Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1885-05-21
THURSDAY............MAY 81. 1885
Judge wenford's Opinion.

clear aud concise opinion in the case Of
Chogn "a. Toyior, decided by him last
Friday in the Circuit Court Of Hcnrico
county. The opinion is avery short
one and the case by no means impor-
tant per se. But if the United States
Supreme Court is to hale Judge WELL
FORD before that tribunal next Octo-
Der, and conflict is to follow between
the poor old State Of Virginia and the
powerful United States, then and in
that event our circuit judge may be-
come as famous as Chief-Justice TANEY
or ABRAHAM LINCOLN. We hear
that the Supreme Court Of the United
States is expected to distinguish itselfand
extinguish eur little Circuit Court but
we cherish the hope that "all is not
lost" Perhaps Judge WEXFORD may
be adjudged to have laid down the law
correctly. Certainly his opinion is
worded SO - to express the greatest
Difference to the Supreme Court. We
now quote Judge WEXFORD
Cbatfa rs. Taylor:
In this case ,he plaintiff sues the efend.
ant in an action Of trespass. The DEFENDANT
nieads that he is an officer OF the State OF
Virginia charged with the collection OF
taxes and that the alleged trespass was
committed to enforce payment OF taxes
due By plaintiff oI 10 sas pa' the de- re-
fendant coupons cut rom bonds OF the
State and that the defendant refused to re-
ceiye them. To this replication the defend
murrer. relied upon the acts of General As
sembly OF January 20. lss2, and the amend
atory act OF March Is. 1854.
Upon this state Of the pleadlnss Judgment
WAS given In this court for the defend
ant, and that judgment was approved
by the Court OF Appeals OF Virginia In
refusing TO award writ OF error.
The peadlngs presented the question
whether the Acts OF Assembly referred 10
were in contravention OF the Constitution
OF the United States, and the Supreme
Court OF the United States awarded writ
OF error to the Judgment of the Court OF
Annals. That venerable court has reversed
the Judgment OF the Court OF Appeals and
OF this court. and renanded the case here
for further proceedings. The defendant
now asks to be allowed to make defence
other than that relied upon in his demurrer.
which has been adj sdged to be insufficient.
Whether ut this stage OF the cause he can
be allowed, before the case goes before .
Jury, TO put In any other defence, lisa matter
purely OF STATE practice and procedure. II
the Court of Appeals had taken the same
view which has been taken by the United
States supreme Court and remanded the
cause to this court. the right OF the defend
would have been exactly the same
as IT is now. The Supreme Court
OF the United States In remandlng
this cause TO this court only commanded
that its construction Of the constitutional
question presented upon the record should
be enforced and maintained between these
PARTIES II the defence which the defendant
now asks 10 set up be at all inconsistent
with the Judgment OF the Supreme Court.
N cannot be entertained. But IL, under the
practice and procedure OF the Virginia
courts. IL Is not too late for the defendant To
plead anew, and II he proffers defence
which In valid and constitutional, the judg-
ment OF the supreme Court In this cause
cannot be construed to justify this court in
refusing him permission to set II up.
Under what believe to be the recognized
and established practice OF the Virginia
courts, IL is not too late for the defendant TO
submit TO the Court and the jury any valid
and substantial defence. The single ques-
ton. therefore. is whether the defence
asked to be set up by the defendant In the
ielolnder 10 the plaintiffs replication be or
q. be not valid and constitutional.
fence that the defendant as a public officer
of the State OF Virginia committed the al
legged trespass In the discharge of q duty
imposed upon him by the act Of Assembly
of January Ia, 1882.
. IL cannot be q question open TO conten-
tion In this court that this act OF Assembly
Unconstitutional. In the case OF Antoni rs.
Grtenhoir. 1877. u. \. Reports, this question
was conclusively determined.
This act was the irst act passed upon this
subject by the General Assembly OF 1872.
and required the coupons TO be proven to
be genuine before the Commonwealth was
compelled 10 accept them, and prescribed a
mode IN which they should be proven.
by the Supreme Court Of the United
Siaies-seven out OF nine of the judges OF the
court concurripg In holding that the act
was constitut ional--this case WAS recog-
niztd In the opinions of Justice Matthews
In che recent case of POindeIter rs. Green
hov, the reasoning OF which Is adopted an
controlling the decision OF the court In re-
yersing the action OF this court and the
Court Of Appeals In this very case, and u
distinctly reaffirmcd and made the basis OF
the Judgment Of that court In the more re-
cent and last care OF Moore rs Greenhot0.
In View Of these decisions II Is impossible
for me to appreciate any valid objection 70
the claim set up Ia the rejoinder by the de-
iendant-that he WAS protected In his action
by the mandate Of the State OF virginia.
Indeed. in Antoai ~. Greeahoto Mr.. Justice
Matthews delivered q separate opinion,
concurripg In the Judgment OF the court
anu pIfttffluk 10 fftt nAs JuuSmoht tloh
the III ound that Greenhow In that case, act
ing under the authority OF the law.
the state OF Virginia was the virtual
defendant, and that tho United states
court therefore had not jurisdiction. In
the late cases OF Poindexter and Others
against this same officer and this case Of
CAeDsn 90. 7ayior four judges OF the court
dissented ffom the Judgment of the court
upon the very ground set ont in Justice
Matthews opinion In AHioni ps. GrecnAow.
do not understand Justice Matthews. who
delivered tho opinion OF the court In
thcse last ceses. to withdraw his opinion
in Aatonf re. Greenhor. In the late cases.
however. In which the officers Justified
under an Unconstitutional law. he held and
Justice Wooda, who coEcurred with Justice
Matthews In ARfoai rs Greeahoac concurred
with him. that the osficem must be regarded
rs private individuals. and therefore the
suits were not to bo regarded ss suits against
the state. IT, therefors, Justices Matthews
and Woods are to be regarded az sdherlny
60 their opinion In Aatoei "a. Green
hoN, that en- officer OF the State OF
Virginia, acting under the authority
OF the act OF January IL. 1882, could not be
fegatdcd oiherwise than as representing
The state. and therefore not ainenable 10
the Federal courts. we have their authori-
~ In addition 10 that OF the Chief Justice
and justices bradley. Miller and GRAY,
The dissenting judges In POfadexfer ~
tsfeephON, being six Oh; OF nine OF the pres
cut ludgss u the court TO the effect that the
iejolnSer now rendered raises no Federal
question and snIst he deferm lined nv tho