The Valley Virginian. [volume] (Staunton, Va.) 1865-1895, 1885-04-23

money, and after a tender of such coupons
duly made for that purpose, the situation
and rights of the taxpayer and coupon
holder were precisely what they would
have been If he had made Il like tender in
money.
8. 1t is well settled by many decisions Of
this court that for the purpose OF affect
ing proceedings to enforce The payment of
taxes lawful tender Of payment is equiv
alent to actual payment, either being suf-
ficient to deprive the collecting officer OF
all authority for further action and making
every subsequent step Illegal and void.
4. The coupons in question are not bills
of credit in the sense OF the constltu-
ton, which .forbidS the State ITO emit
bills of credit, !" because, although issued
by the State of Virginia on it's credit and
made receivable in payment OF taxes, and
negotiable SO as to pass from hand to hand
by delivery merely, they were not intended
to circulate as money between individuals
and between government and individuals
for the ordinary purposes of society.
S. An action or suit, brought, by tax
payer who has duly rendered such coupons
in payment of his taxes against the per-
son who, under color OF Office as tax col
lector. and acting in the enforcement of q
void law passed by the Legislature of the
State. having refused such coupons, pro-
ceeds by seizure and sale of the property
of the plaintiff to enforce the collection
of such taxes. is an action or suit against
him personally rs q Wrong-doer, and IS not
against the State within the meaning OF
the eleventh amendment to the constitu-
! ton of the United States.
6. Such a defendant, sued as wrong
d0er, who seeks to substitute the State IN
1. ifx,b xrth or hHritv nf
! the State. or to defend on the ground that
the State has adopted his act and exon
| Grated him. cannot rest on the bare asser-
| ton of his defense, but is bound to estab-
| lish it !: and as the State is political cor
| porate hpdy which can act only through
agents md command only by law, in order
| to comlyete his defense he must produce a
valid law OF the State which constitutes
! his commission as its agent and warrant
| for his act.
:. The act of the General Assembly OF
| Virginia of January &c, 1852, TO provide
for the more efficient collection OF the rev
enue to support government, MAINTAIN the
public schools, and to pay interest on the
public debt, T" requiring tax collectors 70
receive, in the discharge OF the taxes,
| license taxes and other dues. gold, silver.
United States treasury notes, national
| udIlk cuIl6uCN vi llO uOeAlIs, NlpS- piAo INV
by forbidding the receipt Of coupons IS
sued under the act of March 80, 1871, in
payment therefor, although it is a leglsla-
| tive act of the government OF Virginia,
| is not a law of the State of Virginia
because it impairs the obligation OF its
contract, and is annulled by the conStltl-
ton of the United States.
s. The State has passed no such law, Tor
il cannot and what it cannot do in con-
temptation of law it has not done. The
| constitution of the United States and its
| own contract, both irrepealable by any act
on its part, are the law OF Virginia,
| and that law made it the duty OF the de-
PENDANT to receive the coupons rendered
in payment of taxes. and declared every
step to enforce the tax thereafter taken to
be without warrant of law and therefore a
wrong. This strips the defendant OF his
official character and convlcts him, OF g
personal violation of the plaintiffs rights,
for which he must personally answer.
8. 1t is no objection to the. remedy in
such cases thai the statute, the applica-
ton of which in the particular case is
sought to be prevented, is not VOID on Its
face. but is complained of only because its
operation in the particular instance works
q violation of q constitutional right foI
the cases are numerous where the taS
laws OF State, which in their general and
proper application are perfectly valid, have
been held to become void in particular
cases either as unconstitutional regula
lions in commerce or as violations OF con,
tract prohibited by the constitution, OF
because in some other way they operate tC
deprive the party complaining OF right
secured to him by the constitution OF the
| United States.
Tn, Of 6atinI1a thp action
purely defensive on the part of the plain
tiff. Its object is merely to resist an at
tempted wrong and to restore the status IL
quo as it was when the right to be vindi
Gated was invaded. 1t is analogous to the
preventive remedy of injunction, in equity
! where that jurisdiction is. invoked, o.
which frequent examples occur in cases to
prevent the illegal taxation Of nationa
banks by State authorities.
II. The suit authorized by the act OF
the General Assembly of Virginia of Jan
uary 26, 1882, against the collector OF take:
refusing to accept tender of coupons, t6
recover back the amount paid under pro
test, is no remedy at all for the breach o
the contract which required him to re
ceive the coupons in payment. The tax
payer and coupon holder has q right to So,
he will not pay the amount . second time
and, insisting upon his tender IS equiva
, lent to payment, resist the further eXac
! ton. and treat as a ong-doer the office
who seiZes hisproperty 30 enforce it. TIT
right to pay in coupons cannot he treated
as a mere right OF setoff, which is part o
The remedy merely when given by the gen
eral law, AMI therefore subject to modili
cation or repeal, because the law Whlcl
gave it is also q contract, and therefor
cannot be changed without mutual con
sent.
70. Neither can it be considered all ad
euuate remedy in view of the suppose,
necessity for summary proceedings in mat
tiers OF revenue, and the convenience o
the State, which requires that the promp
collection of taxes should not be hindere(
or embarrassed for the revenue system
, must Weld to the contract which the Stat
has lawfully made, and the obligation 0
which BY the constitution it is forbidde
to impair.
IS. The act of the General Assembly 0
Virginia of January 20, 1882. and th
amendatory act Of March 10, 1884, are un
constitutional and void because they i'm
, pair the obligation OF the contract Of tn
State with the coupon holder under tn
act of March 80, 1871, and that being TIN
main object of the two acts, the vic
: which invalidates them pervadeS then
, throughout and in all their provislans. /
, is not practicable to separate those part
which repeal and abolish the actions o
trespass, and trespass on the case ant
other particular forms of action, as rene
dies for the taxpayer who has rendered hi
coupons in payment OF taxes, from tn
main object Of the acts WHICH that prohi
bition was intended to effectuate and i
follows that the whole of these and SINH
lar statutes must be declared to be uncon
stitutional. null and void. 1t also follow
that these statutes cannot be regarded il
the courts OF the United States rs laws 0
the State. to be obeyed as rules of decision
, in trials at common law under section 7al
Revised Statutes, or as regulating tn
practice of those courts under section
9l4. Revised Statutes.
IA. The present case is not covered by
the decision in Antoni VS.. GreenhoW, 10,
u. S.. 700. the points now involved being
expressly reserved in the Judgment in thai
case
The points OF the decision Of the court
IN the other cases Of this group are as fol
lows
Nos $50 and 1860 covered by the above
opinion in No. 5SS.
\ o. S26. Allen, auditor, against the Bal
timore and Ohio Railroad Company. The
court holds |, that the general questions
| arising and argued in this case are fully
discussed and decided in the case OF POin
dexter vs. Greenhow, No. 5SS. 2. the rem