# Marye v. Parsons/Dissent Bradley

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* Dissenting Opinion Bradley
United States Supreme Court
114 U.S. 325
Marye v. Parsons
BRADLEY, J., dissenting.
The chief justice, and Justices MILLER, GRAY, and myself, dissent from the opinions and judgments of the majority of the court in which they sustain the claims of the holders of coupons against the state of Virginia, and I have been requested to state the grounds on which our dissent is based. And, first, those which apply to the case of the Baltimore & Ohio Railroad Company. This company is a corporation of the state of Maryland, and operates, as lessee, certain railroads situated in Virginia. It filed a bill in equity in the circuit court of the United States for the Western district of Virginia, alleging a tender of coupons in payment of the taxes due upon the railroads in its possession, and praying for a decree declaring that such tender (with a deposit of the coupons in court amounted to payment, and that the proceedings of the auditor in imposing a penal assessment for pretended non-payment of the taxes were void, a d that an injunction be issued to restrain the treasurer from seizing or selling any of the property of the company for the said taxes.
The fundamental ground of our dissent is that this proceeding, and all the other proceedings on these coupons brought here for our review, are virtually suits against the state of Virginia to compel a specific performance by the state of her agreement to receive the said coupons in payment of all taxes, dues, and demands. However just such a proceeding may seem in the abstract, or however willing courts might be to sustain it if it were constitutional, yet, looking at the case as it really is, we regard it as directly repugnant to the eleventh amendment of the constitution, 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 any one of the United States, by citizens of another state, or by citizens or subjects of any foreign state.'
The counsel for the bondholders press upon our attention that provision of the constitution which declares that no state shall pass any law impairing the obligation of a contract, and insist that the laws passed by the legislature of Virginia forbidding the receipt of coupons for taxes, since the passage of the act of 1871 by which they were made receivable, are unconstitutional and absolutely void, and that no officer or tax collector of the state is bound to regard, but, on the contrary, each is bound to disregard them. So that we have one provision of the constitution set up against the other, and are asked to enforce that relating to contracts by regarding the individual officers as the real parties proceeded against, and ignoring the fact that, in the matter of receiving coupons in payment of taxes, the officers only represent the state. By this technical device it is supposed that the eleventh amendment may be evaded. In our opinion this is not a sound or fair interpretation of the constitution. If the contract clause and the eleventh amendment come into conflict, the latter has paramount force. It was adopted as an amendment to the constitution, and operates as an amendment of every part of the constitution to which it is at any time found to be repugnant. Every amendment of a law or constitution revokes, alters, or adds something. It is the last declared will of the law-maker, and has paramount force and effect. The states became dissatisfied with certain parts of the constitution as construed by the courts, whereby, in a manner not anticipated, they were subjected to be dragged into court like a common delinquent at the suit of individuals. They demanded that this should be changed, and it was changed by the eleventh amendment. The language of the constitution was not changed, but it became subject and subordinate to the paramount declaration of the amendment. The constitution still declares that no state shall pass any law impairing the obligation of a contract; but the effect of the amendment is that, even if a state should pass a law impairing the validity of its own contract, no redress can be had for the enforcement thereof against the state in the federal courts. In other words, in consequence of the amendment, no state can be coerced into a fulfillment of its contracts or other obligations to individuals by the instrumentality of the federal judiciary. It is true, it cannot proceed against them contrary to its contract; but, on the other hand, it cannot be proceeded against on its contract. All those who deal with a state have full notice of this fundamental condition. They know, or are bound to know, that they must depend upon the faith of the state for the performance of its contracts, just as if no federal constitution existed, and cannot resort to compulsion unless the state chooses to permit itself to be sued.
Moreover, the eleventh amendment is not intended as a mere formula of words, to be slurred over by subtle methods of interpretation, so as to give it a iteral compliance, without regarding its substantial meaning and purpose. It is a grave and solemn condition, exacted by sovereign states, for the purpose of preserving and vindicating their sovereign right to deal with their creditors and others propounding claims against them, according to their own views of what may be required by public faith and the necessities of the body politic. We have no right, if we were disposed, to fritter away the substance of this solemn stipulation by any neat and skillful manipulation of its words. We are bound to give it its full and substantial meaning and effect. It is only thus that all public instruments should be construed.
Now, what is the object of all this litigation which fills our courts in reference to the Virginia bonds and coupons, but an attempt, through the medium of the federal courts, to coerce the state of Virginia into a fulfillment of her contract? To enforce a specific performance of her agreement? It is nothing less. That is the object of the bill in the case of the Baltimore & Ohio Railroad Company. That is the object of the bill of Parsons against the state auditor and others. That is also the object of those actions of detinue and trespass which are brought against the collectors of Richmond and other places. Injunctions are sought, mandamuses are sought, damages are sought, for the sole purpose of enforcing a specific performance of the engagement made by the state, by the act of 1871, to receive the coupons of its bonds issued under that act in payment of taxes and other dues to the state.
There is no question about the validity of the taxes. They are admittedly due. The officer is entitled to collect them; his authority is undisputed. The coupons are tendered in payment, not as money, for they have no quality of money, but as a set-off which, as is insisted, the state has agreed to allow. The tax-payer stands on this agreement. That is the situation; and that is the whole of it. He stands on the agreement, and seeks to enforce it. All suits undertaken for this end are, in truth and reality, suits against the state, to compel a compliance with its agreement. A set-off is nothing but a crossaction, and can no more be enforced against a state, without its consent, than a direct action can be. When set-offs are allowed against the sovereign, it is always by virtue of some express statute. It is argued, however, that these coupons are not set-offs, but cash. How it can be pretended that they are cash it is difficult to comprehend. To regard them as cash would make them unconstitutional and void under that clause of the constitution which prohibits any state from emitting bills of credit. But it is insisted that, if not cash, the state agreed that they should be received as cash. Then it is the agreement which is relied on; and, as before said, it is the performance of this agreement which is sought to be enforced.
Another argument made use of to show that the coupons are not set-offs, is that, by virtue of the agreement to receive them in payment, they inhere in the claim for taxes as a ground of extinguishment, and not as a distinct counter-demand. This cannot be true, because taxes imposed by the state, or by its authority, are pure and unmixed duties, accruing year by year for the public service, without any relation to, or dependence upon, collateral obligations. Whether the tax-payer has or has not any coupons is an accidental circumstance in no way affecting his taxes. If he has them, and does not tender them, his taxes must be paid; if he has them, and does tender them, they can only be tendered by way of set-off; for, as we have seen, they have no necessary connection with or relation to the taxes until they are so tendered. The coupons, then, are tendered, and the tax collector declines to receive them. The state does not permit him to receive them. By subsequent legislation it has declared that the taxes must be paid in money, and that the tax collector must receive nothin else in payment, and that coupons, if offered, must be investigated in a juridical way to ascertain their genuineness before they will be paid, and when so ascertained, the provision for paying them is ample. The officers have no power but what the state gives them. They act for and on behalf of the state, and in no other way. To sue them, therefore, because they will not receive the coupons in payment, is virtually to sue the state. The whole object is to coerce the state. To say otherwise is to talk only for effect, without regard to the truth of things.
If the taxes were not due, or were unconstitutional, and the collector should attempt to collect them, by seizing property or otherwise, it would be a different thing. There would then be an invasion of the citizen's property without lawful authority. That would be a trespass on the part of the officer for which he would be properly liable in suit. So, if the tax-payer should tender the amount of his tax in lawful money, and the collector should refuse it, and should proceed to distrain for the tax, then he would also be a trespasser.
But neither of these things is this case. The tax is due undisputedly due; no money is tendered; the tax-payer only offers to set off the coupons, which are nothing but due-bills of the state, and pleads the state's collateral agreement to receive them. This is not money, and bears no resemblance to money. It is simply a promise. The state, for reasons of its own, declines to comply with its agreement in mode and form, and forbids its officers to receive the coupons in payment of taxes. The tax-payer insists that the state shall comply with its agreement. All the proceedings instituted by him to enforce the receipt of the coupons, or to obtain redress against the collector for not receiving them, or for proceeding to collect the tax, have that object alone in view-to compel the state to fulfill its agreement. It is idle to say that the proceeding is only against the officers. That is a mere pretense. The real object is to coerce the state through its officers; to compel a specific performance by the state of its agreement. It all comes back to this.
But it is said that it is not the state, but the government of the state, which declines to receive the coupons, contrary to engagement. It is said that the government does not represent the state when it does an unconstitutional act, or passes an unconstitutional law. While this may be averred, (as it was averred in Texas v. White, 7 Wall. 700,) when the government of a state attempts to force the state from its constitutional relations with the United States, and to produce a disruption of the fundamental bonds of the national compact; and while in such a case it may be admissible to say that the government of the state has exercised a usurped authority,-this mode of speech is not admissible in ordinary cases of legislation and public administration. A state can only act by and through its constituted authorities, and it is represented by them in all the ordinary exhibitions of sovereign power. It may act wrongly; it may act unconstitutionally; but to say that it is not the state that acts is to make a misuse of terms, and tends to confound all just distinctions. It also tends, in our judgment, to inculcate the dangerous doctrine that the government may be treated and resisted as a usurpation whenever the citizen, in the exercise of his private judgment, deems its acts to be unconstitutional.
But, then, it will be asked, has the citizen no redress against the unconstitutional acts or laws of the state? Certainly he has. There is no difficulty on the subject. Whenever his life, liberty, or property is threatened, assailed, or invaded by unconstitutional acts, or by an attempt to execute unconstitutional laws, he may defend himself, in every proper way, by habeas corpus, by defense to prosecutions, by actions brought on his own behalf, by injunction, by mandamus. Any one of these modes of redress suitable to his case, is open to him. A citizen cannot, in any way, be harassed, injured, or destroyed by unconstitutional laws without having some legal means of resistance or redress. But this is where the state, or its officers, moves against him. The right to all these means of protection and redress against unconstitutional oppression and exaction is a very different thing from the right to coerce the state into a fulfillment of its contracts. The one is an indefeasible right, a right which cannot be taken away; the other is never a right, but may or may not be conceded by the state; and, if conceded, may be conceded on such terms as the state chooses to impose.
All the cases that are cited from the books in which redress has been afforded to individuals by the courts against state action, are cases arising out of the first class, and not out of the second; cases of state aggression, and not of refusal to fulfill obligations. The case of Osborne v. U.S. Bank, 9 Wheat. 738, was of that class; so was that of Dartmouth College v. Woodward, 4 Wheat. 518; so was that of New Jersey v. Wilson, 7 Cranch, 165. So, if looked at carefully, were those of Davis v. Gray, 16 Wall. 203, and Board of Liquidation v. McComb, 92 U.S. 531; although these last cases approach nearer to suits against a state than any others which have received the sanction of this court. In all these cases the state has attempted to do some unconstitutional act, injurious to the party, or some act which it had entered into a contract not to do; and redress was sought against such aggressive act; they, none of them, exhibit the case of a state declining to pay a debt or to perform an obligation, and the party seeking to enforce its performance by judicial process. As for the great mass of cases in which the remedies of mandamus and injunction have been sanctioned, to compel state officers to do, or refrain from doing, some act in which the plaintiff had an interest, they have generally been cases in which the law made it the duty of the officers to do the act commanded, or not to do the act forbidden. Those of a different character, as where a remedy has been taken away, have been purely cases of demands by one individual against another, and not of an individual against the state. The present cases differ toto coelo from any of these. They are attempts to coerce a state by judicial proceedings; as before stated, they are that, and nothing else. It is useless to attempt to deceive ourselves by an adroit use of words, or by a train of metaphysical reasoning. We cannot, in that way, change the nature of things.
This is the first time, we believe, since the eleventh amendment was adopted, in which a state has been coerced by judicial proceedings at the suit of individuals in the federal courts. That this is such a case, seems one of the plainest proposition that can be stated.
As the observations already made apply equally to actions against the officers of the state brought to recover damages, or to recover property taken for taxes, as to bills for injunction and applications for mandamus, only a few words are necessary to be added in reference to the suit of Poindexter v. Greenhow, in which the first opinion was read, and to the trespass cases similarly situated. Those are actions brought, not by citizens of another state, but by citizens of Virginia herself, in her own courts; and the highest court of Virginia has adjudged them to be untenable. Our jurisdiction is invoked to reverse this decision, and to sustain the actions.
The eleventh amendment, it is true, does not prohibit the extension of the judicial power of the United States to suits prosecuted against a state by its own citizens. But the evident reason of this is that the judicial power was not granted to the United States by the original constitution in such cases; hence, as it was not granted, it was not deemed necessary to prohibit it. It was evidently supposed that the ontrol of all litigation against a state by its own citizens was in its own power, among that mass of rights which was reserved to the states and the people. It would be very strange to say that, although a state cannot, in any case, be sued by a citizen of another state since the adoption of the eleventh amendment, yet, in a case arising under the constitution and laws of the United States, it may be sued by its own citizens. This would be to deprive the state, with regard to its own citizens, of its sovereign right of exemption from suit.
It seems to us that the absurdity of this proposition is its sufficient answer. Unless the state chooses to allow itself to be sued it cannot be sued. It has this prerogative if no other. It is admitted, in point of form, that it cannot be sued by the citizens of other states, or of foreign states, because of the eleventh amendment. The whole argument of the opinions of the majority of the court is directed to the object of showing that the state is not sued in the suits under consideration. We do not remember that it is anywhere contended that the state can be sued by its own citizens, against its own law, merely because the eleventh emendment does not in terms extend to that case. In our judgment none of these suits can be maintained, for the reason that they are, in substance and effect, suits against the state of Virginia.
We have not thought it necessary or proper to make any remarks on the moral aspects of the case. If Virginia or any other state has the prerogative of exemption from judicial prosecution, and of determining her own public policy with regard to the mode of redeeming her obligations, it is not for this court, when considering the question of her constitutional rights, to pass any judgment upon the propriety of her conduct on the one side or on the other.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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