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 guaranties 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.

Section 721, Rev. St., 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 section 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 tax-payer makingo 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 McCracken v. Hayward, 2 How. 608, 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 ar 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 the Trade-mark 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 betweer 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, (page 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 3 per cent. 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 3 per cent. per annum, in exchange for outstanding bonds of the different classes, scaled at rates of 53 per cent., 60 per cent., 69 per cent., 63 per cent., and, as to one class, as high as 80 per cent., which were to be retired *and canceled. 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; and it is so ordered.

(114 U. S. 307)

WHITE v. GREENHOW.1

(April 20, 1885.)

VIRGINIA BONDS-POINDEXTER V. GREENHOW, ANTE, 903, FOLLOwed.

This case falls within the decision in Poindexter v. Greenhow, ante, 903, and is decided by it.

In Error to the Circuit Court of the United States for the Eastern District of Virginia,

Wm. L. Royall, D. H. Chamberlain, Wm. M. Evarts, and Wager Swayne, for plaintiff in error. A. H. Garland, R. T. Merrick, and F. S. Blair, Atty. Gen., for defendant in error.

MATTHEWS, J. The plaintiff in error, who was plaintiff below, brought his action in the circuit court of the United States for the Eastern district of Virginia against the defendant, both being citizens of that state. The declaration, in substance, sets out that the plaintiff, owning property in the city of Richmond, was assessed thereon for the year 1882 for certain taxes to be paid to the state of Virginia, leviable for after December 1, 1882; that the defendant was treasurer of the city of Richmond, and, as such, collector of taxes due to the state assessed on property in that city; that plaintiff tendered to the defendant, on demand being made for payment of said taxes, the amount thereof in coupons cut from bonds issued by the state of Virginia under the act of March 30, 1871, entitled "An act to provide for the funding and payment of the public debt," which coupons, by the terms of said act, were receivable in payment of taxes by virtue of a contract with the state of Virginia; that the defendant refused to receive said coupons, under color of the authority of the act of the general assembly of the state of Virginia, passed January 26, 1882, which forbade him to receive the same; that the defendant,, after refusal of said tender, forcibly and unlawfully entered the premises of the plaintiff, and levied upon and seized and carried away personal property of the plaintiff of the value of $3,000, in order to sell the same for the satisfaction of said taxes, which he claimed to be unpaid and delinquent; that the acts of the general assembly of Virginia, specified in the pleadings, which require the tax collector to refuse to receive such coupons in payment of taxes, and to proceed with the collection of taxes, for the payment of which they have been tendered, as if they were delinquent, impair the obligation of the said contract between the state of Virginia and the plaintiff; and that by reason of the said wrongs the plaintiff has suffered damage in the sum of $6,000 for which he brings suit. To this declaration the defendant demurred generally, the demurrer was sustained, and judgment was rendered for the de fendant. The plaintiff sued out this writ of error.

All the questions raised and argued upon the merits of this case have beer fully considered in the opinion of the court in the case of Poindexter v Greenhow, ante, 903. The present action, as shown on the face of the declaration, was a case arising under the constitution of the United States, and was one, therefore, of which the circuit court of the United States had rightful jurisdiction by virtue of the act of March 3, 1875, without regard to the citizenship of the parties, the sum or value in controversy being in excess of $500.

In conformity with the views expressed in the opinion in Poindexter v. Greenhow, ante, 903, the judgment in the present case is reversed, and the cause is remanded, with directions to proceed therein in conformity with law.

'See dissenting opinion, post, 962.

808

VIRGINIA BONDS-POINDEXTER v. GREENHOW, ANTE, 903, Followed.

This case falls within the decision in Poindexter v. Greenhow, ante, 903, and is decided by it.

In Error to the Supreme Court of Appeals of the State of Virginia.

Wm. L. Royall, D. H. Chamberlain, Wm. M. Evarts, and Wager Swayne, for plaintiff in error. A. H. Garland, R. T. Merrick, and F. S. Blair, Atty. Gen., for defendant in error.

MATTHEWS, J. This was an action in trespass de bonis asportatis, brought by the plaintiff in error against the defendant in the circuit court for the county of Henrico, in Virginia, for the recovery of $150 damages for unlawfully entering upon the plaintiff's premises and seizing, taking, and carrying away one horse, the property of the plaintiff, of the value of $100. The defendant justified the taking, etc., as treasurer of Henrico county, charged by law with the duty of collecting taxes due the state of Virginia on property and persons in said county, alleging that the property was lawfully seized and taken for taxes due from the plaintiff to the state, which, on demand, he had refused to pay. To this plea the plaintiff replied a tender in payment of the taxes, when demanded and before the trespass complained of, of the amount due, in coupons cut from bonds of the state of Virginia, receivable in payment of taxes by virtue of the act of March 30, 1871. To the replication the defendant demurred specially, on the ground-First, that by the act of January 26, 1882, he was forbidden to receive coupons in payment of taxes; and, second, that by the act of March 13, 1884, an action of trespass would not lie in such a case. In this demurrer the plaintiff joined, and assigned as a reason why it should be overruled that the two statutes mentioned and relied on by the defendant were repugnant to section 10, article 1, of the constitution of the United States, and therefore null and void. Judgment was rendered on the demurrer in favor of the defendant. Thereafter, on November 25, 1884, the plaintiff filed his petition in the supreme court of appeals of Virginia for the allowance of a writ of error; whereupon, as the record recites, the petition, "having been maturely considered, and the transcript of the record of the judgment aforesaid seen and inspected, the court, being of opinion that said judgment is plainly right, doth deny the said writ." To reverse this judgment this writ of error is prosecuted.

The judgment of the supreme court of appeals is in substance a judgment affirming the judgment of the circuit court of Henrico county, and is, therefore, reviewable upon this writ of error by this court, the case being one which arises under the constitution of the United States. Williams v. Bruffey, 102 U. S. 248. The merits of the case are disposed of by the opinion in Poindexter v. Greenhow, ante, 903, in which it was decided that the act of January 26, 1882, and the act of March 13, 1884, were unconstitutional, and therefore null and void. It is not denied that, but for these acts, the action of trespass would lie in such a case under the laws of Virginia; and as the acts relied on by the defendant must be treated as ineffectual for every purpose, they do not work a repeal of the previously existing law.

The judgment of the supreme court of appeals is accordingly reversed, and the cause is remanded to that court, with directions to take further proceedings, in accordance with law, in conformity with this opinion; and it is so ordered.

(114 U. S. 311)

ALLEN, Auditor, etc., and others v. BALTIMORE & O. R. Co.1

(April 20, 1885.)

1. VIRGINIA Bonds-Poindexter v. GreenhOW, ANTE, 903, FOLLOWED.

The general questions arising and argued in this case are fully discussed and decided in the case of Poindexter v. Greenhow, ante, 903.

2. TAXATION-RESTRAINING COLLECTION OF TAX-UNCONSTITUTIONAL STATE LAW. The remedy by injunction to prevent the collection of taxes by distraint upon the rolling stock, machinery, cars, and engines, and other property of railroad corporations, after a tender of payment in tax-receivable coupons, is sanctioned by repeated decisions of this court, and has become common and unquestioned practice, in similar cases, where exemptions have been claimed in virtue of the constitution of the United States; the ground of the jurisdiction being that there is no adequate remedy at law.

Appeal from the Circuit Court of the United States for the Western District of Virginia.

F. S. Blair, Atty. Gen., R. T. Merrick, and A. H. Garland, for appellants. John K. Cowen and Hugh J. Sheffey, for appellee.

MATTHEWS, J. This is a bill in equity filed by the Baltimore & Ohio Railroad Company, a corporation created by the laws of Maryland, and a citizen of that state, against the appellants, who were defendants below, of whom Allen is auditor of public accounts; Revely, treasurer of the state of Virginia; and Hamilton, treasurer of Augusta county, in that state; and all citizens of Virginia. The complainant is the lessee in possession of certain railway lines in Virginia, the Winchester & Potomac, the Winchester & Strasburg, and the Strasburg & Harrisonburg Railroads,—and also operates a railroad belonging to the Valley Railroad Company in that state.

It is alleged in the bill that, "by the twentieth and twenty-first sections of an act of the general assembly of Virginia, approved on the twenty-second day? of April, 1882, and entitled 'An act for the assessment of taxes on persons, property, income, and licenses, and imposing taxes thereon for the support of the government and free schools, and to pay the interest on the public debt,' provision was made for the assessment and taxation of the railroads within the state; the board of public works, acting upon the reports of the officers of the railroad companies, and upon the best and most reliable information that could be procured, being authorized and required to ascertain and assess the value of the real and personal property of such companies for taxation at the rate of forty cents on every hundred dollars of the estimated value thereof and said act further provides that it shall be the duty of every railroad com. pany so assessed, to pay into the treasury of the state, within sixty days after receipt of notice of such assessment, the tax imposed by law; and a company failing to pay the tax assessed upon its property, shall be immediately assessed under the direction of the auditor of public accounts, by any person appointed by him for the purpose, rating their real estate and rolling stock at $20,000 per mile, and a tax thereon levied of forty cents on the $100 of such fixed value; and the amount so assessed shall be collected by any treasurer to whom the auditor may deliver the assessment, who is authorized to distrain and sell any personal property of such company for the amount of such taxes."

It is further alleged that on November 22, 1882, the board of public works assessed said railroads for taxation at the rate of $15,000 per mile, of which notice was given to the complainant, on January 17, 1883, as the party liable by law for the payment of the taxes assessed upon them; that on March 16, 1884, within 60 days thereafter, the complainant obtained from the auditor of public accounts warrants to pay into the treasury the several amounts charged as to each of said railroads, which the treasurer of the commonwealth, by in

'S. C. 17 Fed. Rep. 171. See dissenting opinion, post, 962.