The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1880-11-19

: section q the act nf I9fb March. 1872, wbic
fs In these words - The receipt OF intere,
: under the provisions of ibi, act shall b
Q btld and Gecreed 10 be an acqGjescepc
| upon the part OF the creditor, In The PROV
sioEs OF an act declaring what shall be re
! cetvable IN payment OF public does. :
: Acts OF '7l-'72, p. z1s, 81 The sct re
: ferred 10 IN this section y The act passe,
: March Z. 1872, which Is as follows:
81. BE IL enacted by the Generat AsSepa
6ty OF Vtrginin. That hereafter 1t shall no
be lawful for The officers charged with ih,
collection Of taxes or other demands OF ih,
, State due now, or that shall hereafter be
come due, TO receive in payment tEereo
: ANYTHING else than gold or silver coin
United States Treasury notes, or notes o
the naiionai banks OF the United States.
"2. All acts or parts Of act inconsistent
with this act are b, reby repealed.
"3. This act shall be in foI ce from and az
ter The passage" (Acis Of '71-'7s, p. 141.
have attempted TO show that il does not
appear thattbe petitioner received part OF
the interest which the State owed him IN.
DER The provisons OF this act. But waving
that. and coscedi6s that lie received two
thirds OF the amount due him upon his
coupons under the provisions Of that act,
he cannot be lawfully held 10 have acqui-
esced IN the provisions OF the act last afore-
said OF the 7th OF March, not only because
be received no consideration there efOr, but
becaUse said act was unconstitutional and
void, as this Court has repeatedly declared
1T 10 be.
Such declaration by the Supreme Court
OF last resort is declaration that no such
law ever existed. and in fact strikes it FROM
the statuebook; and with respect to all
rights acquired or obligations to be en-
forced. the case stands as il no such act had
ever been passed.
How. then, can il be said that the acqni-
escepce by creditor IN an act which is ju-
dicially declared TO be, bv competent au-
thority, and must be admitted to be no law,
binds bin for any purpOsei
When we strip from the statutes the act
OF March Z, 1872. there is nothing upon
Which the claim Of the defendant can rest.
And the claim Of the State Is therefore not
only founded upon nudum pdctuin re-
quiring the creditor 10 give up his whole
debt, or his only security for II, without
consideration, but he is held bound by an
implied acquiescence in law declared by
the highest tribunal in the State clothed
with power 10 determine the question TO be
unconstitutional and void, aud as absolutely
Of no binding effect anywhere or against any
person.
AT the time the act OF the 10Th OF March
was passed the question as TO The constitu-
tIonalIty of the act OF the I b of March had
not been ldjudicated. But whether it had
been before tue holder received two thirds
OF his coupons does not appear. II he had
received payment before the said act was
judged to be unconstitutional the implI-
cation that he thereby acquieSced in an act
which took from him his security for the
residue OF what was due bin would be 10
hold him bound by an unconstitutional and
void act OF the Legislature. For The iudg-
ment Of the court OF last resort declaring
said act 10 be unconstitutional and void i'll
voldales it from IFS first enac mint.
II, upon the pres umption tDat The act was
constitutional aud binmng, he had express
ly agreed TO abide by il, and it was after.
ward adiudgcd unconstitutional and void
it is not binding on him, and his agreement
of acQuitscence could not be enforced, es-
pCclaly as be bad gained nothing and the
estate bad lost nothing 10y the transaction.
But it is c0htended that he did gam some
thing; that he received two thirds OF bi,
debt, which he could not have compelled
to make an appropriation to pay. Al
that he received The State owed him, and il
was only pant OF what the State owed him.
and which WAS then due. ] can't well SET
how be gained anything when he got only {
part OF what was justly due him. The LIE
gisaure was morally and conslltutionaIl
bound to make an appropriation to pay The
whole, aud failing TO fulfill its constitutions
and moral obligation in the whole, the ful
imeDt of it in part cannot be a considera
tion to support an agreement OF the creditor
TO acquiesce in an unconstitutional laN
winch would deprive him OF the balance o1
his just demands on the State.
| have no doubt as to the constitutions
right OF the petitioner to set Of the unpaid
balance Of his coupons which the STAT,
owes him against the taxes or other de
mand. OF the State against him, notwilh
standing the unconstitutional and void ac
0f the 7ih OF March. 1872, forbds, and
must so hold. | am OF opinion, therefore
TO make the rule absolute and TO award The
mdndGnlUS.
OPINION OF JUDGE STAPLES.
There is no controversy with regard tc
the facts OF this case. 1t is conceded that
the petitioner presented his'cOupons at The
State Treasury, received in money two
thirds OF the interest thereon, and there.
q upon the Second Auditor stamped upon
each OF The coupons the amount SO paid in
conformity with the provisions OF the acl
OF March 49, 1872.
By the fourth section Of that act it is pro-
vided that the receipt Of such interest
should be deemed 10 be an acquiescence
upon the part Of the creditor, in the proyi
sions OF the act OF March, 1S72-Acts o.
1912, page l4l.
This latter act provides that only gold 0I
silver coin, or United States treasury notes
or nationaI-bank notes, should thereafter b'
received in payment OF taxes and all othel
demands OF the Safe.
The proposition made TO the coupon
holder by the legislature was substantially
that the Stale would pay him two thirds oi
the amount due him upon condition that ht
would waive The right to use the remaining
third in payment OF his taxes.
In no other way can State contract ex
cept through the instances OF law.
When, therefore, the coupon.holder pre-
sented his coupon at the Treasury and re
eeiyed payment OF the two thirds 10 money
he accepted the terms proposed, and there
by entered into a contract with the State, a.
formal in all its provisions and incident:
and as effectua in its operations as citizer
can make with the Government.
The act NANTES silly applies to such cou
pons only as are presented at the Treasury
paid, and stamped by the Auditor.
Other coupons held by the same creditor
upon which nothing has been demanded
and paid, are not embraced by the act.
No other construction, so far as am IN
formed, has ever been contended for by any
one. No such question arises in this case
and the only point we have to decide Il
whether the creditor, having received tb'