US SUPREME COURT DECISIONS

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 chanrobles.com-red

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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 chanrobles.com-red

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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. chanrobles.com-red

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