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sidered irrelevant, perhaps no more important to evidence received or an erroneous charge given or the merits than whether he stood at right angles to a proper instruction refused, how could an appellate the jury when he testified. When we consider that court determine that justice had been done ? A an important trial may continue a week or more, party has not had justice done to him until his and when we think how little of the testimony the case has been legally tried; and if appellate courts jury remember at the end of the trial, it is laugh- are to dispose of each case as they deem just able to observe appellate courts granting new trials upon the whole record, disregarding errors of law, because they cannot say that such a piece of evi- what will become of the value of precedents and dence did not affect the jury.” This arraignment is the certainty of the law, exceedingly desirable so too severe to be laughable. With large experience, far as can be obtained ? An appeal under such cirI have never known a judge to write an opinion cumstances would be little more than an arbitramerely or mainly to make a precedent, or for any tion. other purpose than to reach a just conclusion. Are
one other cause of legal delay may be they to cut loose from the wisdom and labors of the briefly mentioned with due deference to the judici. past, and lose sight of the maxim that “
ary, and that is the writing of long opinions. "'Tis wisdom is better than any man's wisdom ?" In all pleasant sure to see one's self in print. A book's a the appellate courts I know any thing about, the book, although there's nothing in't.' Long opinions rule is rigidly enforced that an error which could take up time in writing. And they cause another have done no harm shall be disregarded; and judg- evil. Besides the point of law decided, there is often ments are never reversed for trifling errors of the much in an opinion which is not decided and is not character mentioned. It is really laughable for law. There passages are caught up and used as if appellate courts to grant new trials for errors which they were accurate statements and authorities. they cannot say did not affect the jury? Are they They lead some lawyers astray.” For sooth, let us to guess that errors that have influenced the verdict have short opinions for fear some dullard upon
the did not influence it? A new trial is doubtless an bench or at the bar will mistake the arguments or evil, but an unjust judgment is a still greater one. the illustrations for points decided! It is important
He says that a jury is affected much“ by what may for an appellate court not only to decide right, but be called the atmosphere of the trial which cannot to satisfy the parties that their case has been fully be felt by the appellate court.” This is too true, examined and considered; and this is best accomand so much the more reason for the existence of plished by an opinion fully covering the points appellate courts which will review judgments in the made. Appeals to the highest appellate court are calm, serene atmosphere of the law, undisturbed by usually brought under the advice of able counsel. an atmosphere created by sympathy, passion or pre- Frequently a dozen or more points are argued with judice or by interested persons or able and influ- equal zeal and apparent confidence; and if a judgential counsel. Such an atmosphere, like the im- ment be affirmed without noticing them all in the palpable understanding before noticed, may play a opinion, counsel making the argument generally great part upon the trial of an action, but can have think that the omitted points were overlooked or no place in an appellate court.
not duly considered, and the result is swearing at He seems to complain that appellate courts will the court or a motion for re-argument. A thorough not disregard improper evidence received upon a discussion of a case on paper leads to accuracy of trial by a judge without a jury, and that the same examination and reasoning and conduces to correct rules of evidence are applied in equitable actions as results, Would any one advise that no opinions or in legal actions triable by a jury. Why should that mere skeleton opinions be written simply givthey not be ? If a judge trying a case without a ing results and conclusions ? Such a practice would jury received improper evidence when objected to, certainly be unsatisfactory to the bar and to suitors. his ruling shows that he considered it important Judicial opinions in this State are not often long, and material; and hence how can it be said that it and their length certainly does not contribute to did not, or may not have influenced his decision ? the law's delays. It is the careful study and examHaving decided that the evidence was pertinent ination of cases that take time. The putting the and material, can it be presumed that he afterward argument upon paper is but a small portion of the disregarded it ?
work. Thus too it is not the long opinion that He says "not merely in matters of evidence, takes the most time. It would be more laborious but upon the whole merits of the case, appellate to eliminate from an opinion every superfluous idea, courts might well take broader views than they do; every unnecessary phase and every idle word, as if and if they see, that on the whole, justice has been one were writing a treatise on logic or metaphysics. done, they might wisely disregard errors even more There is no time for that. important than pertains to evidence.” What As if advising that no opinions be written, he says would such a practice lead to ? Every appellate “the danger of attempting to give reasons for a court would have to consider and weigh the evi- conclusion is sometimes seen even in judges who dence presented to it upon paper to see whether have enjoyed a legal training." If a judge in an on the whole justice had been done; and when appellate court can give no reasons on paper for his proper evidence had been excluded or improper conclusions, so much the worse for the conclusion.
Such a judge should write no opinions, and what is Court of Appeals of the State, at the Noremher Term equally clear, should decide no cases.
of 1872, held, in Antoni v. Wright, 22 Gratt. 833, that
Virginia, in issuing her bonds in pursuance of the act We agree most heartily with what Judge Learned
of 1871, bad entered into a valid contract with the says as to limiting appeals. They are allowed now
holders of these bonds, and with all persons holding to a most absurd extent. But it is difficult to
the coupons thereof, to receive the coupons in paylimit the right of appeal. The people and the law- ment of all taxes due to the State, and that the act of yers are jealous of this right, and are averse to
March 7, 1872, so far as it conflicted with this contract, putting much limitation upon it. We are an active,
was void and of no force. The authority of this case
was recognized by the same court in Wise v. Rogers, wide-awake, litigious people, generally ready to
24 Gratt. 169; and in Clarke v. Tyler, 30 id. 134, 137, fight for our rights upon the field of battle or in the
which was decided in 1878, the court said the decision courts of law until final victory or defeat. It is the in Antoni v. Wright“ must be held to be the settled characteristic of our race, and must be taken into
law in this State."
In 1873 tbe Legislature passed still another act, account in our legislation. It is difficult to draw the line between cases which should be appealable acted in 1876, providing “ that from the interest pay.
which was modified in 1874 and substantially re-enand those which should not be. But the effort
able out of the treasury on the bonds of the State, should be made, and in that direction something whether funded or unfunded, there should be retained may be done to lessen the laws delays. So too a tax equal in amount to fifty cents on the one hun. some relief should be given to the court of appeals dred dollars of their market value, on the first day of by an increase in its working force, and then gener
April in each year, and made it the duty of every offi
cer of the Commonwealth, charged with the collec. ally there will be no delay in the administration of tion of taxes, to deduct from the matured coupons justice in this State, except what is in the nature of which might be tendered to him in payment of taxes, things inevitable. The progress which we
or other dues to the State, such tax as was then and or make in any direction in a given time depends upon legislation, so far as it relates to the deduction of the
might thereafter be imposed on the bonds." This the distance to be travelled and the obstacles to be
tax from the matured coupons of the bonds issued In the late Civil War, it took the Fed
under the Funding Act of 1871, was considered by the eral Government four years with all its resources Supreme Co of th United States in Hartman v. to put down the rebellion. There were advances Greenhow, 102 U. S. 672; and the doctrine of the court and retreats, marches and counter-marches, victories
was, that under the Funding Act of 1871, Virginia had
entered into a contract with the holders of these couand defeats, before the end was reached. So in
pons from which she could not, without their cousent, legal warfare, the obstacles in the pathway of one
be released, and that any subsequent enactment reor of the other of the litigants may be great and the quiring a tax on the bonds issued under that act to be progress may be slow. Frequently the delays are deducted from the coupons originally attached to beyond remedy and the burden of them must be
them, when tendered in payment of taxes or other
dues to the State, cannot be applied to coupons separborne. I am quite sure that they cannot in any
ated from the bonds, and held by a different owner, great measure be attributed to the judiciary.
without impairing the contract, and that such owner My thoughts upon this subject are not all ex- is entitled to a mandamus to compel the proper officer pressed, but I must stop here as a long article is to receive for their full amount the coupons so tenprobably as abhorrent to many as a long judicial
dered. The judgment of, the Supreme Court of Ap
peals of Virginia, denying a mandamus to Hartman, opinion appears to be to some.
was accordingly reversed, and the case remanded for further proceedings in accordance with this
view. THE VIRGINIA COUPON QUESTION.
The next legislation of Virginia relating to the tax
receivable coupons, authorized by the Funding Act of THE 'HE Legislature of Virginia, by the act of March 30, 1871, we have in the act of January 14, 1882, not inaptly 1871, known as the Funding Act, provided for the
spoken of as the “Coupon Killer.” The substance of issue of bonds in exchange for bonds, stocks, and in- this act, briefly stated, is the following: terest certificates of the State, and declared that the
1. That the tax-receivable coupons are to be recoupons annexed thereto shall be payable to bearer,
ceived by tax-collectors for identification and verifi. and also “receivable at and after maturity for all
cation. taxes, debts, dues, aud demands due the State.” Un
2. That all taxes due to the State are to be paid in der the provisions of this act about $30,000,000 of old
coin, legal-tender notes, or National bank bills, and in bonds were surrendered by the creditors of the State,
default of such payment, to be collected as other deand in place of them these creditors received about linquent taxes are collected. $20,000,000 of now bonds. The act, when thus carried 3. That the tax payer having offered the coupons in into effect, constituted a contract between the State
payment of his taxes, and having been compelled to and these creditors and all subsequent holders of the
make the payment in money, may then if he chooses, new bouds and the coupons thereof.
bring a suit to test the genuineness of his coupons, On the 7th of March, 1872, which was less than a
and that if the suit is decided in his favor, the coupons year after the passage of the Funding Act, the Legis
shall be accepted in payment of his taxes, and the lature passed another act, declaring that it shall “not money paid refunded to him out of the treasury of be lawful for the officers charged with the collection
the State. of taxes or other demands of the State,” then due or 4. That if the tax payer applies for a mandamus to which might thereafter become due, "to receive in compel the acceptance of the tax-receivable coupons. payment thereof any thing else than gold or silver substantially the same proces as to a suit shall be pur coin, United States treasury potes, or notes of the sued, and that the mandamus shall be issued only National banks of the United States." The Supreme after the genuineness of the coupons offered shall have
been judicially ascertained by a formal trial before a majority of the court on this point. They maintained court and jury.
that the remedy was so changed by the act of January This act was supplemented by the act of January 26, 14, 1882, as to violate the contract made under the 1882, providing that the several tax collectors of Vir- Funding Act of 1871; and with all due respect to the ginia “shall receive, in discharge of the taxes, license majority, their view seems the better view. The right taxes, and other dues, gold, silver, United States treas- of the coupon holder to have his coupons “received ury notes, National bank currency, and nothing else,” for taxes when offered," as provided for under the and further providing that “no writ for the preven- Funding Act of 1871, and his right to have them so retion of any revenue claim, or to hinder or delay the ceived only after they have been reduced to a judgcollection of the same, shall in any wise issue, either ment by a lawsuit at the expense of the coupon injunction, supersedeas, mandamus, prohibition, or holder, as provided for uuder the act of January 14, any otber writ or process wbatever." The latter act 1882, are very different things as to the value of these was amended by the act of March 13, 1884, declaring coupons to the holder, and as to the obvious intention that “no action of trespass or trespass on the case and understanding of the parties to the contract when shall be brought or maintained against any collecting it was made. Common sense gives to the contract the officer for levying upon the property of any tax payer former and not the latter meaning; and if so, then a who may have tendered in payment, in whole or in law establishing the latter meaning impairs the obligapart, any coupon or paper purporting to be a coupon tion of the contract in respect to the remedy for its cut from the bonds of this State for such taxes, and enforcement, especially when the remedy by a mandawho shall refuse to pay his taxes in gold, silver, United mus is excluded altogether, as was done by the act of States treasury notes, or national bank notes.” The January 26, 1882, and the act of April 7, 1882. The react of April 7, 1882, declared that “no writ of manda- ceivability of the coupons, as secured by the Funding mus, probibition, or any other summary process what- Act, is so hampered and embarrassed by subsequent ever shall issue," from the Supreme Court of Appeals, legislation as to be substantially destroyed; and this “in any case of the collection or the attempt to collect was evidently the intention of the legislation. revenue, or compel the collecting officers to receive Mr. Justice Matthews speaking for the court in any thing in the payments of taxes other than as pro- Poindexter v. Greenhow, 5 Sup. Ct. Rep. 903, 909, and vided” in the act of January 26, 1882.
referring to the case of Antoni v. Greenhow, supra, Andrew Antoni, a tax payer, on the 20th of March,
said: 1882, offered in payment of his taxes, a tax-receivable “That was a case in which it was sought, by mandacoupon to the treasurer of the city of Richmond in mus, specifically to enforce the contract of the State Virginia; aud the acceptance thereof for this purpose with the coupon holder, by compelling, by affirmative being refused, he on the 28th of March, petitioned the action and process of law, the collector actually to reSupreme Court of Appeals for a mandamus to compel ceive the coupons tendered in satisfaction of taxes. It such acceptance. The members of the court, upon left unaffected the right of the coupon holder and taxthe hearing of the case, were equally divided in opin- payer, after his tender had been unlawfully refused to ion; and hence the writ was denied. Antoni then, by stand upon his contract and tbe law in the defense of writ of error, carried the judgment to the Supreme his rights, both of person and property, against all unCourt of the United States; and this court in Antoni lawful assaults and seizures. In the former he was an v. Greenhow, 107 U. S. 679, affirmed the judgment of the actor, seeking affirmative relief to compel the specific court below. The single question decided by the performance of the contract. In the latter he is a decourt was whether the remedy for the enforcement of fendant, passively resting on his rights, and resisting the contract with the coupon holder, as it existed only demands and exactions sought to be enforced when the contract was made, was so changed by the against him in denial of them. He has himself, in all “coupon killing act of January 14, 1882, as to violate things, performed the contract on his part, and obeyed the provision of the Constitution which declares that the law, and simply insists that if more is legally exno State shall pass any “law impairing the obligation acted and taken from him, he shall have the remedy of contracts;” and the majority of the court were of which the law gives to every other citizen, not himself opinion that no such change had been made in the in default, against the wrong-doer, who under color remedy, and hence sustained the judgment of the of law, but without law, disturbs or dispossesses him.” lower court in refusing to issue a mandamus.
The disclaimers of Chief Justice Waite, in stating Chief Justice Waite in stating the opinion of the the opinion of the court in Antoni v. Greenhow, supra, court, said expressly that “the right of the coupon as to what was not decided in that case, and the speciholder is to have his coupon received for taxes when fic statement as to the only point decided, undoubtoffered," and that the question before the court was edly furnished the suggestion which subsequently led “not as to that right, but as to the remedy the holder to several suits in Virginia in relation to the coupon has for its enforcement when denied.” He said again: question, some of these suits being brought in the “The question presented by this record is not whether courts of the State, and others in the Circuit Court of the tax collector is bound in law to receive the cou- the United States. One of these suits was that of the pon, notwithstanding the legislation which, on its Baltimore & Ohio R. Co. v. Allen, 17 Fed. Rep. 171. face, prohibits him from doing so, nor whether, if he The company, in this case, after duly tendering the refuses to take the coupon and proceeds with the col- tax-receivable coupons in payment of its taxes due to lection of the tax by force, he can be made personally the State of Virginia, and after the refusal of the tax responsible in damages for what he does, but whether collector to receive them for this purpose, applied to the obligation of the contract has been impaired by the court for an injunction to restrain the latter from the changes which have been made in the remedies for the seizure and sale of its property in enforcing the its euforcement in case he refuses to accept the cou- payment of the taxes claimed by the State. Judge pons. We decide only the question which is actually Bond referring to the language of the Supreme Court before us." The remedy under the act of January 14, in Antoni v. Greenhow, supra, to the effect that "the 1882, though not identical with the one existing when right of the coupon holder is to have his coupon rethe contract was made, was, as the Chief justice said, ceived for taxes when offered,” and holding that the "substantially equivalent to that in force when the complainant in this case had no adequate remedy at coupons were issued."
law, and further holding that the suit was not one Messrs. Justices Field and Harlan, in their dissent- against the State of Virginia, granted the application ing opinions given in this case, took issue with the and ordered the injunction to be issued.
Other suits were brought, involving questions not
Amendment to the Constitution, which was urged by decided by the Supreme Court of the United States in counsel on one side, and also by the members of the Antoni v. Greenhow, supra. One of these suits, court who dissented from the opinion of the majorbrought in the Hustings Court of the city of Rich-ity. mond by Poiudexter against Greenhow, was an action The position is by no means a new doctrine in the of detinue for personal property, distrained by the de- history of the Supreme Court of the United States. fendant for delinquent taxes, in the payment of which As remarked by Mr. Justice Matthews, it has been rethe plaintiff had duly tendered coupons cut from peatedly held by that court “ that whenever, in a conbonds issued by the State of Virginia under the Fund- troversy between parties to a suit, of which these (the ing Act of March 30, 1871. The Hustings Court de- Federal] courts have jurisdiction, the question arises cided the suit in favor of the defendant; and since upon the validity of law by a State impairing the oblithat court was the highest court of the State to which gation of its contract, the jurisdiction is not thereby the cause could be taken, and since the validity of a ousted, but must be exercised with whatever legal conState law was drawn in question on the ground of its sequences to the rights of the litigants may be result incompatibility with the Constitution of the United of the determination." Fletcher v. Peck, 6 Cranch, 87; States, the case was, by writ of error, removed to the New Jersey v. Wilson, ? id. 164; Green y. Biddle, 8 Supreme Court of the United States. This court, in Wheat. 1, 84; Providence Bank v. Billings, 4 Pet. 514; the opinion delivered by Mr. Justice Matthews in Woodruff v. Trapnall, 10 How. 190; Jefferson Branch Poindexter y. Greenhow, 5 Sup. Ct. Rep. 903, consid- Bank v. Skelly, 1 Black, 436; and Wold v. New Orered the merits of this case at large, and laid down leans, 103 U. S. 358. These cases were decided after principles decisive not only of this case, but of several the adoption of the Eleventh Amendment. other cases before the court, coming from the State The Supreme Court of the United States, in Osborn of Virginia, and relating to the coupon question. v. Bank of the United States, 9 Wheat. 738, held that
The starting point of the deliverance by Mr. Justice although a State canuot in a Federal court be sued by Matthews is the fundamental fact that Virginia had, a citizen of another State, and thus be made a defend. under the Funding Act of 1871, entered into a con- ant party on the record, an injunction would nevertract with the holders of the bonds and annexed cou- theless lie from such a court against a State officer to pons issued in pursuance of this act, which contract prevent him from carrying into effect an unconstitumade the coupons “receivable at and after maturity tional State law, and that the suit against Osborn, for all taxes, debts, dues and demands due the State," brought in a Circuit Court of the United States, was and constituted a self-executing remedy in the hands not a suit against the State of Ohio, of which State he of the tax payer, who in virtue of the contract had the was an officer, although the State was interested in right to tender them in payment of his taxes, just as if the suit, and, through its Legislature, had enacted the they were money, and who, having made such a ten- law under which Osborn was acting. Chief Justice der, had in legal effect paid his taxes, so far as any
Marshall said in this case: subsequent proceedings to enforce payment are con- “ If the State of Obio could have been made a party cerned. This contract being made, cannot by the defendant, it can scarcely be denied that this would State be set aside or repealed in consistency with the have been a strong case for an injunction. The obConstitution of the United States; and any law sub-jection is that as the real party cannot be brougbt sequently enacted by the Legislature of Virginia, before the court suit cannot be sustained whose effect is to impair or violate the obligation of against the agents of that party; and cases have been this contract, is not law at all, and can furnish no im- cited to show that a Court of Chancery will not make munity or protection to a State officer who acts under a decree unless all those who are substantially interit, since it is absolutely without any authority what- ested be made parties to the suit. This is certainly
This sweeps away the act of January 26, 1882, true where it is in the power of the plaintiff to mak? also the amendatory act of March 13, 1884, and at least them parties; but if the person who is the real princiso much of the act of January 14, 1882, as requires all pal—the person who is the true source of the mischief, taxes due to the State to be paid in coin, legal tender by whose power and for whose advantage it is donenotes, or National bank notes. Such legislation was be himself above the law, be exempt from all judicial held by the court to impair the obligation of the con- process, it would be subversive of the best established tract with the coupon holder, and hence to be null and principles to say that the laws could not afford the same void.
remedies against the agent employed in doing the The legal consequence of these doctrines, as stated wrong which they would afford against him could bis by Mr. Justice Matthews, is that an action or suit principal be joined in the suit." brought by a tax payer, who has duly tendered the tax. The doctrines adopted in this case were reaffirmed receivable coupons in payment of his taxes, against the in Davis v. Gray, 16 Wall. 203, to the following efperson who, under the color of office as a tax collector, fect: and acting in the enforcement of a void law passed by 1. That a Circuit Court of the United States, in a the Legislature of the State and after having refused to proper case in equity, may enjoin a State officer from receive the coupons so tendered, proceeds to enforce the executing a State law in conflict with the Constitution collection of such taxes by the seizure and sale of the or a statute of the United States, when such execution property of the plaintiff, is an action or suit against will violate the rights of the complainant. him personally as a wrong-doer, and not against the 2. That where a State is concerned the State State, within the meaning of the Eleventh Amend- should be made a party if it can be done, and that if ment to the Constitution of the United States; and this cannot be done, that is a sufficient reason for the further, that the defendant tax collector, being thus omission to do it, and the case may proceed to a desued as a wrong-doer, aud seeking to substitute the cree against her officers in all respects as if she were a State in his place, and justify his action by its author- party to the record. ity, cannot rest on the bare assertion of such a defense, 3. That in deciding who are parties to the suit, the but must establish it by producing a valid law of the court will not look beyond the record, and that makState which constitutes his commission as its agent | ing a State officer a party does not make the State a and a warrant for his act. This position was taken in party, although her law may prompt his action, and answer to the argument that a suit against the tax she may stand behind him as the real party in intercollector is necessarily a suit against the State of Vir- est. ginia, and therefore excluded by the Eleventh Mr. Justice Miller, in stating the opinion of the court
in Cunningham v. Macon & Bruns. R. Co., 109 U. S. 446, ercise authority which it does not possess, and cannot specified several classes of cases which had been deci. therefore lawfully exercise. No State statute, howded by the court, and in regard to the second class ever incompatible with the Constitution of the United said: “Another class of cases is where au individual is States, could, upon any other principle, be, by a Fedesued in tort for some act injurious to another in regard ral court, prevented from being carried into effect by to person or property, to which his defense is that he State officers; and no remedy in such a court would acted under the orders of the government. In se available to the party whose rights might be incases he is not sued as or because he is the officer of vaded by the execution of such a statute. the government, but as an individual, and the court is The principles thus set forth by Mr. Justice Matnot ousted of jurisdiction because he asserts authority thews at large in Poindexter v. Greenhow, were by as such officer, To make out his defense he must the court applied as decisive in the case of White v. show that his authority was sufficient in law to pro- Greenhow, in that of Chafin v. Taylor, and in that of tect him." Mitchell v. Harmony, 13 How. 115; Bates Allen v. Baltimore & Ohio R. Co., 5 Sup. Ct. Rep. 923– v. Clark, 95 U. S. 204; Meigs v. McClung, 9 Cranch, 11; 428. It was held in the last of these cases that the Wilcox v. Jackson, 13 Pet. 498; Brown v. Huger, 21 remedy by injunction to prevent the collection of How. 305; and Grisar v. McDowell, 6 Wall. 363. These taxes by distraint upon the rolling stock, machinery, cases were referred to as embodying the principle cars, engines and other property of railroad corporastated.
tions, after a tender of payment in tax-receivable couTo the same effect, so far as the pr iple is con- pons, is sanctioned by repeated decisions of the Sucerned, is the case of United States v. Lee, 106 U. S. preme Court, and has become common and unques196. The original action in this case was one in eject- tioned practice in similar cases, where exemptions ment, brought against the defendants, who were in bave been claimed in virtue of the Constitution of the possession of certain lands as officers of the United United States, the ground of the jurisdiction being States, to which the plaintiff in the court below that there is no adequate remedy at law. The ruling claimed the lawful title, of which title, as the Supreme of Judge Bond in that case, as reported in 17 Fed. Rep. Court held, he had not been legally dispossessed. It 171, was affirmed. was conceded by the court that the United States In Marye v. Parsons, 5 Sup. Ct. Rep. 932, the court could not, without their consent, be lawfully sued; held, in the opinion delivered by Mr. Justice Matand at the same time it was held that this doctrine thews, that the contract right of a coupon holder unhas no application to officers and agents of the United der the Virginia act of March 30, 1871, whereby his States who, when as such holding for publio uses pos- coupons are receivable in payment of taxes, can be exsession of property, are sued therefor by a person ercised only by a tax payer, and that a bill in equity claiming to be the owner thereof or entitled thereto, for an injunction to restrain tax collectors from refusand that the lawfulness of that possession and the ing to receive them when tendered in payment of right or title of the United States to the property may taxes will not lie in behalf of a coupon holder who does by a court.of competent jurisdiction be the subject- not allege himself to be also a tax payer. Such a bill matter of inquiry, and adjudged accordingly. The calls for a decree declaring merely an abstract right, court affirmed the judgment giving the property to and does not show any breach of the contract or other Lee, on the ground that although it was held by offi- ground of relief. cers of the United States as such, who were the par- These cases, especially in view of the principles ties sued, still the lawful title was not in the United adopted by the Supreme Court of the United States States, but in Lee, and hence these officers did not in determining them, would seem to settle the Virginia hold the property by any legal authority. United coupon question, so far as it can be settled by adStates v. Peters, 5 Cranch, 115; Meigs v. McClung's judication. The tax-receivable coupons are to all inLessee, 9 id. 11; Wilcox v. Jackson, 13 Pet. 498; Geor- tents and purposes a legal tender for the payment of gia v. Madrazo, 1 id. 110; Osborn v. Bank of the United. taxes due to the State of Virginia; and when tendered States, 9 Wheat. 738; Grisar v. McDowell, 6 Wall. 363; for this purpose by the tax payer to the proper officer Brown v. Huger, 21 How. 305; Davis y. Gray, 16 Wall. of the State, the taxes are in legal effect paid, whether 204; The Siren, 7 id. 152; and The Davis, 10 id. 15. the coupons are received or not, so far as any subseThese cases were cited by Mr. Justice Miller in stating quent proceedings to enforce payment are concerned. and sustaining the opinion of the court.
Any such proceedings on the part of the tax collector It is not true then that a suit against a State officer will render him personally responsible as a trespasser is necessarily a suit against the State of which he is an and a wrong-doer; and no law of the State can proofficer within the meaning of the Eleventh Amend- tect him against this liability. All existing laws of the ment to the Constitution. If being an officer of a State of Virginia, inconsistent with the contract made State, he is acting under color of an unconstitutional under the Funding Act of 1871, are simply a dead letState law, then in legal contemplation he is acting
ter, and of no force. Any future legislation of the under no lawful authority whatever; and this makes State, if having the same character, would be equally him a wrong-doer and a trespasser, who may be sued, without authority. Whatever the people of Virginia if in so doing he invades the rights of another party.
may think or do in regard to the matter, such is the This is precisely the predicament in which the deliv. position of the Supreme Court of the United States. erance of Mr. Justice Matthews, speaking for the Judge Bond, of the United States Circuit Court, as court, places the tax collector of Virginia, who have reported in the secular papers, has recently rendered ing refused to receive the tax-receivable coupons, pro
a decision which gives practical effect to the opinion vided for in the Funding Act of 1871, in discharge of and order of the Supreme Court. His decree declared the tax payer's taxes due to the State, proceeds to en- that when a tax payer tenders the tax-receivable couforce payment by the seizure and sale of the tax pay. pons for his taxes due to the State of Virginia, he has er's property. Such tax payer may bring an action thereby paid his taxes; that if the coupons be refused, against him as a trespasser acting without any author. the tax payer may deposit them in court, and that the ity of law; and in so doing he does not bring the clerk thereof shall give him a receipt, certifying that action against the State of Virginia. Any other rul- by order of the court his taxes are paid ; that the coling would leave an aggrieved party without any rem
lector of taxes is forever enjoined from levying upon edy in a Federal court in any case in which a State the tax payer's property, and from returning said government should, through its officers, assume to ex- property as delinquent for taxes; and that the colleo