# De Saussure v. Gaillard/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
127 U.S. 216
De Saussure v. Gaillard
This action is not brought against the defendant in his individual capacity for a trespass or wrong alleged to have been committed by him as a natura; person upon the property or personal rights of the plaintiff; it is brought against him in his official capacity as treasurer of the county of Charleston, to recover judgment for a sum of money voluntarily paid by the plaintiff, though under protest, demanded and received by the defendant in his official capacity, contrary, as the plaintiff alleges, to law. The judgment sought is not a personal judgment against the defendant, but for a judicial declaration that the money paid was wrongfully and illegally collected, and ought to be refunded in order that a certificate of record thereof may be issued accordingly, to the end, that the amount might be repaid out of the state treasury. The action is founded expressly on the provisions of the act of the general assembly of the state of South Carolina, approved December 24, 1878, entitled 'An act to facilitate the collection of taxes.' The first section of that act provides 'that in all cases in which any state, county, or other taxes are now or shall hereafter be charged upon the books of any county treasurer of the state against any person, and such treasurer shall claim the payment of the taxes so charged, or shall take any step or proceeding to collect the same, the person against whom such taxes are charged, or against whom such step or proceeding shall be taken, shall, if he conceives the same to be unjust or illegal for any cause, pay the said taxes notwithstanding, under protest, in such funds and moneys as the said county treasurer shall be authorized to receive by the act of the general assembly levying the same; and upon such payment being made the said county treasurer shall pay the taxes so collected into the state treasury, giving notice at the time to the comptroller general that the payment was made under protest; and the person so paying said taxes may at any time within thirty days after making such payment, but not afterwards, bring an action against the said county treasurer for the recovery thereof in the court of common pleas for the county in which such taxes are payable; and if it be determined in said action that such taxes were wrongfully or illegally collected, for any reason going to the merits, then the court before whom the case is tried shall certify a record that the same were wrongfully collected, and ought to be refunded; and thereupon the comptroller general shall issue his warrant for the refunding of the taxes so paid, which shall be paid in preference to other claims against the treasury: provided, that the county treasurers shall be required to receive jury and witness tik ets for attendance upon the circuit courts of the state receivable for taxes due the county in which the said services are rendered.' The section of the act prohibits any other remedy 'in any case of the illegal or wrongful collection of taxes or attempt to collect taxes, or attempt to collect taxes in funds or moneys which the county treasurer shall be authorized to receive under the act of the general assembly levying the same, being other than such as the person charged with said taxes may tender or claim the right to pay, than that provided in section 1 of this act.' It expressly provides that 'no writ of mandamus shall be granted or issued from any court, or by the judge of any court, directing or compelling the reception for taxes of any funds, currency, or bank bills not authorized to be received for such taxes by the act of the general assembly levying the same,' and directs that 'no writ, order, or process of any kind whatsoever, staying or preventing any officer of the state charged with a duty in the collection of taxes from taking any step or proceeding in the collection of any tax, whether such tax is legally due or not, shall in any case be granted by any court, or the judge of any court, but in all cases whatsoever the person against whom any taxes shall stand charged upon the books of the county treasurer shall be required to pay the same in such funds and moneys as the said county treasurer shall be authorized to receive by the act of the general assembly levying the said taxes, in manner and form as above provided, and thereupon shall have his remedy under the provisions of the first section of this act, and in no other manner.' The third section of the act is as follows: 'That in all cases in which any person against whom any taxes stand charged upon the books of any county treasurer of the state has heretofore tendered in payment of the same any funds, currency, or bank bills, other than such as the said treasurer was authorized to receive by the act of the general assembly levying said taxes, the said treasurer shall receive from such person the said taxes without penalty in funds or moneys authorized to be received by the act of the general assembly levying the same: provided, that such taxes shall be so paid within sixty days from the passage of this act; and any person so paying the same may do so under protest, and thereupon shall be entitled to all the benefits of the remedy provided in section 1 of this act.'
The supreme court of South Carolina, in rendering the judgment now under review, (21 S.C.. 560,) referred in its opinion to the legislation of the state on the subject of its bonded indebtedness, an abstract of which is given in the pladings, beginning with the joint resolution adopted June 8, 1877, and declared that it 'was manifestly designed to ascertain judicially, by the rules and principles of law which regulate contracts between individuals, what was the valid debt of the state, and to make ample provision for the prompt and punctual payment of the interest on the debt so ascertained.' After tracing the history of this legislation, and of the judicial and other proceedings taken thereunder, the opinion of the supreme court of South Carolina proceeds as follows: 'In pursuance of these provisions, a very large amount of the original consolidation bonds, which were colored green, and are usually designated as 'green bonds' or 'green consols,' were exchanged for the new consolidation bonds, colored brown, and are usually designated as 'brown bonds' or 'brown consols,' and represent the valid, unquestioned debt of the state, the coupons on which are received for taxes or are premptly paid on presentation. But as it was impossible to tell whether a 'green bond' represented in whole or in part, and, if so, what part, any portion of the valid debt of the state without an examination of the records of the office of the treasurer of the state, where the various reports of the special commissioner above mentioned wee filed, the various county treasurers of the state are not allowed to receive the coupons of the 'green bonds' in payment of taxes until they have been examined, and any invalidity which they may contain eliminated, and the valid portion converted into 'brown bonds.' It seems, therefore, that the scope and effect of this legislation was not to impair the obligation of any contract entered into by the state with its bondholders, whereby the state had agreed to receive the coupons of certain bonds in payment of taxes, but was simply to provide a mode of proceeding by which it could be definitely and easily ascertained whether a coupon offered in payment of taxes represented any portion of the valid debt of the state; for, unless it did, there certainly was no contract on the part of the state that it should be received in payment of taxes. * * * It certainly cannot be pretended that because a tax-payer tenders in payment of his taxes a coupon of a bond purporting to be a consolidation bond of the state, colored green, that the state and its fiscal officers are bound to receive it without question as to whether it is valid or invalid, and as the state cannot be sued except with its own consent, and then only in the mode which it permits, it follows necessarily that the only mode by which the validity of the coupon so offered in payment of taxes can be tested is that which has been prescribed by the state.'
In answer to the objection that the present plaintiff was not a party to any of the actions instituted in the court of claims to test the validity of his bonds, and that he is not bound by any adjudiction therein, the opinion says: 'This position might possibly be very well maintained if the defense here was based simply on the doctrine of res adjudicata; but that is not the ground upon which the defense rests. The true ground is that, as the state could not be sued except with its own consent, and then only in the mode which it had seen fit to prescribe, and as the state did prescribe a mode by which it could be sued, and the validity of its debt tested upon the same principle by which the contracts of individuals are tested, and having invited all persons having claims against it, whose claims were disputed, to come in and assert and establish their claims, one who has failed to avail himself of the opportunity thus offered cannot afterwards, in another proceeding not permitted by the state, maintain an action against the state or against any of its officers for refusing to do that which the laws of the state forbid.' The supreme court of South Carolina then proceeds to examine the contention on the part of the plaintiff, that the act of the 24th of December, 1878, entitled 'An act to facilitate the collection of taxes,' (16 St. 785,) expressly authorizes an action against the county treasurer when such coupons as his have been tendered for taxes, and refused. Upon that point its opinion is expressed as follows: 'This position is, we think, based upon a total misconception of the true meaning of that act. It certainly never was designed to afford an opportunity to a bondholder to reopen the question as to the validity of any portion of the state debt, which it was supposed had been determined by the decision of this court in the 'Bond Debt Cases,' from which no intimation of appeal had been given. The very object of the legislation of the state hereinbefore considered was, as we have seen, to obtain a final determination of the question of the validity of the state debt; and certainly the legislature, by an act passed nearly a year before such final determination was reached, never intended to afford the means of reopening any of the questions thus finally determined. In addition to this, the phraseology of the act shows that it was never designed to afford a remedy to the bondholder in case his coupons were refused when tendered for taxes, but was intended solely to afford a remedy in case bills of the bank of the state were fefused whent endered for taxes. But even if it should be conceded that the terms of the act to facilitate the collection of taxes were broad enough to cover a case in which coupons of bonds purporting to be bonds of the state are fefused when tendered for taxes, as well as a case in which taxes are tendered and refused in other 'funds and moneys' than the collecting officers are authorized by the act levying such taxes to receive, we do not see how these actions can be maintained. By the express terms of the act it must be made to appear that the county treasurer has illegally and wrongfully refused to receive payment of the taxes assessed against the plaintiff in anything else but gold and silver coin, United States currency, national bank notes, and coupons which shall become payable during the year 1882 on the valid consolidation bonds of this state, known as 'brown bonds,' as required to do by the seventh section of the 'Act to raise supplies and make appropriations for the fiscal year commencing November 1, 1881,' approved February 9, 1882, (17 St. 1070.) Practically this last-mentioned act forbids county treasurers from receiving in payment of taxes any coupons of bonds which have not been ascertained in the manner prescribed by the legislation hereinbefore mentioned to be valid obligations of the state. Now, if, as we have seen, the state had the right to prescribe the mode by which the validity of any bond purporting to be an obligation of the state should be tested and determined, and if, as we have also seen, such mode was prescribed, and the validity of all the various classes of bonds purporting to be obligations of the state was passed upon and finally determined, it would seem to follow, necessarily, that the state had a perfect right to forbid its officers charged with the collection of its revenue from receiving in payment of taxes any coupons or other form of obligation which had not only not been adjudged to be a valid obligation of the state, but which, on the contrary, had been expressly adjudged to be invalid. There certainly can be nothing illegal or wrongful in an officer of the state yielding obedience to a law of the state passed in the usual form, in pursuance of a judgment of its highest judicial tribunal, from which there had been no appeal to the tribunal of last resort, though express provision had been made for such appeal.'
After having thus decided that the present action was not maintainable under the provisions of the act of December 24, 1878, the supreme court of South Carolina proceeds to review the grounds of its prior decisions in the Bond Debt Cases, 12 S.C.. 263, 294, and restates and reaffirms the same, going at large into the question of the validity of the bonds held by the plaintiff as obligations of the state, adjudging them to be invalid. The conclusion follows and is declared that the act of the general assembly entitled 'An act to raise supplies and make appropriations for the fiscal year commencing November 1, 1881,' approved February 9, 1882, alleged by the plaintiff to be void as impairing the obligation of the state contained in the bonds and coupons, is a valid and constitutional law, and justified the defendant, as county treasurer, in refusing to receive the coupons in payment of taxes when tendered.
It thus appears that in point of fact the supreme court of the state of South Carolina, in its opinion in this case, pased upon the federal question sought to be raised by the plaintiff as the foundation of his case, and decided it adversely to him; but the analysis of the case which we have made shows clearly that the decision of that question was not necessary to the judgment. Before reaching that question, the supreme court had already decided that the action of the plaintiff could not be sustained, according to the meaning of the provisions of the statute under which it was brought. The decision of that point was final, and was fatal to the plaintiff's right of recovery. That question is not a federal question; it does nt arise under the constitution of the United States, or of any law or treaty made in pursuance thereof. It is not a question, therefore, which, under this writ of error, we have a right to review. We are not authorized to inquire into the grounds and reasons upon which the supreme court proceeded in its construction of that statute. It is a state statute conferring certain rights upon suitors choosing to avail themselves of its provisions upon certain conditions in certain cases. Who may sue under it, and when, and under what circumstances, are questions for the exclusive determination of the state tribunals, whose judgment thereon it not subject to review by this court. It was competent for the state of South Carolina either to grant or withhold the right to bring suits against the officers of the state for the recovery of money alleged to have been illegally exacted and wrongfully paid. If granted, the action is in substance, though not in name, an action against the state itself, just as an action permitted by the acts of congress on the subject against a collector of customs, for the recovery of duties alleged to have been illegally exacted and paid under protest is an action against the United States, though nominally against the collector. In such cases as the state may withhold all remedy, it may attach to the remedy it actually gives whatever conditions and limitations it chooses; and its own interpretation and application of its statutes on that subject, given by its own judicial tribunals, are conclusive upon the parties seeking the benefit of them. No right secured by the constitution of the United States to any citizen is affected by them unless they are framed or administered so as, in some particular case, to deprive the party of his property without due process of law, or to deprive him of the equal protection of the laws. No such question is or can be made in reference to the statute of South Carolina under consideration. It authorizes, in certain enumerated cases, parties found to be within its terms to bring a prescribed action against the state in the neme of one of its officers. According to the decision of its highest tribunal, the plaintiff in this action is not within the class entitled to sue. To review that judgment is not within the province of this court, because it does not deny or injuriously affect any right claimed by the plaintiff under the constitution or laws of the United States.
It is a well-settled rule, limiting the jurisdiction of this court in such cases, that 'where it appears by the record that the judgment of the state court might have been based either upon a law which would raise a question of repugnancy to the constitution, laws, or treaties of the United States, or upon some other independent ground, and it appears that the court did, in fact, base its judgment on such independent ground, and not on the law raising the federal question, this court will not take jurisdiction of the case, even though it might think the position of the state court an unsound one.' Kinger v. Missouri, 13 Wall. 257, 263, per Mr. Justice BRADLEY. And it has been repeatedly decided, under section 709 of the Revised Statutes, that to give this court jurisdiction of a writ of error to a state court, it must appear affirmatively, not only that a federal question was presented for decision to the highest court of the state having jurisdiction, but that its decision was necessary to the determination of the cause, and that it was actually decided, or that the judgment as rendered could not have been given without deciding it. Brown v. Atwell, 92 U.S. 327; Bank v. Board, 98 U.S. 140; Chouteau v. Gibson, 111 U.S. 200, 4 Sup. Ct. Rep. 340; Adams Co. v. Railroad Co., 112 U.S. 123, 5 Sup. Ct. Rep. 77; Railway Co. v. Guthard, 114 U.S. 133, 5 Sup. Ct. Rep. 811; Water-Works Co. v. Refining Co., 125 U.S. --, ante, 741.
Inasmuch, therefore, as the judgment of the supreme court of the state of South Carolina, sought to be brought in review by this writ of error, does not involve any question necessarily arising under the constitution of the United States, or the laws and treaties made in pursuance thereof, we must refuse to take jurisdiction in the case. The writ of error is accordingly dismissed for want of jurisdiction.

## Notes

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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