ates is a violation of the contract, a thai case. and value of this contract right not-baller deserved to be further It was evidently a part of the conwhich the creditors of the State sccept, under the Act of March the State of Virginia, new oblitwo thirds of their claim, in exthe siretder of the original bonds. deaded for their payment, -pripal and interest, upon the confa of the State in making from ecessary appropriations out of y to meet its recurring liabiliAre eislation to that effect. coupons issued under that Act, tendered in payment of taxes, to compel him specifically to do so. The case of Hartman v. Greenhow (supra] was one in which that relief was administered; and in Antoni v. Greenhow [supra] it is stated to have been the settled practice of the Supreme Court of Appeals of Virginia to entertain suits for similar relief. By an Act of January 14, 1882, the General Assembly of that State modified the proceedings in mandamus in such cases so as to require the taxpayer first to pay his taxes in money, and then the coupons tendered having in another proceeding been determined to be genuine, he was entitled to a judgment upon the mandamus, requiring them to be received in payment of the taxes, and the money previously paid refunded. The validity of this Act became the question in Antoni v. Greenhow, In ubi supra, and it was affirmed on the ground there was no remedy by legal that, for the purpose of specifically enforcing Sate itself could not be sued. Its the right to have the coupons received in pay5 pay had no sanction but the ment of taxes, the new remedy was substanf duty to the public creditors. tially equivalent to the old one. The court were ity for their performance was not willing to decide that it was a suit against the State, in which the mode of proceeding could be modified, or the remedy taken away altogether, at the pleasure of the State. And it affirmed the right of the coupon hoer to have his coupon received for taxes when offered. "The question here," said the court, "is not as to that right, but as to the remedy the holder has for its enforcement when denied." "The question," said the Chief Justice, delivering the [281] opinion of the court, "we are now to consider is not whether, if the coupon tendered is in fact genuine and such as ought, under the contract, to be received, and the tender is kept good, the treasurer can proceed to collect the tax by distraint or such other process as the law allows, without making himself personally responsible for any trespass he may commit, but whether the Act of 1882 violates any implied obligation of the State in respect to the remedies that may be employed for the enforcement of its contract if the collector refuses to take the coupon." ly on the passage of the Act 71, and thereafter, occasional fault in the payment of interest d in pursuance of its proviof failures to provide by laws priations for its payment, was ted by a self-executing remedy in the hands of the creditor that time it became the every tax-collector to receive these bonds, offered for that purer, in payment of taxes, upon at an equal value, and with azh they were gold or silver asury notes. They were by effect, into money, and as ale and its taxpayers were a ey; and being not only a it became, by force of the if the United States, irrepealable, day what it was when first That was a case in which it was sought, by geable law of Virginia. mandamus, specifically to enforce the contract such coupons by a taxpayer of the State with the coupon holder, by comales, and a refusal by a tax pelling, by affirmative action and process of ve them, the situation and law, the collector actually to receive the couAster and coupon-holder were pons tendered in satisfaction of taxes. It left Would have been if he had unaffected the right of the coupon holder and gold coin and it had been taxpayer, after his tender had been unlawfully at they would be we shall have refused, to stand upon his contract and the law, to inquire. In the mean- in defense of his rights, both of person and the contract obligation em- property, against all unlawful assaults and aly imparted by law to these seizures. In the former he was an actor, seekivable in payment of ing affirmative relief, to compel the specific perpilateral and real security formance of the contract. In the latter he is a of the creditor, intended to defendant, passively resting on his rights, and them without process of resisting only demands and exactions sought to the acoual taxes of the State be enforced against him in denial of them. He to absorb all coupons has himself, in all things, performed the conand unpaid, a certain market tract on his part, and obeyed the law, and simwhich will maintain them ply insists, that if more is illegally exacted and rale. In the hands of the taken from him, he shall have the remedy which Puy them for tender, they are the law gives to every other citizen, not himDr. a 121 chown in action, but equal self in default, against the wrongdoer who, y to money, and equivalent under color of law, but without law, disturbs as already paid. lor dispossesses him. As we have seen, the couage of the Act of March pon holder, whose tender of genuine coupons are exced a remedy by mandamus in payment of taxes has been refused, stands rector refused to receive upon the same footing in this respect as though [282] [283] he had tendered gold coin in similar circum- | that clause of the Constitution of the Unite "Geo. Rye, Treasurer." It is contended that this is a bill of credit the sense of the Constitution, because, bei receivable in payment of debts due the Stat and negotiable by delivery merely, it was i tended to pass from hand to hand and circula as money. The question next in order is, whether he has any, and if any, what remedy for the recovery of property distrained to pay the same tax which The coupons in question are in the ordinar he has thus already offered and attempted to form, and one of them reads as follows: pay in money or its equivalent. It is well set- "Receivable at and after maturity for a tled by many decisions of this court, that, for taxes, debts and demands due the State. the purpose of affecting proceedings to enforce "The Commonwealth of Virginia will pay th the payment of taxes, a lawful tender of pay-bearer thirty dollars, interest due 1st Januar ment is equivalent to actual payment, either be- 1884, on bond No. 2731. ing sufficient to deprive the collecting officer of "Coupon No. 20. all authority for further action, and making every subsequent step illegal and void. In Woodruff v. Trapnall, 10 How., 190, 208, it was held that a tender of the notes of the bank of the State of Arkansas, by law and a contract with the noteholders made receivable in payment of public dues to the State, was equivalent to payment, in extinguishing the judgment in satisfaction of which they were offered. The court said: "The law of tender which avoids future interest and costs, has no application in this case. The right to make payment to the State in this paper arises out of a continuing contract, which is limited in time by the circulation of the notes to be received. They may be offered in payment of debts due to the State in its own right, before or after judgment, and without regard to the cause of indebtment." In the case of U.S. v. Lee, 106 U.S., 196 [Bk. 27, L. ed., 171], it was held that a certificate of a sale of land for taxes, made by commissioners, which by law was impeachable by proof that the taxes had been paid previous to sale, was rendered void by proof that the commissioners had refused to receive the taxes, without proof of an actual tender, where the commissioners had waived it by a previous notice that they would not accept it. In the opinion of the court it is said: "This court has in a series of cases established the proposition that where the commissioners refused to receive such taxes their action in thus preventing payment was the equivalent of payment in its effect upon the certificate of sale," citing Bennett v. Hunter, 9 Wall., 326 [76 U. S., bk. 19, L. ed., 672]; Tracey v. Irwin, 18 Wall., 549 [85 U. S., bk. 21, L. ed. 786]; Atwood v. Weems, 99 U. S., 183 [Bk. 25, L. ed., 471]; and Hills v. Exchange Bk., 105 U. S., 319 [Bk. 26, L.ed., 1052]. The case, then, of the plaintiff below is reduced to this: He had paid the taxes demanded of him by a lawful tender. The defendant had no authority of law thereafter to attempt to enforce other payment by seizing his property. In doing so, he ceased to be an officer of the law and became a private wrongdoer. It is the simple case in which the defendant, a natural private person, has unlawfully, with force and arms, seized, taken and detained the personal property of another. That an action of detinue will lie in such a case, according to the law of Virginia, has not been questioned. The right of recovery would seem to be complete, unless this case can be met and overthrown on some of the grounds maintained in argument by counsel for the defendant in error. These we proceed now to examine in their order. It is objected, in the first place, that the law and contract, by which the quality of being receivable in payment of taxes to the State is imputed to the coupons, is itself in violation of The meaning of the term "bills of credit," used in the Constitution, has been settled decisions of this court. By a sound rule of i terpretation it has been construed in the lig of the historical circumstances which are know to have led to the adoption of the clause pr hibiting their emission by the States, and view of the great public and private mischie experienced during and prior to the period the War of Independence, in consequence unrestrained issues, by the Colonial and Sta governments, of paper money, based alone u on credit. The definition thus deduced w not founded on the abstract meaning of t words, so as to include everything in the n ture of an obligation to pay money, reposi on the public faith, and subject to future demption, but was limited to those particul forms of evidences of debt which had been abused to the detriment of both private ar public interests Accordingly, Chief Justi Marshall, in Craig v. Missouri, 4 Pet., 410, 43 said that "bills of credit signify a paper mediu intended to circulate between individuals, a between governmer and individuals, for t ordinary purposes of society." This definiti was made more exact by merely expressin however, its implications, in Brisce v. Ba of Ky., 11 Pet., 257, 314, where it was sai "The definition, then, which does include classes of bills of credit emitted by the Col nies or States, is a paper issued by the sovereig power, containing a pledge of its faith and d signed to circulate as money." And again ( 318), "To constitute a bill of credit, within t the Constitution, it must be issued by a Stat on the faith of the State, and be designed circulate as money. It must be a paper whi circulates on the credit of the State, and is received and used in the ordinary business life." The definition was repeated in Darrin ton v. Bank of Ala., 13 How., 12. It is very plain to us that the coupons in que are not embraced within these terms. Th are not bills of credit in the sense of this co stitutional prohibition. They are issued by ti State, it is true. They are promises to pa money. Their payment and redemption a based on the credit of the State, but they we not emitted by the State in the sense in whic a government emits its treasury notes, or a bar its bank notes-a circulating medium or pap currency-as a substitute for money. And the is nothing on the face of the instruments, n er nature, nor in the terms of the | arize their issue, nor in the cirtheir creation or use, as shown on which to found an inference Apons were designed to circulate, = transactions of business, as at in fact that they were so used. are relied on to show such a deprove such a use is, that they are in payment of taxes and other From this it is argued that in such a circulation from hand ney, as the demand for them, a quality, would naturally this falls far short of their fitness on in the community, as a -- ** and substitute for money, in the tions of business, which is necthem within the constitutional kost bills of credit. The notes the State of Arkansas, which of controversy in Woodruff v. How., 190, were by law receivatein payment of all dues to it, ace was not supposed to make It is true, however, that → held they were not so beot issued by the State and h the entire stock of the by the State, which furnished and was entitled to all the Ce the coupons were issued Vis and in its name, and ased on its credit, and which se mode of redemption, to reet of all dues to itself in the der; but they were not issued nor was this quality imem to fit them for use as mon extend to any suit in law or equity, cominenced This immunity from suit, secured to the It was conferred, as is apparent stances of their creation and an assurance, by way of coner, of the certainty of their an in the ordinary transactions betreasury and the taxpayers. e receivable in payment of due, and the design, we are was that they would be This necessarily excludes were intended for circulation It is also true that the question whether a suit In that case, the general question was discussed [288] [289] necessary party to enable the court to grant re- to sustain the defense and to defeat the plai iff's cause of action it was necessary to sli that the defendants were in possession und the United States, and on their behalf, by vir of some valid authority. As this could not shown, the contrary clearly appearing, poss sion of lands actually in use as a national cer tery was adjudged to the plaintiffs. The cision in that case was rested largely upon authority of Osborn v. Bank of U. S., 9 Whea 738, which was a suit in equity against an ficer of the State of Ohio, who sought to enfo one of her statutes which was in violation rights secured to the bank by the Constitut of the United States. The defendants, Osbo and others, denied the jurisdiction of the cou upon the ground that the State was the r party in interest and could not be sued, a that a suit against her officers, who were e cuting her will, was in violation of the Elever Amendment of the Constitution. To this jection, Chief Justice Marshall replied: "If State of Ohio could have been made a party feudant, it can scarcely be denied that would be a strong case for an injunction. T objection is that, as the real party cannot brought before the court, a suit cannot be s tained against the agents of that party; and ca have been cited to show that a court of cha cery will not make a decree unless all the who are substantially interested be made part to the suit. This is certainly true where it is the power of the plaintiff to make them parti but if the person who is the real principalperson who is the true source of the m chief, by whose power and for whose adva tage it is done-be himself above the law, be The ratio decidendi in this class of cases is very plain. A defendant sued as a wrongdoer, who seeks to substitute the State in his place, or to justify by the authority of the State, or to defend on the ground that the State has adopted his act and exonerated him, cannot rest on the bare assertion of his defense. He is bound to establish it. The State is a political corporate body, can act only through agents, and can command only by laws. It is necessary, therefore, for such a defendant, in order to complete his defense, to produce a law of the State which constitutes his commission as its agent, and a warrant for his act. This the defendant in the present case undertook to do. He relied on the Act of January 26, 1882, re-empt from all judicial process, it would be su quiring him to collect taxes in gold, silver, United States treasury notes, national bank currency, and nothing else, and thus forbidding his receipt of coupons in lieu of money. That, it is true, is a legislative Act of the government of Virginia, but it is not a law of the State of Virginia. The State has passed no such law, for it cannot; and what it cannot do, it certain-it ly, in contemplation of law, 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 defendant to receive the coupons tendered in payment of taxes, and declared every step to enforce the tax, thereafter taken, to be without warrant of law, and therefore a wrong. He stands, then, stripped of his official character, and, confessing a personal violation of the plaintiff's rights, for which he must personally answer, he is without defense. No better illustration of this principle can be found than that which is furnished by the case of U. S. v. Lee [supra], in which it was applied to a claim made on behalf of the national government. The action was one in ejectment, to recover possession of lands to which the plaintiff claimed title. The defendants were natural persons, whose defense was that they were in possession as officers of the United States under the orders of the government and for its uses. The Attorney-General called this aspect of the case to the attention of the court, but without making the United States a party defendant. It was decided by this court that versive of the best established principles to s that the laws could not afford the same ren dies against the agent employed in doing t wrong which they would afford against h could his principal be joined in the suit." T language it may be observed, was quoted wi approval in U. S. v. Lee. The principle whi enunciates constitutes the very foundati upon which the decision in that case rested. In the discussion of such questions the d tinction between the government of a State a the State itself is important and should be served. In common speech and common a prehension they are usually regarded as iden cal; and as ordinarily the acts of the gove ment are the acts of, the State, because with the limits of its delegation of power, the g ernment of the State is generally confound with the State itself, and often the former meant when the latter is mentioned. The St itself is an ideal person, intangible, invisib immutable. The government is an agent, an within the sphere of the agency, a perfect rep sentative; but outside of that it is a lawle usurpation. The Constitution of the State the limit of the authority of its government, a both government and State are subject to t supremacy of the Constitution of the Unit States and of the laws made in pursuan thereof. So that, while it is true in respect the government of a State, as was said in Lan ford v. U. S., 101 U. S., 341 [Bk. 25, L. e 1010], that the maxim that the King can do wrong has no place in our system of gover ment: yet it is also true, in respect to the Sta hat whatever wrong is attempted in its for the whole court in Lane Co. v. Oregon, table to its government and not Wall., 71, 76 [74 U. S., bk. 19, L. ed. 101, 104], for, as it can speak and act only that the people, through the Constitution of the whatever it does say and do must be United States, "established a more perfect That which, therefore, is unlawful union by substituting a national government, de so by the supreme law, the Con- acting, with ample power, directly upon the the United States, is not the word citizens, instead of the confederate government, of the State, but is the mere wrong and which acted with powers, greatly restricted, of those individual persons who false- only upon the States." In no other way can and act in its name. It was upon the the supremacy of that Constitution be mainthis important distinction that this tained. It creates a government in fact as d in the case of Texas v. White, well as in name, because its Constitution is the 774 U. S., bk. 19, L. ed. 227], supreme law of the land, "anything in the ged that the acts of secession Constitution or laws of any State to the conmed the civil war of 1861 were trary notwithstanding"; and its authority is enat acts of usurping State govern- forced by its power to regulate and govern the and act the acts of the States themselves, conduct of individuals, even where its prohias "the Constitution, in all its pro- bitions are laid only upon the States themselves. * to an indestructible Union, com- The mandate of the State affords no justificastructible States"; and that conse-tion for the invasion of rights secured by the the war itself was not a war between Constitution or the United States; otherwise or a war of the United States that Constitution would not be the supreme state, but a war of the United States law of the land. When, therefore, an indifal and usurping governments, vidual defendant pleads a statute of a State, not the States, but a rebellion which is in violation of the Constitution of the ted States. This is, in substance, United States, as his authority for taking or by Chief Justice Chase, deliver- holding property to which the citizen asserts of the court in Thorington v. title, and for the protection or possession of 1,9 [75 U. S., bk. 19, L. ed. which he appeals to the courts, to say that the en be declared, speaking of the judicial enforcement of the supreme law of the Government, that it was regarded land, as between the individual parties, is to litary representative of the in- coerce the State, ignores the fundamental prinst the authority of the United ciples on which the Constitution rests, as consame distinction was declared trasted with the Articles of Confederation Williams v. Bruffy, 96 U. S., which it displaced; and practically makes the 24 Led 716, 7201, and in Horn statutes of the States the supreme law of the 17 Wall, 570 (84 U. E., bk. 21, L. land within their respective limits. which were referred to and th. Clark, 97 U. S., 454, 465 ed 1071, 1075). on is essential to the idea of con- [292] When, therefore, by the Act of March 30, 1871, the contract was made by which it was agreed that the coupons issued under that Act should thereafter be receivable in payment of taxes, it was the contract of the State of Virginia, because, though made by the agency of the government, for the time being, of the State, that government was acting within the scope of its authority, and spoke with its voice as its true representative; and inasmuch as, by the Constitution of the United States, which is also the supreme law of Virginia, that contract, when made, became thereby unchangeable and irrepealable by the State, the subsequent Act of January 26, 1882, and all other like Acts which the battle field and the scaf-deny the obligation of that contract and forbid [293] tions and restraints upon its performance, are not the Acts of the State of russed with impunity by the Virginia. The true and real Commonwealth ed and appointed to guard, which contracted the obligation is incapable in roe them; and that, too, with law of doing anything in derogation of it. y of law, not only compel- Whatever having that effect, if operative, has but entitled to respect? And been attempted or done, is the work of its govprinciples of individual liber- ernment acting without authority, in violation matained, if, when violated, of its fundamental law, and must be looked als are forbidden to visit pen- upon, in all courts of justice, as if it were not Avdual offenders, who are the and never had been. The argument, therewrong, whenever they interpose fore, which seeks to defeat the present action, • the State? The doctrine is not to for the reason that it is a suit against the State The whole frame and scheme of of Virginia, because the nominal defendant is tions of this country, State merely its officer and agent, acting in its behalf, test against it. Their contin- in its name and for its interest, and amenable ot compatible with it. It is only to it, falls to the ground, because its chief te tf absolutism, pure, simple and postulate fails. The State of Virginia has done xmmatism, which is its twin; none of these things with which this defense r of the same evil birth. charges her. The defendant in error is not her mod by Chief Justice Chase, speaking officer, her agent or her representative, in the |