:
"That the said board of trustees is hereby declared to be a body politic and corporate, under the name and style of the Clemson Agricultural College of South Carolina. They shall have a corporate seal, which they may change at their discretion, and in their corporate name they may contract for, purchase, and hold property, for the purpose of this act, and may take any property or money conveyed by deed, devise, or bequest to said college, and may hold the same for his use and benefit; Provided that the conditions of such gift or conveyance shall in no case be inconsistent with the purposes of this act,
and shall incur no obligation on the part of the state. They shall securely invest all funds and keep all property which may come into their possession, and may sell any of the personal property not subject to trust, and reinvest the same in such way as they may deem best for the interest of said college. They may sue and be sued, plead and be impleaded, in their corporate name, and may do all things necessary to carry out the provisions of this act, and may make bylaws for this purpose if they deem it necessary."
By the Act of January 4, 1894, it was declared that fifty convicts might be employed by the trustees of Clemson College in dyking Seneca River, adjoining the college farm, and such other work as the trustees deem useful, for twelve months.
In April, 1894, a resolution was passed by the board of trustees concerning the work of "building the dykes necessary to protect the bottom lands of Clemson College." It does not appear when this work began or was finished, but various extracts from the minutes or the trustees, from April, 1894, to July, 1905, were introduced in evidence from which it appeared that the dyke was constructed according to plans and specifications approved by the board, under the direction of engineers selected by the board, and that payments were made by it on account of work thereon. The embankment was either wholly or partially washed away, and, in 1903, a resolution was adopted by the board
"to have a survey made of the dyke for the purpose of submitting estimates of the work necessary to be done to afford protection to the bottom lands on the college property, the cost of the estimate to be based on the recent flood."
Evidence was introduced as to the property owned by the college and the sources of its income, from which it appeared that a tract of land, partially paid for by the state, had been conveyed to the college in fee simple, and
other land had been conveyed for college purposes. The state appropriated more than $100,000 per annum, which, with the interest on the securities passing under the residuary clause of Dr. Clemson's will, constituted the main source of income, though the college did receive about $6,500 per annum from tuition, rent, sale of dairy products, and the proceeds derived from the electric plant and textile department.
There is copied in the record the act of 1894 to incorporate Clemson College for the purpose of police regulation over the territory within five miles of the college building.
The trial court found that the current expenses were paid out of interest on the donation and from the annual appropriations by the state; that the college had no property which could be sold under execution, and that title to the land on which the dyke was erected was in the state. Referring also to the act of 1894, conferring municipal powers on Clemson College, the court held that the defendant was a public agent which could not be sued without the consent of the state; that such consent was not given by the provision of the charter that the trustees "might sue and be sued, plead and be impleaded, in their corporate capacity," inasmuch as that related to contracts made for college purposes, and did not warrant suits against a public agent for a tort. Holding that the state was an indispensable party, and had not given its consent to be sued, the court dismissed the complaint.
On the appeal, the plaintiff, in his assignments of error, contended that the title to the land was in the state only as trustee; that the college was not a public corporation, but a private educational institution, without governmental powers; that it had not been established or endowed by the state, and was not governed by the state, or solely by trustees appointed by the state (Dartmouth College v. Woodward, 4 Wheat. 634); that, in addition to the equitable ownership of the Fort
Hill place, it owned certain lands in fee simple which were subject to levy and sale, and that the corporation was liable for its own torts.
The twenty-third assignment of error was as follows:
"Because the Fourteenth Amendment to the Constitution of the United States provides: 'Nor shall any state deprive any person of life, liberty, or property without due process of law.' The allegations of the complaint show that plaintiff has been deprived of his property for all practical purposes as agricultural lands as effectually as if there had been a physical taking thereof; that plaintiff has thus been deprived of his property by the defendant corporation, acting by and through its board of trustees, and this constitutional guaranty has been violated by such action, whether taken pursuant to an act of the legislature of otherwise, and his Honor erred in not so holding."
The supreme court of the state adopted the opinion of the trial judge, and, on the ground that the state was a necessary party and had not consented to be sued, dismissed the bill of complaint. 77 S.C. 12. Thereupon the plaintiff sued out a writ of error to this Court.
MR. JUSTICE LAMAR, after making the foregoing statement, delivered the opinion of the Court.
The plaintiff sued the Clemson Agricultural College of South Carolina, for damages to his farm, resulting from the college having built a dyke which forced the waters of the Seneca River across his land, whereby the soil had
been washed away and the land ruined for agricultural purposes. There was no demurrer, but the defendant filed what was treated as a plea to the jurisdiction, in which it averred that it owned no property, and had constructed the dyke as a public agent only, by authority of the state, on land belonging to the state. By stipulation, the hearing was confined solely to the question of jurisdiction, and after considering the evidence, the complaint was dismissed.
That ruling and the assignments of error thereon raise the question as to whether a public corporation can avail itself of the state's immunity from suit in a proceeding against it for so managing the land of the state as to damage or take private property without due process of law.
With the exception named in the Constitution, every state has absolute immunity from suit. Without its consent, it cannot be sued in any court, by any person, for any cause of action whatever. And, looking through form to substance, the Eleventh Amendment has been held to apply not only where the state is actually named as a party defendant on the record, but where the proceeding, though nominally against an officer, is really against the state, or is one to which it is an indispensable party. No suit, therefore, can be maintained against a public officer which seeks to compel him to exercise the state's power of taxation, or to pay out its money in his possession on the state's obligations, or to execute a contract, or to do any affirmative act which affects the state's political or property rights. Cunningham v. Macon & Brunswick R. Co., 109 U. S. 446; North Carolina v. Temple, 134 U. S. 22; Louisiana v. Steele, 134 U. S. 230; Louisiana v. Junel, 107 U. S. 711; Pennoyer v. McConnaughy, 140 U. S. 1; In re Ayers, 123 U. S. 443; Hans v. Louisiana, 134 U. S. 1; Harkrader v. Wadley, 172 U. S. 148; Hagood v. Southern, 117 U. S. 52.
But immunity from suit is a high attribute of sovereignty --
a prerogative of the state itself -- which cannot be availed of by public agents when sued for their own torts. The Eleventh Amendment was not intended to afford them freedom from liability in any case where, under color of their office, they have injured one of the state's citizens. To grant them such immunity would be to create a privileged class, free from liability for wrongs inflicted or injuries threatened. Public agents must be liable to the law unless they are to be put above the law. For how
"can these principles of individual liberty and right be maintained if, when violated, the judicial tribunals are forbidden to visit penalties upon individual offenders . . . whenever they interpose the shield of the state? . . . The whole frame and scheme of the political institutions of this country, state and federal protest"
against extending to any agent the sovereign's exemption from legal process.Poindexter v. Greenhow, 114 U. S. 270, 114 U. S. 291.
The many claims of immunity from suit have therefore been uniformly denied where the action was brought for injuries done or threatened by public officers. If they were indeed agents, acting for the state, they -- though not exempt from suit -- could successfully defend by exhibiting the valid power of attorney or lawful authority under which they acted. Cunningham v. Macon & Brunswick R. Co., 109 U. S. 446, 109 U. S. 452. But if it appeared that they proceeded under an unconstitutional statute, their justification failed, and their claim of immunity disappeared on the production of the void statute. Besides, neither a state nor an individual can confer upon an agent authority to commit a tort so as to excuse the perpetrator. In such cases, the law of agency has no application -- the wrongdoer is treated as a principal, and individually liable for the damages inflicted, and subject to injunction against the commission of acts causing irreparable injury.
Consequently there have been recoveries in ejectment
where the public agent in possession defended under a void title of the government.United States v. Lee, 106 U. S. 196; Tindal v. Wesley, 167 U. S. 204. A suit against a bank was sustained even though the state held part of the stock. Bank of United States v. Planters' Bank, 9 Wheat. 904. A tax collector was enjoined, where, under an unconstitutional law, he was about to sell the property of the taxpayer. Poindexter v. Greenhow, 114 U. S. 270. An attorney general was restrained from suing to recover penalties imposed by an unconstitutional statute. Ex Parte Young, 209 U. S. 123. Commissions have been enjoined from enforcing confiscatory rates. Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362; Smyth v. Ames, 169 U. S. 466; Prout v. Starr, 188 U. S. 537. A state land commissioner was enjoined from proceeding, under an unconstitutional act, to cause irreparable damage to defendant's property rights.Pennoyer v. McConnaughy, 140 U. S. 1. Commissions have been restrained from enforcing a statute which illegally burdened interstate commerce. McNeill v. Southern Ry., 202 U. S. 543; Railway Commission v. Illinois Central R. Co., 203 U. S. 335.
Other cases might be cited which deny public boards, agents, and officers immunity from suit. But the principle underlying the decisions is the same. All recognize that the state, as a sovereign, is not subject to suit, that the state cannot be enjoined, and that the state's officers, when sued, cannot be restrained from enforcing the state's laws or be held liable for the consequences flowing from obedience to the state's command.
But a void act is neither a law nor a command. It is a nullity. It confers no authority. It affords no protection. Whoever seeks to enforce unconstitutional statutes, or to justify under them, or to obtain immunity through them, fails in his defense and in his claim of exemption from suit.
Is is said, however, that in the cases referred to, the officers
were held liable to suit because, in the transaction complained of, the statute being unconstitutional, they could not be treated as agents of the state. And it is argued that these authorities have no application to suits against those public corporations which exist, and can act, in no other capacity than as governmental agencies, or political subdivisions of the state itself. But neither public corporations nor political subdivisions are clothed with that immunity from suit which belongs to the state alone by virtue of its sovereignty. In Lincoln County v. Luning, 133 U. S. 529, the Court said that,
"while the county is territorially a part of the state, yet politically it is also a corporation, created by and with such powers as are given to it by the state. In this respect, it is a part of the state only in that remote sense in which any city, town, or other municipal corporation may be said to be a part."
The court there held that the Eleventh Amendment was limited to those cases in which the state is the real party, or party on the record, but that counties were corporations which might be sued. Dunn v. University of Oregon, 9 Or. 357, 362; Herr v. Central Kentucky Lunatic Asylum, 98 Ky. 463.
Corporate agents or individual officers of the state stand in no better position than officers of the general government, and as to them it has often been held that
"the exemption of the United States from judicial process does not protect their officers and agents, civil or military, in time of peace, from being personally liable to an action of tort by a private person whose rights of property they have wrongfully invaded or injured, even by authority of the United States."
Belknap v. Schild, 161 U. S. 18.
Undoubtedly counties, cities, townships, and similar bodies politic often have a defense which relieves them from responsibility where a private corporation would be liable. But they must at least make that defense. They
cannot rely on freedom from accountability, as could a state.
in this case, there is no question of corporate existence and no claim that building the dyke was ultra vires. Plaintiff was denied a hearing not on the ground that his complaint did not set out a cause of action, but solely for the reason that, even if the college did destroy his farm, the court had no jurisdiction over a public agent.
If the state had in so many words granted the college authority to take or damage the plaintiff's property for its corporate advantage without compensation, the Constitution would have substituted liability for the attempted exemption. But the State of South Carolina passed no such act, and attempted to grant no such immunity from suit as is claimed by the college. On the contrary, the statute created an entity, a corporation, a juristic person, whose right to hold and use property was coupled with the provision that it might sue and be sued, plead and be impleaded, in its corporate name.
Reference is made, however, to Kansas ex Rel. Little v. University of Kansas, and the note in 29 L.R.A. 378, where state colleges, prison boards, lunatic asylums, and other public institutions have been held to be agents of the state, not liable to suit unless expressly made so by statute.
But an examination of the cases cited, in any respect similar to this will show that they involve questions of liability in a suit, rather than immunity from suit. Most of them were actions for torts committed not by the public corporation itself, but by officers of the law. These public corporations were held free from liability in the suit on the same ground that municipalities are held not to be responsible for the negligence of policemen, jailers, prison guards, firemen, and other agents performing governmental duties. Workman v. New York, 179 U. S. 556. That general rule is of force in South Carolina, as
appears from Gibbes v. Beaufort, 20 S.C. 218, cited in the opinion of the court below, where it was said that
"a municipal corporation, instituted for the purpose of assisting the state in the conduct of local civil government, is not liable to be sued in an action of tort for nonfeasance or misfeasance of its officers in regard to their public duties, unless expressly made so liable by statute."
But the plaintiff is not seeking here to hold the college liable for the nonfeasance or misfeasance either of its own officers or officers of the public. This is a suit against the college itself for its own corporate act in building a dyke, whereby the channel had been narrowed, the swift current had been diverted from the usual course across the plaintiff's farm, and, as it is alleged, destroying the banks, washing away the soil, and for all practical purposes as effectually depriving him of his property as if there had been a physical taking. Compare Lewis on Eminent Domain, 2d ed., § 67; Pumpelly v. Green Bay Co., 13 Wall. 166; United States v. Lynah, 188 U. S. 445; United States v. Welch, 217 U. S. 333; Chicago &c. v. Chicago, 166 U. S. 226; Farnham on Waters, § 191; Conniff v. San Francisco, 67 Cal. 45.
Again, and still treating the question as though involved in the plea to the jurisdiction, that is not an action against the college for a tort committed in the prosecution of any governmental function. The fee was in the state, but the corporation, as equitable owner, was in the possession, use, and enjoyment of the property. For protecting the bottom land, the college, for its own corporate purposes and advantages, constructed the dyke. In so doing, it was not acting in any governmental capacity. The embankment was in law similar to one which might have been built for private purposes by the plaintiff on the other side of the river. If he had there constructed a dyke to protect his farm, and in so doing had taken or damaged the land of the college, he could have been sued
and held liable. In the same way, and on similar principles of justice and legal liability, the college is responsible to him if, for its own benefit, and for protecting land which the held and used, it built a dyke which resulted in taking or damaging the plaintiff's farm. 2 Dillon, M.Corp. (4th ed.) § 966, p. 1180.
As a part of its plea to the jurisdiction, the college also claimed that
"it never had any interest or title in the land described in the complaint, or in any other property connected with the establishment and maintenance of Clemson Agricultural College of South Carolina, all of it being the property of the State of South Carolina."
And it is argued that the court could take no jurisdiction of a case against a public corporation which at most, could only result in a judgment unenforceable by levy and sale under execution.
As a matter of fact, the record indicates that, besides the state's annual appropriation and the interest on securities held under the residuary clause of Dr. Clemson's will, the college has other sources of income. It appears to own some land in fee simple. The charter authorizes it to receive bequests. So that, if the Fort Hill place is not subject to levy and sale, it does not follow that the institution may not now or hereafter own property out of which a judgment in plaintiff's favor could be satisfied. Besides, we have no right to proceed on the theory that, if at the end of the litigation, plaintiff establishes his right to damages, the judgment would not be paid. These suggestions, though made in a plea to the jurisdiction, afford no reason why the college should be granted immunity from suit when it is claimed that, in violation of the Constitution, it has taken private property for its corporate purposes without compensation.
The plaintiff prayed not only for damages, but that the embankment should be removed. The title to the land and everything annexed to the soil is in the state, subject
to the conditions named in the will. The state therefore may be a necessary party to any proceeding which seeks to affect the land itself, or to remove any structure thereon which has become a part of the land. If so, and unless it consents to be sued, the court cannot decree the removal of the embankment which forms a part of the state's property. Cunningham v. Macon & Brunswick R. Co., 109 U. S. 446. But the prayer for that part of the relief can be stricken out without depriving the court of jurisdiction to hear and determine the question whether Clemson Agricultural College of South Carolina is liable to the plaintiff for its own corporate act in building for its own proprietary and corporate purposes a dyke which it is alleged damaged or took the plaintiff's farm. Columbia Waterpower Company v. Electric Co., 43 S.C. 155 (1), 167, 169. And, if the facts hereafter warrant it, the college may be enjoined against further acts looking to the maintenance or reconstruction of the dyke. The judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed.
MR. JUSTICE HARLAN dissents.
-----------------------------------------------------
POINDEXTER V. GREENHOW, 114 U. S. 270 (1885)
U.S. Supreme Court
Poindexter v. Greenhow, 114 U.S. 270 (1885)
Poindexter v. Greenhow
Argued March 20, 23-25
Decided April 20, 1885
114 U.S. 270
I
N ERROR TO THE HUSTINGS COURT OF THECITY OF RICHMOND, STATE OF VIRGINIA
Syllabus
In an action of detinue for personal property distrained by the defendant for delinquent taxes in payment of which the plaintiff had duly tendered coupons cut from bonds issued by the State of Virginia under the Funding Act of March 30, 1871,
Held:
1. That, by the terms of that act and the issue of bonds and coupons in virtue of the same, a contract was made between every coupon holder and the state that such coupons should "be receivable at and after maturity for all taxes, debts, dues, and demands due the state," the right of the coupon holder under which was to have his coupons received for taxes when offered, and that any act of the state which forbids the receipt of these coupons for taxes is a violation of the contract, and void as against coupon holders.
2. The faculty of being receivable in payment of taxes was of the essence of the right. It constituted a self-executing remedy in the hands of a taxpayer, and it became thereby the legal duty of every tax collector to receive such coupons in payment of taxes upon an equal footing and with equal effect, as though they were money; after a tender of such coupons duly made for that purpose, the situation and rights of the taxpayer and coupon holder were precisely what they would have been if he had made a like tender in money.
3. It is well settled by many decisions of this Court that, for the purpose of affecting proceedings to enforce the payment of taxes, a lawful tender of payment is equivalent to actual payment, either being sufficient to deprive the collecting officer of all authority for further action, and making every subsequent step illegal and void.
4. The coupons in question are not "bills of credit" in the sense of the Constitution, which forbids the states to "emit bills of credit," because, although issued by the Virginia on its credit and made receivable in payment of taxes, and negotiable so as to pass from hand to hand by delivery merely, they were not intended to circulate as money between individuals and between government and individuals for the ordinary purposes of society.
5. An action or suit brought by a taxpayer, who has duly tendered such coupons in payment of his taxes, against the person who, under color of office as tax collector, and acting in the enforcement of a void law, passed by the legislature of the state, having refused such tender of coupons, proceeds by seizure and sale of the property of the plaintiff, to enforce the collection
of such taxes, is an action or suit against him personally as a wrongdoer, and not against the state, within the meaning of the Eleventh Amendment to the Constitution of the United States.
6. Such a defendant, sued as a wrongdoer, who seeks to substitute the state in his place, or to justify by the authority of the state, or to defend on the ground that the state has adopted his act and exonerated him, cannot rest on the bare assertion of his defense, but is bound to establish it, and, as the state is a political corporate body which can act only through agents and command only by laws in order to complete his defense, he must produce a valid law of the state, which constitutes his commission as its agent, and a warrant for his act.
7. The act of the General Assembly of Virginia of January 26, 1882, "to provide for the more efficient collection of the revenue to support government, maintain the public schools, and to pay interest on the public debt," requiring tax collectors to receive in discharge of the taxes, license taxes, and other dues gold, silver, United States Treasury notes, national bank currency, and nothing else, and thereby forbidding the receipt of coupons issued under the Act of March 30, 1871, in payment therefor, although it is a legislative act of the government of Virginia, is not a law of the Virginia, because it impairs the obligation of its contract, and is annulled by the Constitution of the United States.
8. The state has passed no such law, for it cannot, and what it cannot do, in contemplation of law, it has not done. The Constitution of the United States, and its own contract, both irrepealable by any act on its part, are the law of Virginia, and that law made it the duty o4 the defendant to receive the coupons tendered in payment of taxes, and declared every step to enforce the tax thereafter taken to be without warrant of law, and therefore a wrong. This strips the defendant of his official character, and convicts him of a personal violation of the plaintiff's rights, for which he must personally answer.
9. It is no objection to the remedy in such cases that the statute the application of which in the particular case is sought to be prevented is not void on its face, but is complained of only because its operation in the particular instance works a violation of a constitutional right, for the cases are numerous where the tax laws of a state, which in their general and proper application are perfectly valid, have been held to become void in particular cases either as unconstitutional regulations of commerce, or as violations of contracts prohibited by the Constitution, or because in some other way they operate to deprive the party complaining of a right secured to him by the Constitution of the United States.
10. In cases of detinue, the action is purely defensive on the part of the plaintiff. Its object is merely to resist an attempted wrong and to restore the status in quo as it was when the right to be vindicated was invaded. It is analogous to the preventive remedy of injunction in equity when that jurisdiction is invoked, of which frequent examples occur in cases to prevent the illegal taxation of national banks by state authorities.
11. The suit authorized by the act of the General Assembly of Virginia of January
26, 1882, against the collector of taxes refusing to accept a tender of coupons, to recover back the amount paid under protest, is no remedy at all for the breach of the contract, which required him to receive the coupons in payment. The taxpayer and coupon holder has a right to say he will not pay the amount a second time, and, insisting upon his tender as equivalent to payment, to resist the further exaction and treat as a wrongdoer the officer who seizes his property to enforce it.
12. Neither can it be considered an adequate remedy, in view of the supposed necessity for summary proceedings in matters of revenue and the convenience of the state, which requires that the prompt collection of taxes should not be hindered or embarrassed, for the revenue system must yield to the contract which the state has lawfully made, and the obligation of which, by the Constitution, it is forbidden to impair.
13. The right to pay in coupons cannot be treated as a mere right of setoff, which is part of the remedy merely, when given by the general law, and therefore subject to modification or repeal, because the law which gave it is also a contract, and therefore cannot be changed without mutual consent.
14. The acts of the General Assembly of Virginia of January 28, 1882, and the amendatory Act of March 13, 1884, are unconstitutional and void because they impair the obligation of the contract of the state with the coupon holder under the Act of March 30, 1871, and that being the main object of the two acts, the vice which invalidates them pervades them throughout and in all their provisions. It is not practicable to separate those parts which repeal and abolish the actions of trespass and trespass on the case and other particular forms of action as remedies for the taxpayer who has tendered his coupons in payment of taxes from the main object of the acts which that prohibition was intended to effectuate, and it follows that the whole of these and similar statutes must be declared to be unconstitutional, null and void. It also follows that these statutes cannot be regarded in the courts of the United States as laws of the state, to be obeyed as rules of decision in trials at common law, under § 721 Rev.Stat. nor as regulating the practice of those courts under § 914 Rev.Stat.
16. The present case is not covered by the decision in Antoni v. Greenhow, 107 U. S. 789, the points now involved being expressly reserved in the judgment in that case.
MR. JUSTICE MATTHEWS delivered the opinion of the Court.
The plaintiff in error, who was also plaintiff below, brought his action in detinue on the 26th day of April, 1883, against Samuel C. Greenhow, for the recovery of specific personal property, to-wit, one office desk of the value of $30, before a police justice in the City of Richmond, who dismissed the same for want of Jurisdiction. An appeal was taken by the plaintiff to the Hustings Court for the City of Richmond, where the facts were found by agreement of parties to be as follows:
That the plaintiff was a resident of the City of Richmond, in the State of Virginia; that he owed to the State of Virginia, for taxes on property owned by him in said city for the year 1882, $12.45, which said taxes were due and leviable for, under the laws of Virginia, on the first day of December, 1882; that the defendant, Samuel C. Greenhow, was the Treasurer of the City of Richmond, and as such is charged by law with the duty of collecting taxes due to the State of Virginia by all residents of said city; that on the 25th day of April, 1883, the defendant, as such treasurer and collector of taxes, made upon the plaintiff demand for the payment of the taxes due by him to the state as aforesaid; that the plaintiff, when demand was so made for payment of his taxes, tendered to the defendant in payment thereof forty-five cents in lawful money of the United States, and coupons issued by the State of Virginia under the provisions of the act of the General Assembly of that State of March 30, 1871, entitled "An act to provide for the funding and payment of the public debt;" that said coupons so tendered by plaintiff were all due and past maturity, and amounted in the aggregate to twelve dollars, and were all cut from bonds issued by the said State of Virginia under the provisions of the said Act of March 30, 1871; that the said coupons and money so tendered by the plaintiff amounted together to exactly the sum so due the state by the plaintiff for taxes; that the defendant refused to receive the said coupons and money so tendered in payment of the plaintiff's taxes; that the defendant, after said tender was made, as he deemed himself required to do by the acts of assembly of Virginia, entered the plaintiff's place of business in said city
and levied upon and took possession of the desk, the property of the plaintiff now sued for, for the purpose of selling the same to pay the taxes due from him, and that the said desk is of the value of thirty dollars, and still remains in possession of the defendant for the purpose aforesaid, he having refused to return the same to the plaintiff on demand.
The hustings court was of the opinion that the police justice erred in deciding that he had no jurisdiction, and that the issue in the action might have been tried by him, and that it should be tried by that court on the appeal, but it was also of the opinion that in tendering to the defendant, as part of the tender in payment of the plaintiff's taxes, the coupons mentioned and described, the plaintiff did not tender what the law required, nor what the defendant was, as treasurer, obliged to or should have received in payment of the plaintiff's taxes under the provisions of the Act of the General Assembly of Virginia, approved January 26, 1882, entitled "An act to provide for the more efficient collection of the revenue to support government, maintain the public schools, and to pay interest on the public debt;" that the plaintiff's remedy for the failure of the defendant, as treasurer, to receive coupons in payment of taxes, was to be found in the provisions of said Act of January 26, 1882, and that therefore the defendant does not unlawfully or wrongfully detain the plaintiff's property levied on by the defendant, as treasurer of the City of Richmond, for the plaintiff's taxes, and judgment was accordingly rendered for the defendant.
It appears from the record that there was drawn in question the validity of the said Act of the General Assembly of Virginia approved January 26, 1882, and of the eighteenth section of the act of the General Assembly of the State of Virginia, approved April 1, 1879, which authorizes the collection of delinquent taxes by distraint of personal property, upon the ground that these acts are repugnant to Section 10 of Article I of the Constitution of the United States, which declares that no state shall pass any law impairing the obligation of contracts, the judgment of the court being in favor of the validity of said acts and against the rights claimed by the plaintiff under the
Constitution of the United States. The hustings court is the highest court of the state to which the said cause could be taken.
The Act of January 26, 1882, the validity of which is thus questioned, is as follows:
"Be it enacted by the General Assembly of the State of Virginia that the several tax collectors of this commonwealth shall receive, in discharge of the taxes, license taxes, and other dues, gold, silver, United States Treasury notes, national bank currency, and nothing else, provided that in all cases in which an officer charged by law with the collection of revenue due the state, shall take any steps for the collection of same, claimed to be due from any citizen or taxpayer, such person against whom such step is taken, if he conceives the same to be unjust or illegal or against any statute, or to be unconstitutional, may pay the same under protest, and under such payment the officer collecting the same shall pay such revenue into the state Treasury, giving notice at the time of such payment to the treasurer that the same was paid under protest. The person so paying such revenue may at any time within thirty days after making such payment, and not longer thereafter, sue the said officer so collecting such revenue in the court having jurisdiction of the parties and amounts."
"If it be determined that the same was wrongfully collected, for any reason going to the merits of the same, then the court trying the case may certify of record that the same was wrongfully paid and ought to be refunded and thereupon the auditor of public accounts shall issue his proper warrant for the same, which shall be paid in preference to other claims on the treasury except such as have priority by constitutional requirement."
"There shall be no other remedy in any case of the collection of revenue or the attempt to collect revenues illegally or the attempt to collect revenue in funds only receivable by said officers under this law, the same being other and different funds than the taxpayer may tender or claim the right to pay, than such as are herein provided, and no writ for the prevention of any revenue claim or to hinder or delay the collection
of the same, shall in any wise issue, either injunction, supersedeas, mandamus, prohibition, or any other writ or process whatever; but in all cases, if for any reason any person shall claim that the revenue so collected of him was wrongfully or illegally collected, the remedy for such person shall be as above provided, and in no other manner. In all such cases, if the court certify of record that the officer defendant acted in good faith and diligently defended the action, the necessary costs incurred by him shall be taxed to and paid by the state, as in criminal cases. The commonwealth attorney for the county or corporation in which suit is brought shall appear and represent the defense. In every case where judgment is rendered for the defendant, a fee of five dollars shall be taxed in favor of said attorney and against the plaintiff, and whenever the court shall refuse to certify the good faith and diligence of the officer defending the case, a like fee of five dollars shall be taxed against said officer. Any officer charged with the collection of revenue who shall receive payment thereof in anything other than that hereinbefore provided shall be deemed guilty of a misdemeanor and fined not less than one hundred nor more than five hundred dollars, in the discretion of the court, but nothing herein contained shall be construed to subject any officer of the state to any suit, other than as hereinbefore provided, for any refusal on his part to accept in payment of revenue due the state any kind or description of funds, security, or paper not authorized by this act."
"2. This act shall be in force from and after the first day of December, eighteen hundred and eighty-two."
§ 18 of the Act of April 1, 1879, Acts 1878-79, p. 318, so far as material, is that
"It shall be the duty of the treasurer, after the first day of December, to call upon each person chargeable with taxes and levies, who has not paid the same prior to that time, or upon the agent of such person resident within the county or corporation, and, upon failure or refusal of such person or agent to pay the same, he shall proceed to collect by distress or otherwise."
Goods and chattels distrained by an officer, by provisions of other statutes then in force, were required to be sold at public sale after due notice, as prescribed.
The Act of January 26, 1882, was amended by an act which was passed and took effect March 13, 1884, by the addition of the following sections:
"§ 2. Whenever any papers, purporting to be coupons cut from bonds of this state shall be tendered to the collecting officer in payment of any taxes due to the state by any party desiring to bring a suit under this statute, it shall be the duty of the collecting officer to place the coupons so tendered in an envelope, to seal the said envelope, write his name across the seal thereof, endorse it with the numbers of the coupons enclosed, and return it to the taxpayer. Upon the trial of any proceeding under this act, the said coupons, enclosed in the said envelope so sealed and endorsed, must be produced in evidence to prove the tender. If the court shall certify that the money paid under protest ought to be refunded, the said coupons shall be delivered to the auditor of public accounts, to be cancelled simultaneously with the issue of his warrant."
"§ 3. No action of trespass or trespass on the case shall be brought or maintained against any collecting officer for levying upon the property of any taxpayer who may have tendered in payment, in whole or in part, any coupon, or paper purporting to be a coupon, cut from bonds of this state for such taxes, and who shall refuse to pay his taxes in gold, silver, United States Treasury notes, or national banknotes. The suit contemplated by this act shall be commenced by a petition filed at rules, upon which a summons shall be issued to the collecting officer, and the said suit shall be regularly matured like other actions at law, and the coupons tendered shall be filed with said petition."
The contract which the plaintiff in error alleges has been violated is with the State of Virginia, and is contained in the Act of March 30, 1871, known as the "Funding Act," entitled "An act to provide for the funding and payment of the public debt," and in the bonds and coupons issued under its authority. It provided for the funding of two-thirds of the existing state debt, and of two-thirds of the interest accrued thereon to July 1, 1871, in new six percent bonds, to run thirty-four years, the bonds, coupon or registered, payable to
order or bearer, and the coupons to bearer, and declared that the coupons should be payable semiannually, and "be receivable at and after maturity for all taxes, debts, dues, and demands due the state," and that this should be expressed on their face. For the remaining one-third, certificates were to be issued to the creditors to hold as claims against the State of West Virginia, that being assumed as her just proportion of the entire debt. "Under this act," it was said by this Court, in Hartman v. Greenhow,102 U. S. 672, 102 U. S. 679,
"a large number of the creditors of the state, holding bonds amounting, including interest thereon, to about thirty millions of dollars, surrendered them and took new bonds with interest coupons annexed for two-thirds of their amount, and certificates for the balance. A contract was thus consummated between the state and the holders of the new bonds and the holders of the coupons, from the obligation of which she could not, without their consent, release herself by any subsequent legislation. She thus bound herself not only to pay the bonds when they became due, but to receive the interest coupons from the bearer at and after their maturity, to their full amount, for any taxes or dues by him to the state. This receivability of the coupons for such taxes and dues was written on their face, and accompanied them in whatever hands they passed. It constituted their chief value, and was the main consideration offered to the holders of the old bonds to surrender them and accept new bonds for two-thirds of their amount."
The same view had been taken by the Supreme Court of Appeals of Virginia in the cases of Antoni v. Wright, 22 Grattan 833; Wise v. Rogers, 24 Grattan 169, and Clarke v. Tyler, 30 Grattan 134, in the last of which cases it was declared to be the settled law of the state. It was repeated by this Court in Antoni v. Greenhow, 107 U. S. 769, where it was said, p. 107 U. S. 775: "The right of the coupon holder is to have his coupon received for taxes when offered," and p. 107 U. S. 771, "any act of the state which forbids the receipt of these coupons for taxes is a violation of the contract, and void as against coupon holders." Upon these propositions there was an entire agreement between the majority and minority of the Court in that case.
The nature and value of this contract right to the coupon holder deserve to be further explained. It was evidently a part of the consideration on which the creditors of the state were induced to accept, under the Act of March 30, 1871, from the State of Virginia, new obligations for two-thirds of their claim, in exchange for the surrender of the original bonds. The latter depended for their payment, as to both principle and interest, upon the continued good faith of the state in making, from time to time, necessary appropriations out of the public treasury to meet its recurring liabilities by positive legislation to that effect. In case of default, there was no remedy by legal process. The state itself could not be sued. Its bare promises to pay had no sanction but the public sense of duty to the public creditors. The only security for their performance was the public faith.
But immediately on the passage of the Act of March 30, 1871, and thereafter, occasional or continued default in the payment of interest on the bonds issued in pursuance of its provisions by reason of failures to provide by laws necessary appropriations for its payment was met, if not obviated, by a self-executing remedy lodged by the law in the hands of the creditor himself. For from that time it became the legal duty of every tax collector to receive coupons from these bonds, offered for that purpose by taxpayers in payment of taxes upon an equal footing at an equal value and with equal effect as though they were gold or silver or legal tender treasury notes. They were by that act reduced in effect into money, and as between the state and its taxpayers, were a legal tender as money. And, being not only a law but a contract, it became, by force of the Constitution of the United States, irrepealable, and therefore is today what it was when first enacted -- the unchangeable law of Virginia. After a tender of such coupons by a taxpayer in payment of taxes and a refusal by a tax collector to receive them, the situation and rights of the taxpayer and coupon holder were precisely what they would have been if he had made a like tender in gold coin and it had been refused. What they would be we shall have occasion presently to inquire. In the meantime, it is clear that the contract
obligation embodied in the quality imparted by law to these coupons, of being receivable in payment of taxes, is a distinct, collateral, and real security, placed in the hands of the creditor, intended to enable him to collect them without process of law. As long as the annual taxes of the state are sufficient in amount to absorb all coupons that are overdue and unpaid, a certain market is created for them which will maintain them at or near their par value. In the hands of the taxpayer who buys them for tender, they are practically no longer choses in action, but equal in value and quality to money, and equivalent to receipts for taxes already paid.
At the time of the passage of the Act of March 30, 1871, there existed a remedy by mandamus, in case a tax collector refused to receive the coupons, issued under that act tendered in payment of taxes, to compel him specifically to do so. The case of Hartman v. Greenhow, 102 U. S. 672, was one in which that relief was administered, and inAntoni v. Greenhow, 107 U. S. 769, it is stated to have been the settled practice of the Supreme Court of Appeals of Virginia to entertain suits for similar relief. By an Act of January 14, 1882, the General Assembly of that state modified the proceedings in mandamus is such cases so as to require the taxpayer first to pay his taxes in money, and then the coupons gendered having, in another proceeding, been determined to be genuine, he was entitled to a judgment upon the mandamus, requiring them to be received in payment of the taxes, and the money previously paid refunded. The validity of this act became the question in Antoni v. Greenhow, ubi supra, and it was affirmed on the ground that, for the purpose of specifically enforcing the right to have the coupons received in payment of taxes, the new remedy was substantially equivalent to the old one. The Court was not willing to decide that it was a suit against the state in which the mode of proceeding could be modified, or the remedy taken away altogether at the pleasure of the state. And it affirmed the right of the coupon holder to have his coupon received for taxes when offered. "The question here," said the Court, "is not as to that right, but as to the remedy the holder has for its enforcement when denied." "The question,"
said THE CHIEF JUSTICE, delivering the opinion of the Court,
"we are now to consider is not whether, if the coupon tendered is in fact genuine and such as ought under the contract to be received, and the tender is kept good, the treasurer can proceed to collect the tax by distraint, or such other process as the law allows, without making himself personally responsible for any trespass he may commit, but whether the act of 1882 violates any implied obligation of the state in respect to the remedies that may be employed for the enforcement of its contract if the collector refuses to take the coupon."
That was a case in which it was sought by mandamus specifically to enforce the contract of the state with the coupon holder by compelling by affirmative action and process of law the collector actually to receive the coupons tendered in satisfaction of taxes. It left unaffected the right of the coupon holder and taxpayer, after his tender had been unlawfully refused, to stand upon his contract and the law in defense of his rights, both of person and property, against all unlawful assaults and seizures. In the former, he was an actor, seeking affirmative relief, to compel the specific performance of the contract. In the latter, he is a defendant, passively resting on his rights and resisting only demands and exactions sought to be enforced against him in denial of them. He has himself in all things performed the contract on his part and obeyed the law, and simply insists that if more is illegally exacted and taken from him, he shall have the remedy which the law gives to every other citizen, not himself in default, against the wrongdoer, who, under color of law, but without law, disturbs or dispossesses him. As we have seen, the coupon holder, whose tender of genuine coupons in payment of taxes has been refused, stands upon the same footing in this respect as though he had tendered gold coin in similar circumstances and with like result.
The question next in order is whether he has any, and, if any, what remedy for the recovery of property distrained to pay the same tax which he has thus already offered and attempted to pay in money or its equivalent. It is well settled by many decisions of this Court that for the purpose of affecting
proceedings to enforce the payment of taxes, a lawful tender of payment is equivalent to actual payment, either being sufficient to deprive the collecting officer of all authority for further action, and making every subsequent step illegal and void. In @51 U. S. 208, it was held that a tender of the notes of the bank of the State of Arkansas, by law and a contract with the note holders made receivable in payment of public dues to the state, was equivalent to payment, in extinguishing the judgment in satisfaction of which they were offered. The Court said:
"The law of tender which avoids future interest and costs has no application in this case. The right to make payment to the state in this paper arises out of a continuing contract, which is limited in time by the circulation of the notes to be received. They may be offered in payment of debts due to the state, in its own right, before or after judgment, and without regard to the cause of indebtment."
In the case of United States v. Lee, 106 U. S. 196, it was held that a certificate of a sale of land for taxes, made by commissioners, which by law was rendered impeachable by proof that the taxes had been paid previous to sale, was rendered void by proof that the commissioners had refused to receive the taxes, without proof of an actual tender, where the commissioners had waived it by a previous notice that they would not accept it. In the opinion of the Court it is said:
"This Court has in a series of cases established the proposition that where the commissioners refused to receive such taxes, their action in thus preventing payment was the equivalent of payment in its effect upon the certificate of sale,"
citing Bennett v. Hunter, 9 Wall. 326; Taxey v. Irwin, 18 Wall. 549; Atwood v. Weems,99 U. S. 183, and Hills v. Exchange Bank, 105 U. S. 319.
The case, then, of the plaintiff below is reduced to this: he had paid the taxes demanded of him by a lawful tender. The defendant had no authority of law thereafter to attempt to enforce other payment by seizing his property. In doing so, he ceased to be an officer of the law and became a private wrongdoer. It is the simple case in which the defendant, a natural private person, has unlawfully, with force and arms, seized,
taken, and detained the personal property of another. That an action of detinue will lie in such a case according to the law of Virginia has not been questioned. The right of recovery would seem to be complete unless this case can be met and overthrown on some of the grounds maintained in argument by counsel for the defendant in error. These we proceed now to examine in their order.
It is objected in the first place that the law and contract by which the quality of being receivable in payment of taxes to the state is imputed to the coupons is itself in violation of that clause of the Constitution of the United States, Art. I, Section 10, which declares that no state shall "emit bills of credit," and is therefore void. The coupons in question are in the ordinary form, and one of them reads as follows:
"Receivable at and after maturity for all taxes, debts, and demands due the state."
"The Commonwealth of Virginia will pay the bearer thirty dollars, interest due first January, 1884, on bond No. 2,731."
"Coupon No. 20."
"GEO. RYE, Treasurer"
It is contended that this is a bill of credit in the sense of the Constitution because, being receivable in payment of debts due the state, and negotiable by delivery merely, it was intended to pass from hand to hand and circulate as money. The meaning of the term "bills of credit" as used in the Constitution has been settled by decisions of this Court. By a sound rule of interpretation it has been construed in the light of the historical circumstances which are known to have led to the adoption of the clause prohibiting their emission by the states, and in view of the great public and private mischiefs experienced during and prior to the period of the war of independence, in consequence of unrestrained issues by the colonial and state governments of paper money based alone upon credit. The definition thus deduced was not founded on the abstract meaning of the words, so as to include everything in the
nature of an obligation to pay money, reposing on the public faith, and subject to future redemption, but was limited to those particular forms of evidences of debt which had been so abused to the detriment of both private and public interests. Accordingly, Chief Justice Marshall, in @ 29 U. S. 432, said that
"bills of credit signify a paper medium intended to circulate between individuals, and between government and individuals, for the ordinary purposes of society."
This definition was made more exact by merely expressing, however, its implications, in @ 36 U. S. 314, where it was said:
"The definition, then, which does include all classes of bills of credit, emitted by the colonies or states is a paper issued by the sovereign power containing a pledge of its faith and designed to circulate as money."
And again, p. 36 U. S. 318:
"To constitute a bill of credit within the Constitution, it must be issued by a state, on the faith of the state, and be designed to circulate as money. It must be a paper which circulates on the credit of the state, and is so received and used in the ordinary business of life."
The definition was repeated in Darrington v. Bank of Alabama, 13 How. 12.
It is very plain to us that the coupons in question are not embraced within these terms. They are not bills of credit in the sense of this constitutional prohibition. They are issued by the state, it is true. They are promises to pay money. Their payment and redemption are based on the credit of the state, but they were not emitted by the state in the sense in which a government emits its treasury notes, or a bank its banknotes -- a circulating medium or paper currency -- as a substitute for money. And there is nothing on the face of the instruments, nor in their form or nature, nor in the terms of the law which authorize their issue, nor in the circumstances of their creation or use, as shown by the record, on which to found an inference that these coupons were designed to circulate in the common transactions of business as money, nor that in fact they were so used. The only feature relied on to show such a design or to prove such a use is that they are made receivable in payment of taxes and other dues to the state. From this
it is argued that they would obtain such a circulation from hand to hand as money as the demand for them, based upon such a quality, would naturally give. But this falls far short of their fitness for general circulation in the community as a representative and substitute for money in the common transactions of business, which is necessary to bring them within the constitutional prohibition against bills of credit. The notes of the Bank of the State of Arkansas, which were the subject of controversy in Woodruff v. Trapnall, 10 How. 190, were by law receivable by the state in payment of all dues to it, and this circumstance was not supposed to make them bills of credit. It is true, however, that in that case it was held they were not so because they were not issued by the state and in its name, although the entire stock of the bank was owned by the state, which furnished the whole capital and was entitled to all the profits. In this case the coupons were issued by the State of Virginia and in its name, and were obligations based on its credit, and which it had agreed, as one mode of redemption, to receive in payment of all dues to itself in the hands of any holder; but they were not issued as and for money, nor was this quality impressed upon them to fit them for use as money or with the design to facilitate their circulation as such. It was conferred, as is apparent from all the circumstances of their creation and issue, merely as an assurance, by way of contract with the holder, of the certainty of their due redemption in the ordinary transactions between the state treasury and the taxpayers. They do not become receivable in payment of taxes till they are due, and the design, we are bound to presume, was that they would be paid at maturity. This necessarily excludes the idea that they were intended for circulation at all.
It is next objected that the suit of the plaintiff below could not be maintained because it is substantially an action against the State of Virginia to which it has not assented. It is said that the tax collector who is sued was an officer and agent of the state, engaged in collecting its revenue under a valid law, and that the tax he sought to collect from the plaintiff was lawfully due; that consequently he was guilty of no personal wrong, but acted only in an official capacity representing
the state, and, in refusing to receive the coupons tendered, simply obeyed the commands of his principal whom he was lawfully bound to obey, and that if any wrong has been done, it has been done by the state in refusing to perform its contract, and for that wrong the state is alone liable, but is exempted from suit by the Eleventh Article of Amendment to the Constitution of the United States, which declares that
"The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state."
This immunity from suit secured to the states is undoubtedly a part of the Constitution of equal authority with every other, but no greater, and to be construed and applied in harmony with all the provisions of that instrument. That immunity, however, does not exempt the state from the operation of the constitutional provision that no state shall pass any law impairing the obligation of contracts, for it has long been settled that contracts between a state and an individual are as fully protected by the Constitution as contracts between two individuals. It is true that no remedy for a breach of its contract by a state, by way of damages as compensation or by means of process to compel its performance, is open under the Constitution in the courts of the United States by a direct suit against the state itself on the part of the injured party, being a citizen of another state or a citizen or subject of a foreign state. But it is equally true that whenever, in a controversy between parties to a suit of which these courts have jurisdiction, the question arises upon the validity of a law by a state impairing the obligation of its contract, the jurisdiction is not thereby ousted, but must be exercised with whatever legal consequences to the rights of the litigants may be the result of the determination. The cases establishing these propositions, which have been decided by this Court since the adoption of the Eleventh Amendment to the Constitution are numerous. 10 U. S. 84; Providence Bank v. Billings, 4 Pet. 514; Woodruff v. Trapnall,10
How. 190; Wolff v. New Orleans,@ 103 U. S. 358; Jefferson Branch Bank v. Skelly, 1 Black 436.
It is also true that the question whether a suit is within the prohibiting of the Eleventh Amendment is not always determined by reference to the nominal parties on the record. The provision is to be substantially applied in furtherance of its intention, and not to be evaded by technical and trivial subtleties. Accordingly, it was held in New Hampshire v. Louisiana and New York v. Louisiana, 108 U. S. 76, that although the judicial power of the United States extends to "controversies between two or more states," it did not embrace a suit in which, although nominally between two states, the plaintiff state had merely permitted the use of its name for the benefit of its citizens in the prosecution of their claims, for the enforcement of which they could not sue in their own names. So, on the other hand, in Cunningham v. Macon & Brunswick Railroad Co., 109 U. S. 446, where the State of Georgia was not nominally a party on the record, it was held that as it clearly appeared that the state was so interested in the property that final relief could not be granted without making it a party, the Court was without jurisdiction.
In that case, the general question was discussed in the light of the authorities, and the cases in which the Court has taken jurisdiction, when the objection has been interposed that a state was a necessary party to enable the Court to grant relief, were examined and classified. The second head of that classification is thus described:
"Another class of cases is where an individual is sued in tort for some act injurious to another in regard to person or property, to which his defense is that he has acted under the orders of the government. In these cases, he is not sued as, or because he is, the officer of the government, but as an individual, and the Court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defense, he must show that his authority was sufficient in law to protect him."
And in illustration of this principle, reference was made to Mitchell v. Harmony, 13 How. 115; Bates v. Clark, 95 U. S. 204; Meigs v. McClung's Lessee, 9 Cranch 11;Wilcox v. Jackson, 13 Pet. 498; Brown v. Huger, 21 How. 315;
Grisar v. McDowell, 6 Wall. 363, and United States v Lee, 106 U. S. 196.
The ratio decidendi in this class of cases is very plain. A defendant sued as a wrongdoer who seeks to substitute the state in his place or to justify by the authority of the state or to defend on the ground that the state has adopted his act and exonerated him cannot rest on the bare assertion of his defense. He is bound to establish it. The state is a political corporate body, can act only through agents, and can command only by laws. It is necessary, therefore, for such a defendant, in order to complete his defense, to produce a law of the state which constitutes his commission as its agent and a warrant for his act. This the defendant in the present case undertook to do. He relied on the Act of January 26, 1882, requiring him to collect taxes in gold, silver, United States Treasury notes, national bank currency, and nothing else, and thus forbidding his receipt of coupons in lieu of money. That, it is true, is a legislative act of the government of Virginia, but it is not a law of the State of Virginia. The state has passed no such law, for it cannot, and what it cannot do, it certainly, in contemplation of law, has not done. The Constitution of the United States, and its own contract, both irrepealable by any act on its part, are the law of Virginia, and that law made it the duty of the defendant to receive the coupons tendered in payment of taxes, and declared every step to enforce the tax thereafter taken to be without warrant of law, and therefore a wrong. He stands, then, stripped of his official character, and, confessing a personal violation of the plaintiff's rights for which he must personally answer, he is without defense.
No better illustration of this principle can be found than that which is furnished by the case of United States v. Lee, 106 U. S. 196, in which it was applied to a claim made on behalf of the national government. The action was one in ejectment to recover possession of lands to which the plaintiff claimed title. The defendants were natural persons whose defense was that they were in possession as officers of the United States under the orders of the government and for its
uses. The Attorney General called this aspect of the case to the attention of the Court, but without making the United States a party defendant. It was decided by this Court that to sustain the defense and to defeat the plaintiff's cause of action it was necessary to show that the defendants were in possession under the United States, and on their behalf, by virtue of some valid authority. As this could not be shown, the contrary clearly appearing, possession of lands, actually in use as a national cemetery, was adjudged to the plaintiffs. The decision in that case was rested largely upon the authority of Osborn v. Bank of the United States, 9 Wheat. 738, which was a suit in equity against an officer of the State of Ohio who sought to enforce one of her statutes which was in violation of rights secured to the bank by the Constitution of the United States. The defendants, Osborn and others, denied the jurisdiction of the court upon the ground that the state was the real party in interest and could not be sued, and that a suit against her officers, who were executing her will, was in violation of the Eleventh Amendment of the Constitution. To this objection Chief Justice Marshall replied:
"If the State of Ohio could have been made a party defendant, it can scarcely be denied that this would be a strong case for an injunction. The objection is that, as the real party cannot be brought before the court, a suit cannot be sustained against the agents of that party, and cases have been cited to show that a court of chancery will not make a decree unless all those who are substantially interested be made parties to the suit. This is certainly true where it is in the power of the plaintiff to make them parties, but if the person who is the real principal -- the person who is the true source of the mischief, by whose power and for whose advantage it is done -- be himself above the law, be exempt from all judicial process, it would be subversive of the best-established principles to say that the laws could not afford the same remedies against the agent employed in doing the wrong which they would afford against him could his principal be joined in the suit."
This language, it may be observed, was quoted with approval in United States v. Lee.The principle which it enunciates constitutes
the very foundation upon which the decision in that case rested.
In the discussion of such questions, the distinction between the government of a state and the state itself is important, and should be observed. In common speech and common apprehension, they are usually regarded as identical, and as ordinarily the acts of the government are the acts of the state, because within the limits of its delegation of power, the government of the state is generally confounded with the state itself, and often the former is meant when the latter is mentioned. The state itself is an ideal person, intangible, invisible, immutable. The government is an agent, and, within the sphere of the agency, a perfect representative; but outside of that, it is a lawless usurpation. The constitution of the state is the limit of the authority of its government, and both government and state are subject to the supremacy of the Constitution of the United States and of the laws made in pursuance thereof. So that, while it is true in respect to the government of a state, as was said in Langford v. United States, 101 U. S. 341, that the maxim that the King can do no wrong has no place in our system of government, yet it is also true, in respect to the state itself, that whatever wrong is attempted in its name is imputable to its government, and not to the state, for, as it can speak and act only by law, whatever it does say and do must be lawful. That which therefore is unlawful because made so by the supreme law, the Constitution of the United States, is not the word or deed of the state, but is the mere wrong and trespass of those individual persons who falsely speak and act in its name. It was upon the ground of this important distinction that this Court proceeded in the case of 74 U. S. 9, when he declared, speaking of the Confederate government, that "it was regarded as simply the military representative of the insurrection against the authority of the United States." The same distinction was declared and enforced inWilliams v. Bruffy, 96 U. S. 176, 96 U. S. 192, and in 84 U. S. 465.
This distinction is essential to the idea of constitutional government. To deny it or blot it out obliterates the line of demarcation that separates constitutional government from absolutism, free self-government based on the sovereignty of the people from that despotism, whether of the one or the many, which enables the agent of the state to declare and decree that he is the state; to say "L'Etat, c'est moi." Of what avail are written constitutions, whose bills of right for the security of individual liberty have been written too often with the blood of martyrs shed upon the battlefield and the scaffold, if their limitations and restraints upon power may be overpassed with impunity by the very agencies created and appointed to guard, defend, and enforce them, and that too with the sacred authority of law, not only compelling obedience, but entitled to respect? And how else can these principles of individual liberty and right be maintained if, when violated, the judicial tribunals are forbidden to visit penalties upon individual offenders, who are the instruments of wrong, whenever they interpose the shield of the state? The doctrine is not to be tolerated. The whole frame and scheme of the political institutions of this country, state and federal, protest against it. Their continued existence is not compatible with it. It is the doctrine of absolutism, pure, simple, and naked, and of communism, which is its twin, the double progeny of the same evil birth.
It was said by Chief Justice Chase, speaking for the whole Court in @ 74 U. S. 76, that the people,
through the Constitution of the United States,
"established a more perfect union by substituting a national government, acting, with ample power, directly upon the citizens, instead of the Confederate government, which acted with powers, greatly restricted, only upon the states."
In no other way can the supremacy of that Constitution be maintained. It creates a government in fact as well as in name, because its Constitution is the supreme law of the land, "anything in the constitution or laws of any state to the contrary notwithstanding," and its authority is enforced by its power to regulate and govern the conduct of individuals, even where its prohibitions are laid only upon the states themselves. The mandate of the state affords no justification for the invasion of rights secured by the Constitution of the United States; otherwise, that Constitution would not be the supreme law of the land.
When, therefore, an individual defendant pleads a statute of a state, which is in violation of the Constitution of the United States as his authority for taking or holding property to which the citizen asserts title and for the protection or possession of which he appeals to the courts, to say that the judicial enforcement of the supreme law of the land, as between the individual parties, is to coerce the state ignores the fundamental principles on which the Constitution rest, as contrasted with the Articles of Confederation, which it displaced, and practically makes the statutes of the states the supreme law of the land within their respective limits.
When, therefore, by the Act of March 30, 1871, the contract was made by which it was agreed that the coupons issued under that act should thereafter be receivable in payment of taxes, it was the contract of the State of Virginia, because, though made by the agency of the government, for the time being, of the state, that government was acting within the scope of its authority, and spoke with its voice as its true representative, and inasmuch as, by the Constitution of the United States, which is also the supreme law of Virginia, that contract, when made, became thereby unchangeable and irrepealable by the state, the subsequent Act of January 26, 1882, and all other like acts, which deny the obligation of that contract
and forbid its performance, are not the acts of the State of Virginia. The true and real commonwealth which contracted the obligation is incapable in law of doing anything in derogation of it. Whatever having that effect, if operative, has been attempted or done is the work of its government acting without authority, in violation of its fundamental law, and must be looked upon in all courts of justice as if it were not and never had been. The argument, therefore, which seeks to defeat the present action for the reason that it is a suit against the State of Virginia, because the nominal defendant is merely its officer and agent, acting in its behalf, in its name, and for its interest, and amenable only to it, falls to the ground because its chief postulate fails. The State of Virginia has done none of these things with which this defense charges her. The defendant in error is not her officer, her agent, or her representative in the matter complained of, for he has acted not only without her authority, but contrary to her express commands. The plaintiff in error, in fact and in law, is representing her as he seeks to establish her law, and vindicates her integrity as he maintains his own right.
Tried by every test which has been judicially suggested for the determination of the question, this cannot be considered to be a suit against the state. The state is not named as a party in the record; the action is not directly upon the contract; it is not for the purpose of controlling the discretion of executive officers, or administering funds actually in the public Treasury, as was held to be the case in Louisiana v. Junel,107 U. S. 711; it is not an attempt to compel officers of the state to do the acts which constitute a performance of its contract by the state, as suggested by a minority of the court in Antoni v. Greenhow, 107 U. S. 769, 107 U. S. 783, nor is it a case where the state is a necessary party, that the defendant may be protected from liability to it, after having answered to the present plaintiff. For, on this supposition, if the accounting officers of the state government refuse to credit the tax collector with coupons received by him in payment of taxes, or seek to hold him responsible for a failure to execute the void statute, which required him to refuse coupons in payment of taxes, in any action or
prosecution brought against him in the name of the state, the grounds of the judgment rendered in favor of the present plaintiff will constitute his perfect defense. And as that defense made in any cause, though brought in a state court, would present a question arising under the Constitution and laws of the United States, it would be within the jurisdiction of this Court to give it effect, upon a writ of error, without regard to the amount or value in dispute.
In the case of @ 22 U. S. 853, Chief Justice Marshall put by way of argument and illustration the very case we are now considering. He said:
"Controversies respecting boundary have lately existed between Virginia and Tennessee, between Kentucky and Tennessee, and now exist between New York and New Jersey. Suppose, while such a controversy is pending, the collecting officer of one state should seize property for taxes belonging to a man who supposes himself to reside in the other state and who seeks redress in the federal court of that state in which the officer resides. The interest of the state is obvious. Yet it is admitted that in such a case, the action would lie, because the officer might be treated as a trespasser, and the verdict and judgment against him would not act directly on the property of the state. That it would not so act may perhaps depend on circumstances. The officer may retain the amount of the taxes in his hands, and, on the proceedings of the state against him, may plead in bar the judgment of a court of competent jurisdiction. If this plea ought to be sustained, and it is far from being certain that it ought not, the judgment so pleaded would have acted directly on the revenue of the state in the hands of its officers. And yet the argument admits that the action, in such a case, would be sustained. But suppose in such a case the party conceiving himself to be injured, instead of bringing an action sounding in damages, should sue for the specific thing while yet in possession of the seizing officer. It being admitted in argument that the action sounding in damages would lie, we are unable to perceive the line of distinction between that and the action of detinue. Yet the latter action would claim the specific article seized for the tax,
and would obtain it should the seizure be deemed unlawful."
Although the plaintiff below was nominally the actor, the action itself is purely defensive. Its object is merely to resist an attempted wrong, and to restore the status in quo as it was when the right to be vindicated was invaded. In this respect it is upon the same footing with the preventive remedy of injunction in equity, when that jurisdiction is invoked, and of which a conspicuous example, constantly followed in the courts of the United States, was the case of Osborn v. Bank of the United States, ubi supra. In that case, the taxing power of the state was resisted on the ground that its exercise threatened to deprive the complainant of a right conferred by the Constitution of the United States. The jurisdiction has been constantly exerted by the courts of the United States to prevent the illegal taxation of national banks by the officers of the states. And in Cummings v. National Bank, 101 U. S. 153, 101 U. S. 157, it was laid down as a general principle of equity jurisdiction
"that when a rule or system of valuation is adopted by those whose duty it is to make the assessment, which is designed to operate unequally and to violate a fundamental principle of the Constitution, and when this rule is applied not solely to one individual, but to a large class of individuals or corporations, equity may properly interfere to restrain the operation of this unconstitutional exercise of power."
And it is no objection to the remedy in such cases that the statute whose application in the particular case is sought to be restrained is not void on its face, but is complained of only because its operation in the particular instance works a violation of a constitutional right, for the cases are numerous where the tax laws of a state which in their general and proper application are perfectly valid have been held to become void in particular cases either as unconstitutional regulations of commerce or as violations of contracts prohibited by the Constitution, or because in some other way they operate to deprive the party complaining of a right secured to him by the Constitution of the United States. At the present term of this Court, at least three cases have been decided in which railroad companies
have been complainants in equity seeking to restrain officers of states from collecting taxes on the ground of an exemption by contract, and no question of jurisdiction has been raised. The practice has become common, and is well settled on incontestable principles of equity procedure. Memphis Railroad v. Railroad Commissioners, 112 U. S. 609; St. Louis &c. Ry. Co. v. Berry, 113 U. S. 465; Chesapeake & Ohio Railroad Co. v. Miller, ante, 114 U. S. 176.
It is still urged upon us, however, in argument that notwithstanding all that has been or can be said, it still remains that the controversy disclosed by the record is between an individual and the state; that the state alone has any real interest in its determination; that the practical effect of such determination is to control the action of the state in the regular and orderly administration of its public affairs, and that therefore the suit is and must be regarded as a suit against the state within the prohibition of the Eleventh Amendment to the Constitution. Omitting for the time being the consideration already enforced of the fallacy that lies at the bottom of this objection, arising from the distinction to be kept in view between the government of a state and the state itself, the premises which it assumes may all be admitted, but the conclusion would not follow. The same argument was employed in the name of the United States in the Lee case, and did not prevail. It was pressed with the greatest force of which it was susceptible in the case of Osborn v. Bank of the United States,and was met and overcome by the masterly reasoning of Chief Justice Marshall. It appeared early in the history of this Court, in 1799, in the case of Fowler v. Lindsey, 3 Dall. 411, in which that able magistrate Mr. Justice Washington pronounced his first reported opinion. On a motion to remove the cause by certiorari from the circuit court on the ground that it was a suit in which a state was a party, it being an ejectment for lands the title to which was claimed under grants from different states, he said:
"A case which belongs to the jurisdiction of the Supreme Court on account of the interest that a state has in the controversy must be a case in which a state is either nominally or substantially the party.
It is not sufficient that a state may be consequentially affected, for in such case (as where the grants of different states are brought into litigation), the circuit court has clearly a jurisdiction. And this remark furnishes an answer to the suggestions that have been founded on the remote interest of the state in making retribution to her grantees upon the event of an eviction."
The thing prohibited by the Eleventh Amendment is the exercise of jurisdiction in a
"suit in law or equity commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state."
Nothing else is touched, and suits between individuals, unless the state is the party in a substantial sense, are left untouched, no matter how much their determination may incidentally and consequentially affect the interests of a state or the operations of its government. The fancied inconvenience of an interference with the collection of its taxes by the government of Virginia by suits against its tax collectors vanishes at once upon the suggestion that such interference is not possible except when that government seeks to enforce the collection of its taxes contrary to the law and contract of the state and in violation of the Constitution of the United States. The immunity from suit by the state, now invoked, vainly, to protect the individual wrongdoers, finds no warrant in the Eleventh Amendment to the Constitution, and is in fact a protest against the enforcement of that other provision which forbids any state from passing laws impairing the obligation of contracts. To accomplish that result requires a new amendment which would not forbid any state from passing laws impairing the obligation of its own contracts.
What we are asked to do is in effect to overrule the doctrine in @ 10 U. S. 135-136:
"When, then, a law is in its nature a contract, when absolute rights have vested under that contract, a repeal of the law cannot divest those rights, and the act of annulling them, if legitimate, is rendered so by a power applicable to the case of every individual in the community. It may well be doubted whether the nature of society and of government does not prescribe some limits to the legislative power, and if any be prescribed where are they to be found if the property of an individual, fairly and honestly acquired, may be seized without compensation? To the legislature all legislative power is granted, but the question whether the act of transferring the property of an individual to the public be in the nature of legislative power is well worthy of serious reflection."
And in view of such a contention, we may well add the impressive and weighty words of the same illustrious man, when he said in @ 5 U. S. 163:
"The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right."
It is contended, however, in behalf of the defendant in error that the Act of January 26, 1882, under which he justified his refusal of the tender of coupons, does not impair the obligation of the contract between the coupon holder and the State of Virginia inasmuch as it secures to him a remedy equal in legal value to all that it takes away, and that consequently, as the state may lawfully legislate by changing remedies so that it does not destroy rights, the remedy thus provided is exclusive, and must defeat the plaintiff's action. The remedy thus substituted and declared exclusive is one that requires the taxpayer demanding to have coupons received in payment of taxes, first, to pay the taxes due from him in money, under protest, when, within thirty days thereafter, he may sue the officer to recover back the amount paid, which, on obtaining judgment therefor, shall be refunded by the auditor of public accounts out of the treasury. By the amendment passed March 13, 1884, the coupons tendered are required to
be sealed up and marked for identification, filed with the petition at the commencement of the suit, produced on the trial as evidence of the tender, and delivered to the auditor of public accounts, to be cancelled when he issues his warrant for the amount of the judgment.
It is contended that in view of this remedy, the case is ruled by the decision of this Court in Antoni v. Greenhow, 107 U. S. 769. We have, however, already shown by extracts from the opinion of the Court in that case that the question involved in the present proceeding was not covered by that judgment. In that case, the plaintiff in error was seeking to compel the officer specifically to receive his coupons in payment of taxes by mandamus on the ground that he was entitled to that remedy when the contract was made by the law of March 30, 1871. The law giving that remedy was subsequently amended, requiring the petitioner to pay the taxes in money in the first instance, and permitting the writ to issue only after a trial in which the genuineness of the coupons tendered had been established. The Court held that he might have been put to the same proof in the former mode of proceeding, and that the amendment did not destroy the efficiency of the remedy.
But here the plaintiff did not seek any compulsory process against the officer to require him specifically to receive the coupons tendered. He offered them and they were refused. He chose to stand upon the defensive and maintain his rights as they might be assailed. His right was to have his coupon received for taxes when offered. That was the contract. To refuse to receive them was an open breach of its obligation. It is no remedy for this that he may acquiesce in the wrong, pay his taxes in money which he was entitled to pay in coupons and bring suit to recover it back. His tender, as we have already seen, was equivalent to payment, so far as concerns the legality of all subsequent steps by the collector to enforce payment by distraint of his property. He has the right to say he will not pay the amount a second time, even for the privilege of recovering it back. And if he chooses to stand upon a lawful payment once made, he asks no remedy to recover back taxes illegally collected, but may resist the exaction, and treat
as a wrongdoer the officer who seizes his property to enforce it.
It is suggested that the right to have coupons received in payment of taxes is a mere right of setoff, and is itself but a remedy subject to the control of legislation. Ordinarily, it is true, the right to set off mutual independent debts, by way of compensation and satisfaction, is dependent on the general law, does not enter into the contract, although it may be the lex loci contractus, and is dependent for its enforcement upon the lex fori, when suit is brought, and consequently may be changed by the legislature without impairing vested rights. But in such cases, the right is entirely dependent upon the general law, and changes with it. It is different when, as in many cases of equitable setoff, it inheres in the transaction, or arises out of the relations of the parties, and it may in any case, as it was in this, be made the subject of contract between parties. When this is done, it stands upon the footing of every other lawful contract, upon valuable consideration, the obligation of which cannot be impaired by subsequent legislation.
It is urged upon us, however, that in a revenue system, a provision of law which gives to a party complaining of an illegal exaction of taxes, the right to recover back the amount in dispute only after previous payment under protest, as the sole remedy, against either the officer or the government, is a just and reasonable rule, sufficiently securing private rights, and convenient, if not necessary, to the interests of the public. We are referred to the revenue laws of the United States for illustration and example, and the question is put why a similar provision, as it is assumed to be, should not be considered adequate as a remedy for the holders of coupons in Virginia, who have been denied the right to use them in payment of taxes.
The answer is obvious and complete. Virginia, by a contract which the Constitution of the United States disables her from impairing, has bound herself that it shall be otherwise. The state has agreed that the coupons cut from her bonds shall be received in payment of taxes due to her, as though they were money. When the taxpayer has tendered such coupons, he has complied with the agreement, and in legal contemplation
has paid the debt he owed the state. So far as that tax is concerned, and every step taken for enforcing its payment in disregard of that tender, the coupon holder is with drawn from the power and jurisdiction of the state. He is free from all further disturbance, and is securely shielded by the Constitution in his immunity. No proceeding, whatever its pretext, which does not respect this right can be judicially upheld. The question is not of the reasonableness of a remedy for a breach of the contract to receive the tendered coupons in payment of the tax; it is whether the right to have them so received, and the use of that right as a defense against all further efforts to exact and compel payment of the tax, in denial and defiance of that right, can be taken away without a violation of that provision of the Constitution which prohibits the states from passing laws which impair the obligation of contracts. Certainly a law which takes from the party his whole contract, and all the rights which it was intended to confer, must be regarded as a law impairing its obligation.
Another point remains for consideration. Rev.Stat. § 721 provides that
"The laws of the several states, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they apply,"
and § 914 declares that
"The practice, pleadings, and forms and modes of proceeding in civil causes, other that equity and admiralty causes, in the circuit and district courts shall conform as near as may be to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held, any rule of court to the contrary notwithstanding."
Upon these sections it is argued that, admitting the Acts of the General Assembly of Virginia of January 26, 1882, and the amendment by the Act of March 13, 1884, to be unconstitutional and void so far as they forbid tax collectors from receiving coupons in payment of taxes, nevertheless, as the state has control over the forms of action and modes of proceeding by way of remedy, and has forbidden, in cases where the tax collector has refused
coupons in payment of taxes, any personal action against him other than the suit to recover back the tax demanded and paid under protest, the same law, by force of the Revised Statutes of the United States, must govern in the courts of the United States.
It is not entirely clear on the face of the Act of January 26, 1882, that it does forbid actions against the officer for illegally levying upon the property of the coupon holder for the tax which he has offered to pay. The language of the act seems to embrace only such suits as are framed with the direct object of preventing or restraining him from taking steps to collect the tax. And this uncertainty is not made clear by the Amendatory Act of March 13, 1884, which, by expressly forbidding actions of trespass or trespass on the case to be brought or maintained against any collecting officer for levying upon the property of any taxpayer who may have tendered coupons in payment of the tax demanded, would seem to have left the action of detinue, which was authorized in such cases by the previously existing law of Virginia, untouched by the prohibition.
We shall assume, however, for the purposes of this opinion that these acts of the General Assembly of Virginia were intended to and do forbid every action of whatever kind against the collecting officer for the recovery of specific property taken by distraint or of damages for its caption or detention, and leaves to the coupon holder, as his sole right of action, the suit to recover back the money illegally collected from him.
This action, as we have already seen, is no remedy whatever for the loss of the specific right of paying his taxes with coupons. It does not even profess so to be. Neither is it a remedy for the loss of the right sought to be vindicated in this and other personal actions against the collector for unlawfully taking from the plaintiff his property. And upon the supposition made, this wrong is without remedy by any law of Virginia.
The direct result, then, of giving effect to these provisions of the act in question is to defeat entirely the right of the
coupon holder to pay his taxes with his coupons, which we have already said avoids that part of the acts in question which forbids it in terms, and to take from him that right as a defense against the wrongs and trespasses committed upon him and his property in denial and defiance of it. All persons whose property is unlawfully taken otherwise than to enforce payment of taxes are secured in their right of action for redress. But the coupon holder, to whom the Constitution of the United States guarantees the right, conferred upon him by the law and contract of Virginia, to pay his taxes in coupons is excepted. The discrimination is made against him in order to deprive him of that right, and, if permitted, will have the effect of denying to him all redress for a deprivation of a right secured to him by the Constitution. To take away all remedy for the enforcement of a right is to take away the right itself. But that is not within the power of the state.
Rev.Stat. § 721, it will be observed, makes an express exception, in reference to the adoption of state laws as rules of decision, of cases where the Constitution otherwise requires, which it does wherever the adoption of the state law deprives a complaining party of a remedy essential to the vindication of a right and that right is derived from or protected by the Constitution of the United States. The same exception is implied in § 914, the language of which indeed is not imperative, as the conformity required in the practice and procedure of the courts of the United States with that of the state courts needs only to be "as near as may be." No one would contend that a law of a state forbidding all redress by actions at law for injuries to property would be upheld in the courts of the United States, for that would be to deprive one of his property without due process of law. This is exactly what the statutes in question undertake to do in respect to that class of persons whose property is taken from them for the offense of asserting, under the protection of the Constitution, the right to pay their taxes in coupons. The contract with Virginia was not only that the coupons should be received in payment of taxes, but, by necessary implication, that the taxpayer making such a tender should not be molested further, as though he were a
delinquent, and that for every illegal attempt subsequently to enforce the collection of the tax by the seizure of property, he should have the remedies of the law in force when the contract was made for redress, or others equally effective. "The obligation of a contract," said this Court in @ 43 U. S. 612,
"consists in its binding force on the party who makes it. This depends on the laws in existence when it is made. These are necessarily referred to in all contracts, and forming a part of them, as the measure of the obligation to perform them by the one party and the right acquired by the other. There can be no other standard by which to ascertain the extent of either than that which the terms of the contract indicate, according to their settled legal meaning; when it becomes consummated, the law defines the duty and the right, compels one party to perform the thing contracted for, and gives the other a right to enforce the performance by the remedies then in force. If any subsequent law affect to diminish the duty or to impair the right, it necessarily bears on the obligation of the contract in favor of one party to the injury of the other; hence, any law which in its operation amounts to a denial or obstruction of the rights accruing by a contract, though professing to act only on the remedy, is directly obnoxious to the prohibition of the Constitution."
The acts of assembly in question must be taken together, as one is but an amendment to the other. The scheme of the whole is indivisible. It cannot be separated into parts. It must stand or fall together. The substantive part of it, which forbids the tax collector to receive coupons in payment of taxes, as we have already declared, as, indeed, on all sides is admitted, cannot stand, because it is not consistent with the Constitution. That which is merely auxiliary to the main design must also fall with the principal of which it is merely an incident, and it follows that the acts in question are not laws of Virginia, and are therefore not within the sections of the Revised Statutes referred to, nor obligatory upon the courts of the United States.
It is undoubtedly true that there may be cases where one part of a statute may be enforced as constitutional and another
be declared inoperative and void because unconstitutional, but these are cases where the parts are so distinctly separable that each can stand alone, and where the court is able to see and to declare that the intention of the legislature was that the part pronounced valid should be enforceable even though the other part should fail. To hold otherwise would be to substitute for the law intended by the legislature one they may never have been willing by itself to enact. An illustration of this principle is found in theTrademark Cases, 100 U. S. 82, where an act of Congress which, it was claimed, would have been valid as a regulation of commerce with foreign nations and among the states was held to be void altogether because it embraced all commerce, including that between citizens of the same state, which was not within the jurisdiction of Congress, and its language could not be restrained to that which was subject to the control of Congress. "If we should," said the Court in that case, p. 100 U. S. 99,
"in the case before us undertake to make by judicial construction a law which Congress did not make, it is quite probable we should do what, if the matter were now before that body, it would be unwilling to do."
Indeed, it is quite manifest from the face of the laws themselves that they are together but parts of a larger whole. By an Act of the General Assembly of Virginia passed February 14, 1882, the legislature restated the account between the state and its creditors on a basis of readjustment which reduced it to the sum of $21,035,377.15, including interest in arrears to July 1, 1882, which was thereby declared to be her equitable share of the debt of the old and entire state, and on which it was also declared that the state was not able to pay interest for the future at a larger rate than three percent per annum. The outstanding debt, of which this was a reduction, was then classified, and bonds of the state were authorized to be issued, bearing interest at the rate of three percent per annum, in exchange for outstanding bonds of the different classes, scaled at rates of fifty-three percent, sixty percent, sixty-nine percent, sixty-three percent, and, as to one class, as high as eighty percent, which were to be retired
and cancelled. The coupons on the new bonds were not made receivable in payment of taxes. To coerce creditors holding bonds issued under the Act of March 30, 1871, to exchange them for these new bonds at these reduced rates, and with them to give up their security for the payment of interest arising out of the receivability of coupons in payment of taxes, is the evident purpose of the Acts of January 26, 1882, and of March 13, 1884, and all together form a single scheme the undisguised object of which is to enable the state to rid itself of a considerable portion of its public debt and to place the remainder on terms to suit its own convenience, without regard to the obligation it owes to its creditors.
The whole legislation, in all its parts, as to creditors affected by it and not consenting to it, must be pronounced null and void. Such is the sentence of the Constitution itself, the fundamental and supreme law for Virginia, as for all the states and for all the people, both of the states separately and of the United States, and which speaks with sovereign and commanding voice, expecting and receiving ready and cheerful obedience, not so much for the display of its power, as on account of the majesty of its authority and the justice of its mandates.
The judgment of the hustings court of the City of Richmond is accordingly reversed, and the cause will be remanded with directions to render judgment upon the agreed statement of facts in favor of the plaintiff.
MR. JUSTICE BRADLEY, with whom concurred THE CHIEF JUSTICE, MR. JUSTICE MILLER, and MR. JUSTICE GRAY dissented. Their dissenting opinion will be found post,page 114 U. S. 330, after the opinion of the Court in Marye v. Parsons.
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