# McCullough v. Virginia/Dissent Peckham

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Wheeler Peckham
United States Supreme Court
172 U.S. 102
McCullough v. Virginia
Mr. Justice PECKHAM dissenting.
I dissent from the opinion and judgment of the court in this case because I think that the ground upon which the state court has based its decision deprives this court of any jurisdiction. The case having originated in a state court, we have no jurisdiction to re-examine its judgment unless there is some federal question involved therein, the decision of which by the court below was unfavorable to the claim set up, and its decision was necessary to the determination of the case, or the judgment as rendered could not have been given without deciding it. Eustis v. Bolles, 150 U.S. 361, 14 Sup. Ct. 131.
Jurisdiction is said to exist herein because of the alleged violation of the constitutional provision denying to any state the right to pass any law impairing the obligation of a contract.
In all the litigation arising in the state courts by reason of the subsequent legislation by Virginia upon the subject the claim was made, on a review of the judgments in this court, that the judgments of the state courts had given effect to statutes which were passed subsequently to the original coupon statutes, and that the original contract made by those statutes had been impaired by reason of those subsequent statutes to which effect was given by the judgments of the state courts. It was the giving effect by the judgment of the court to the subsequent statutes which it was alleged impaired the contract, that gave jurisdiction to this court to decide for itself whether there was a contract, and, if so, what the contract was, as a preliminary to the decision of the question whether the subsequent statutes impaired the contract as construed by this court. The cases in which this court decides for itself, without reference to the decision of the state court, what the contract was, are cases where there has been not only subsequent legislation which is alleged to impair the contract, but also legislation which has been given some effect to by the judgment of the state court. Such is the case of Bank v. Skelly, 1 Black, 436, 443, and such are all the other cases decided in this court upon that subject.
If by the judgment of the state court in this case no effect has been given to any statute passed subsequently to either of the coupon acts, this court is without jurisdiction to review that judgment. Water Co. v. Easton, 121 U.S. 388, 7 Sup. Ct. 916; New Orleans Water Works Co. v. Louisiana Sugar Refining Co., 125 U.S. 18, 8 Sup. Ct. 741; St. Paul, M. & M. Ry. Co. v. Todd Co., 142 U.S. 282, 12 Sup. Ct. 281; Land Co. v. Laidley, 159 U.S. 103, 16 Sup. Ct. 80; Bacon v. Texas, 163 U.S. 207, 16 Sup. Ct. 1023.
If there had never been any subsequent legislation regarding these coupon acts, and the highest court of the state had adjudged that they were void as being in violation of the constitution of the state existing at the time of their passage, of course there would be no jurisdiction in this court to review that judgment. And the state court might have decided the case in different ways, at one time holding the acts valid and subsequently holding them void, and still this court would have no jurisdiction to re-examine the judgments of that court. This would be true even if millions of dollars had been invested in the bonds upon the strength of the judgment of the state court first given holding the acts valid.
The cases above cited show that, even if there has been subsequent legislation, if the judgment of the state court does not give that legislation any effect, and decides the case without reference thereto, this court is also without jurisdiction to review that judgment.
I do not say that, in order to give this court jurisdiction, the state court must in words allude to the subsequent legislation, and in terms give effect to it. It may be assumed that, if the real substance and necessary effect of the judgment of the state court was the determination of a federal question, or the giving effect to subsequent legislation, this court would have jurisdiction to review that judgment, notwithstanding the particular language used in the opinion. But when the case before the state court could have been decided upon two distinct grounds, one only of which embraced a federal question, the sole way of determining upon which of those grounds the judgment was rested would be to examine the language used in the opinion of the state court. If that language showed the judgment was founded wholly upon a nonfederal question, this court would be without power to review it. Whether the state court has decided this case wholly without reference to subsequent legislation can only be learned from its opinion. To this extent it has always been within the power of the state court to determine the jurisdiction of this court. If the former court chooses to decide a case upon a nonfederal question, when it might have decided it upon one which was federal in its nature, the effect of such choice is to deprive this court of jurisdiction, no matter how erroneous we may regard the decision of the state tribunal. The power is with the state court in such cases to deprive us of jurisdiction to review its determination, and we are wholly without any power to control its action in that respect. This is what has been done, and all that has been done, in this case. The opinion of the state court shows that the judgment went upon the original and inherent invalidity of the coupon statutes, and its judgment in that respect, as I shall hereafter attempt to show, gave no effect to any subsequent legislation. That is the material question in this case upon which the jurisdiction of this court hangs. Prior decisions of this court in other cases holding the contract valid, where we had jurisdiction to determine such cases, can have no effect upon the question of our jurisdiction to review the judgment in the case at bar. Prior decisions, in such event, constitute no ground of jurisdiction.
I concede, plainly and fully, the power of this court to review a judgment of the state court when effect has been given by that judgment to subsequent legislation claimed to impair the validity of a contract. But that vital fact must appear in order to support the jurisdiction, and without it the jurisdiction does not exist, no matter how important the question may be, or how many times it may have been heretofore decided.
To say that the duty is cast upon this court to inquire whether a state has passed a law impairing the obligations of a prior contract is but to half state the case. The inquiry must be further prosecuted to the extent of learning whether the state court has, by its judgment, given effect to such subsequent legislation, and, if it has not, then no duty or right rests upon this court to review the judgment.
However true it may be that in many prior cases this court has held there was a valid contract created by the coupon statutes, so called, which could not be impaired by any subsequent legislation, the fact remains that, unless such subsequent legislation has been given effect to by the judgment in this case, there is not the slightest shadow of a claim for jurisdiction in this court to review that judgment. Millions or hundreds of millions of dollars may have been invested in reliance upon a judgment of this court declaring the law to be that there was a valid contract, and yet a state court might, in a subsequent action, adjudge that there never was a valid contract, because the statute which it was claimed created it was in violation of the state constitution. If that judgment did not, in effect, put in operation any subsequent legislation, the solemn adjudications of this court in some former cases that the contract was valid could not affect the judgment in question, nor furnish ground for the jurisdiction of this court to review that judgment. This court is not intrusted with the duty of supervising all decisions of state courts to the end that we may see to it that such decisions are never inconsistent, contradictory, or conflicting. We supervise those decisions only when a federal question arises. It is said this court is not bound to follow the last decision of a state court reversing its prior rulings upon a question of the validity of a contract, when bonds have been issued and taken in reliance upon the decision of the state court adjudging the validity of the law under which the bonds were issued. I do not dispute the proposition, but it has nothing to do with this case. Where an action has been brought under such circumstances in a federal court, it has been frequently held that such court was not bound to follow the latest decision of the state court, which invalidated the law under which bonds had been issued, at a time when the state court had held the law valid. In such case the federal court would follow the prior decision of the state court, and apply it to all the securities which had been issued prior to the time when the state court changed its decision. But such a case raises no question of jurisdiction in this court to review the judgment of a state court. When that question of jurisdiction does arise, the right of review cannot rest upon the fact that the state court has refused to follow its former decision, and, on the contrary, has directly overruled it. The jurisdiction of this court to review the state court in this class of cases is confined, in the first instance, to an inquiry as to the existence of subsequent legislation upon the subject; and, if none has been enacted to which any effect has been given by the state court, this court cannot review the decision of the state tribunal, even though that decision makes worthless a contract which it had prior thereto held valid.
The cases of Gelpcke v. City of Dubuque, 1 Wall. 175, and Railroad Co. v. McClure, 10 Wall. 511, illustrate this difference between the powers of this court when reviewing a judgment of a lower federal court and its powers when reviewing a judgment of a state court.
In this class of cases the absolutely unbending and essential fact which must exist in order to give jurisdiction to review a judgment of a state court is subsequent legislation, to which effect has been given by the judgment of the state court. This court is not the Mecca to which all dissatisfied suitors in the state courts may turn for the correction of all the errors said to have been committed by the state tribunals. Nor is it confided to this court to supervise the judgments of a state court in all cases where we may think that court has, by its later decision, invalidated a contract which it had once held to be lawful, and the judgment in which this court had upheld. The right of the state court in another case to reverse its former ruling is wholly unaffected by the fact that its former judgment had been affirmed here. Unless the federal question exists in this case, there is no ground of jurisdiction founded upon any prior decisions.
Now, has this judgment of the state court given effect to any subsequent legislation? At the time of the passage of the coupon acts there was no prior statute in Virginia permitting taxes to be paid in coupons of any kind whatever. The sole authority for such attempted payment of taxes rested in the coupon statutes under consideration. If they gave no such authority, then none existed, and no payment of taxes by means of coupons was valid. This is wholly irrespective of the subsequent acts. The state court has held the coupon acts to be entirely void, because in violation of the state constitution in existence when they were passed. Under that decision those acts are to all intents and purposes as if they never had been passed. They therefore furnished not the slightest form of legality to a payment of taxes in coupons. It was not a statute to forbid paying taxes in coupons that was necessary in order to deprive such payments of legality. A statute-a valid statute-authorizing such payment was necessary in the first instance, and, if there was no such statute, there was no authority existing to receive coupons in payment of taxes. The supreme court of appeals of Virginia, in a case in which it had jurisdiction, decided there was no such statute, and consequently no such authority, because the statute purporting to confer that authority was void, as in violation of the constitution of the state. This judgment did not give the slightest effect to the legislation subsequent to the coupon statutes. It simply held there were no coupon statutes, because those which purported to be such were totally void. No subsequent statute was necessary, and none such was given effect to. Striking down the coupon statutes effectually destroyed any assumed right to pay taxes in coupons, and the subsequent legislation was needless and ineffectual. Thus the whole groundwork upon which to base our jurisdiction in this case falls to the ground, and we are left to maintain it upon the insufficient claim of prior decisions of this court.
In truth, the particular question decided in this case has never been before this court. In some of the former cases this court decided the general proposition that the coupon legislation was valid, and created a contract. After it had thus decided, a case came before it where a subsequent statute provided that, in the case of the school tax, coupons should not be received in payment thereof. The state court had decided that the coupon statute was invalid so far as it related to the school tax, because the constitution in existence when the coupon acts were passed required, in substance, that such tax must be paid in lawful money, and consequently the coupon act was unconstitutional as to such tax. This court affirmed that judgment. Vashon v. Greenhow, 135 U.S. 662, 713, 10 Sup. Ct. 972. Part of the coupon statute was thus held invalid by the state court and also by this court.
The state had also passed a subsequent statute providing that the tax for a license to retail liquor should be paid in lawful money. This court (affirming in that respect the court below) held that act valid, because it was, in effect, a regulation of the liquor traffic, and the state could at all times legislate upon that subject, notwithstanding the coupon acts and the alleged contract therein created. Hucless v. Childrey, 135 U.S. 662, 709, 10 Sup. Ct. 972. Both of these decisions were made subsequently to the time when this court had held the coupon statute valid, and that a valid contract was therein created.
The state court has now decided in this case that, as the coupon acts were invalid as to the payment of the school tax in coupons (a proposition concurred in by this court), the result was that the whole acts were invalid, that they could not stand partly valid and partly void, and that the whole coupon scheme was unconstitutional. This phase of the controversy has never before reached this court, and the court has therefore never before decided this particular point. It has said, generally, that the legislation was valid, but it said so only in cases where the general power of the legislature to enact the coupon statutes was in question, and it has never decided squarely the point that, if the coupon acts be unconstitutional in some particulars, they are nevertheless valid in all others. The fact is alluded to simply as matter of history.
But, even if it had, that fact confers no jurisdiction upon this court to review this judgment, if it otherwise is without it. In other words, because this court has heretofore decided the question of the validity of the contract in cases where it had jurisdiction, that fact furnishes no foundation for its jurisdiction in this case, where the state court has given no effect to any subsequent legislation. Prior decision is not the foundation of jurisdiction. What I say is that whether there have been two or more decisions is wholly immaterial. Jurisdiction cannot be taken because it is said that in a second or subsequent decision the state court did not follow its first decision in regard to the contract, although that decision had been affirmed, as to that point, by this court. In this decision now before us it has given no effect to subsequent legislation, and, not having done so, but simply decided a question of local law regarding its own constitution, the state court has given no decision which raises a federal question, and therefore none that this court can review.
Under all the circumstances I can only see a determination to take jurisdiction in this case simply because this court, as it is said, has in cases in which it had jurisdiction decided the question differently from the decision in this case by the state court. That ground does not give jurisdiction, and that is the only ground that does exist.
The writ of error should be 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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