[294] matter complained of, for he has acted not only | action sounding in damages, should sue for the that the action sounding in damages would lie, we are unable to perceive the line of distinction between that and the action of detinue. Yet the latter action would claim the specific article seized for the tax, and would obtain it, should the seizure be deemed unlawful." Although the plaintiff below was nominally the actor, the action itself is purely defensive. Its object is merely to resist an attempted wrong and to restore the status in quo as it was when the right to be vindicated was invaded. In this respect it is upon the same footing with the preventive remedy of injunction in equity, when that jurisdiction is invoked, and of which a conspicuous example, constantly followed in the courts of the United States, was the case of Osborn v. Bank of U. S., ubi supra. In that case the taxing power of the State was resisted on the ground that its exercise threatened to deprive the complainant of a right conferred by the Constitution of the United States. The jurisdiction has been constantly exerted by the Tried by every test which has been judicially suggested for the determination of the question, this cannot be considered to be a suit against the State. The State is not named as a party in the record; the action is not directly upon the contract; it is not for the purpose of controlling the discretion of executive officers or administering funds actually in the public treasury, as was held to be the case in Louisiana v. Jumel, 107 U. S., 711 [Bk. 27, L. ed. 448]; it is not an attempt to compel officers of the State to do the acts which constitute a performance of its contract by the State, as suggested by a minority of the court in Antoni v. Greenhow, 107 U. Š., 769, 783 [Bk. 27, L. ed. 468, 474]; nor is it a case where the State is a necessary party, that the defendant may be protected from liability to it after having answered to the present plaintiff; for, on this supposition, if the accounting officers of the state gov-courts of the United States to prevent the illegal ernment refuse to credit the tax collector with coupons received by him in payment of taxes, or seek to hold him responsible for a failure to execute the void statute, which required him to refuse coupons in payment of taxes, in any action or prosecution brought against him in the name of the State, the grounds of the judgment rendered in favor of the present plaintiff will constitute his perfect defense. And as that defense, made in any cause, though brought in a state court, would present a question arising under the Constitution and laws of the United State, it would be within the jurisdiction of this court to give it effect, upon a writ of error, without regard to the amount or value in dispute. In the case of Osborn v. Bank of U. S., 9 Wheat., 738, 853, Chief Justice Marshall put, by way of argument and illustration, the very case we are now considering. He said: "Controversies respecting boundary have lately existed between Virginia and Tennessee, between Kentucky and Tennessee, and now exist between New York and New Jersey. Suppose, while such a controversy is pending, the collecting officer of one State should seize property for taxes belonging to a man who supposes himself to reside in the other State, and who seeks redress in the federal court of that State in which the officer resides. The interest of the State is obvious. Yet it is admitted, that in such a case the action would lie, because the officer might be treated as a trespasser, and the verdict and judgment against him would not act directly on the property of the State. That it would not so act may, perhaps, depend on circumstances. The officer may retain the amount of the taxes in his hands, and, on the proceedings of the State against him, may plead in bar the judgment of a court of competent jurisdiction. If this plea ought to be sustained-and it is far from being certain that it ought not-the judgment so pleaded would have acted directly on the revenue of the State in the hands of its officers. And yet the argument admits that the action in such a case would be sustained. But suppose, in such a case, the party conceiving himself to be injured, instead of bringing an taxation of national banks by the officers of the States; and in Cummings v. Nat. Bk., 101 U. S., 153, 157 [Bk. 25, L. ed. 903, 904], it was laid down as a general principle of equity jurisdiction "that when a rule or system of valuation is adopted by those whose duty it is to make the assessment, which is designed to operate unequally and to violate a fundamental principle of the Constitution, and when this rule is applied not solely to one individual, but to a large class of individuals or corporations, equity may properly interfere to restrain the operation of this unconstitutional exercise of power." [295 And it is no objection to the remedy in such cases, that the statute whose application in the particular case is sought to be restrained is not void on its face, but is complained of only be cause its operation in the particular instance works a violation of a constitutional right; for the cases are numerous, where the tax laws of a State, which in their general and proper application are perfectly valid, have been held to become void in particular cases, either as unconstitutional regulations of commerce, or as violations of contracts prohibited by the Constitution, or because in some other way they operate to deprive the party complaining, of a right secured to him by the Constitution of the United States. At the present term of this court at least three cases have been decided in which railroad companies have been complainants in equity, seeking to restrain officers [296 of States from collecting taxes, on the ground of an exemption by contract, and no question of jurisdiction has been raised. The practice has become common, and is well settled on incontestable principles of equity procedure. Memphis R. R. v. Railroad Commissioners, 112 U. S., 609 [Bk. 28, L. ed. 837]: St. Louis, etc., R. Co. v. Berry, 113 U. S., 465 [Bk. 28, L. ed. 1055]; Ches. & O. R. Co. v. Miller, 114 U. S.. 176 [ante, 121]. It is still urged upon us, however, in argument, that notwithstanding all that has been or can be said it still remains that the controversy disclosed by the record is between an individual and the State; that the State alone has any real interest in its determination; that the practical effect of such determination is to control the action of the State in the regular and orderly administration of its public affairs; and that therefore the suit is and must be regarded as a suit against the State, within the prohibition of the Eleventh Amendment to the Constitution. Omitting for the time being the consideration already enforced, of the fallacy that lies at the bottom of this objection arising from the distinction to be kept in view between the government of a State and the State itself, the premises which it assumes may all be admitted, but the conclusion would not follow. The same argument was employed in the name of the United States in the Lee Case and did not prevail. It was pressed with the greatest force of which it was susceptible in the case of Osborn v. Bank of U. S., and was met and overcome by the masterly reasoning of Chief Justice Marshall. It appeared early in the history of this court, in 1799, in the case of Fowler v. Lindsey, 3 Dall., 411, in which that able magistrate, Mr. Justice Washington, pronounced his first reported opinion. On a motion to remove the cause by certiorari from the circuit tourt, on the ground that it was a suit in which a State was a party, it being an ejectment for lands, the title to which was claimed under grants from different States, he said: "A case which belongs to the jurisdiction of the Supreme Court, on account of the interest that a State has in the controversy, must be a case in which a State is either nominally or substantially the party. It is not sufficient that a State may be consequentially affected; for in such case (as 97] where the grants of different States are brought into litigation) the circuit court has clearly a jurisdiction. And this remark furnishes an an- It is contended, however, in behalf of the deswer to the suggestions that have been founded fendant in error, that the Act of January 26, on the remote interest of the State, in making 1882, under which he justified his refusal of the retribution to her grantees, upon the event of tender of coupons, does not impair the obligaan eviction." tion of the contract between the coupon-holdThe thing prohibited by the Eleventh Amend-er and the State of Virginia, inasmuch as it sement is the exercise of jurisdiction in a "suit in law or equity commenced or prosecuted against one of the United States by citizens of another State or by citizens or subjects of any foreign State." Nothing else is touched; and suits between individuals, unless the State is the party in a substantial sense, are left untouched, no matter how much their determination may incidentally and consequentially affect the interests of a State or the operations of its government. The fancied inconvenience of an interference with the collection of its taxes by the government of Virginia, by suits against its tax-collectors, vanishes at once upon the suggestion that such interference is not possible except when that government seeks to enforce the collection of its taxes contrary to the law and contract of the State and in violation of the Constitution of the United States. The immunity from suit by the State, now invoked vainly to protect the individual wrongdoers, finds no warrant in the Eleventh Amendment to the Constitution, and is in fact a protest against the enforcement of that other provision which forbids any State from passing laws impairing the obligation of contracts. To accomplish that result requires a new amendment which would not forbid any State from passing laws impairing the obligation of its own contracts. What we are asked to do is, in effect, to overrule the doctrine in Fletcher v. Peck, 6 Cranch, 87, and hold that a State is not under a constitutional obligation to perform its contracts; for it is equivalent to that to say that it is not subject to the consequences when that constitutional prohibition is applied to suits between individuals. We could not stop there. We should be required to go still further, and reverse the doctrine on which that constitutional provision rests, stated by Chief Justice Marshall in that case, when he said: "When, then, a law is in its nature a contract, when absolute rights have vested under that contract, a repeal of the law cannot devest those rights; and the act of annulling them, if legitimate, is rendered so by a power applicable to the case of every individual in the community. It may well be doubted whether the nature of society and of government does not prescribe some limits to the legislative power; and, if any be prescribed, where are they to be found if the property of an individual, fairly and honestly acquired, may be seized without compensation? To the Legislature all legislative power is granted; but the question, whether the act of transferring the property of an individual to the public be in the nature of legislative power, is well worthy of serious reflection." And, in view of such a contention, we may well add the impressive and weighty words of the same illustrious man, when he said, in Marbury v. Madison, 1 Cranch, 137: "The Government of the United States has been emphatically termed a government of laws and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.' cures to him a remedy equal in legal value to all The remedy thus substituted and declared ex- It is contended that, in view of this remedy, the case is ruled by the decision of this court in Antoni v. Greenhow, 107 U. S.,769 [Bk. 27, L. ed. 468]. We have, however, already shown, by extracts from the opinion of the court in that case, that the question involved in the [298] [299] [294] matter complained of, for he has acted not only | action sounding in damages, should sue for th that the action sounding in damages would lie we are unable to perceive the line of distinctio between that and the action of detinue. Yo the latter action wouid claim the specific articl seized for the tax, and would obtain it, shoul the seizure be deemed unlawful." Tried by every test which has been judicially suggested for the determination of the question, this cannot be considered to be a suit against the State. The State is not named as a party Although the plaintiff below was nominall in the record; the action is not directly upon the actor, the action itself is purely defensive the contract; it is not for the purpose of con- Its object is merely to resist an attempted wron trolling the discretion of executive officers or and to restore the status in quo as it was whe administering funds actually in the public the right to be vindicated was invaded. In th treasury, as was held to be the case in Louisi- respect it is upon the same footing with th ana v. Jumel, 107 U. S., 711 [Bk. 27, L. ed. preventive remedy of injunction in equity, whe 448]; it is not an attempt to compel officers of that jurisdiction is invoked, and of which the State to do the acts which constitute a per- conspicuous example, constantly followed i formance of its contract by the State, as sug- the courts of the United States, was the case gested by a minority of the court in Antoni v. Osborn v. Bank of U. S., ubi supra. In th Greenhow, 107 U. Š., 769, 783 [Bk. 27, L. ed. case the taxing power of the State was resiste 468, 474]; nor is it a case where the State is a on the ground that its exercise threatened necessary party, that the defendant may be pro- deprive the complainant of a right conferre tected from liability to it after having answered by the Constitution of the United States. Ti to the present plaintiff; for, on this supposi-jurisdiction has been constantly exerted by th tion, if the accounting officers of the state gov- courts of the United States to prevent the illeg ernment refuse to credit the tax collector with taxation of national banks by the officers of t coupons received by him in payment of taxes, States; and in Cummings v. Nat. Bk., 101 or seek to hold him responsible for a failure to S., 153, 157 [Bk. 25, L. ed. 903, 904], it was la execute the void statute, which required him to down as a general principle of equity jurisdi refuse coupons in payment of taxes, in any ac- tion "that when a rule or system of valuatio tion or prosecution brought against him in the is adopted by those whose duty it is to mal name of the State, the grounds of the judgment the assessment, which is designed to opera rendered in favor of the present plaintiff will unequally and to violate a fundamental pri constitute his perfect defense. And as that de- ciple of the Constitution, and when this rule fense, made in any cause, though brought in a applied not solely to one individual, but to state court, would present a question arising large class of individuals or corporations, equi under the Constitution and laws of the United may properly interfere to restrain the operatio State, it would be within the jurisdiction of this of this unconstitutional exercise of power." court to give it effect, upon a writ of error, without regard to the amount or value in dispute. And it is no objection to the remedy in su cases, that the statute whose application in th particular case is sought to be restrained is n void on its face, but is complained of only b cause its operation in the particular instan works a violation of a constitutional right; f the cases are numerous, where the tax laws a State, which in their general and proper a plication are perfectly valid, have been held become void in particular cases, either as u constitutional regulations of commerce, or violations of contracts prohibited by the Co stitution, or because in some other way the operate to deprive the party complaining, of right secured to him by the Constitution of t United States. At the present term of th court at least three cases have been decid in which railroad companies have been co plainants in equity, seeking to restrain office of States from collecting taxes, on the grou of an exemption by contract, and no questi of jurisdiction has been raised. The practi has become common, and is well settled incontestable principles of equity procedur Memphis R. R. v. Railroad Commissioners, 1 U. S., 609 [Bk. 28, L. ed. 837]: St. Louis, et R. Co. v. Berry, 113 U. S., 465 [Bk. 28, L. e 1055]; Ches. & O. R. Co. v. Miller, 114 U. § 176 [ante, 121]. In the case of Osborn v. Bank of U. S., 9 Wheat., 738, 853, Chief Justice Marshall put, by way of argument and illustration, the very case we are now considering. He said: "Controversies respecting boundary have lately existed between Virginia and Tennessee, between Kentucky and Tennessee, and now exist between New York and New Jersey. Suppose, while such a controversy is pending, the collecting officer of one State should seize property for taxes belonging to a man who supposes himself to reside in the other State, and who seeks redress in the federal court of that State in which the officer resides. The interest of the State is obvious. Yet it is admitted, that in such a case the action would lie, because the officer might be treated as a trespasser, and the verdict and judgment against him would not act directly on the property of the State. That it would not so act may, perhaps, depend on circumstances. The officer may retain the amount of the taxes in his hands, and, on the proceedings of the State against him, may plead in bar the judgment of a court of competent jurisdiction. If this plea ought to be sustained-and it is far from being certain that it ought not-the judgment so pleaded would have acted directly on the revenue of the State in the hands of its It is still urged upon us, however, in arg officers. And yet the argument admits that the ment, that notwithstanding all that has be action in such a case would be sustained. But or can be said it still remains that the conti suppose, in such a case, the party conceiving versy disclosed by the record is between an i himself to be injured, instead of bringing andividual and the State; that the State alone h rest in its determination; that the et of such determination is to conof the State in the regular and stration of its public affairs; and the suit is and must be regarded * the State, within the prohiEventh Amendment to the Coning for the time being the conady enforced, of the fallacy that om of this objection arising from to be kept in view between the of a State and the State itself, the tassimes may all be admitted, would not follow. The same as employed in the name of the the Lee Case and did not prepressed with the greatest force of sceptible in the case of Osborn Sand was met and overcome ly reasoning of Chief Justice I appeared early in the history of 27, in the case of Fowler v. 411, in which that able maJustice Washington, pronounced arted opinion. On a motion to reby certiorari from the circuit round that it was a suit in which party, it being an ejectment for to which was claimed under erent States, he said: "A case to the jurisdiction of the Suon account of the interest that a theatroversy, must be a case in ther nominally or substantially sufficient that a State may be affected; for in such case (as rants of different States are brought the circuit court has clearly a And this remark furnishes an anIt is contended, however, in behalf of the deestions that have been founded fendant in error, that the Act of January 26, rest of the State, in making 1882, under which he justified his refusal of the grantees, upon the event of tender of coupons, does not impair the obliga tion of the contract between the coupon-holdhibited by the Eleventh Amend-er and the State of Virginia, inasmuch as it seexercise of furisdiction in a "suit cures to him a remedy equal in legal value to all ey commenced or prosecuted that it takes away, and that consequently, as the the United States by citizens of State may lawfully legislate by changing remor by citizens or subjects of any edies so that it does not destroy rights, the remthing else is touched; and edy thus provided is exclusive and must defeat dividuals, unless the State is the the plaintiff's action. tal sense, are left untouched, *th their determination may in- clusive is one that requires the taxpayer demanding to have coupons received in payment of taxes, first, to pay the taxes due from him in money, under protest, when, within thirty days thereafter, he may sue the officer to recov er back the amount paid, which, on obtaining judgment therefor, shall be refunded by the auditor of public accounts out of the treasury. By the amendment passed March 13, 1884, the coupons tendered are required to be sealed up and marked for identification, filed with the petition at the commencement of the suit, produced on the trial as evidence of the tender, and delivered to the auditor of public accounts to be canceled when he issues his warrant for the amount of the judgment. What we are asked to do is, in effect, to overrule the doctrine in Fletcher v. Peck, 6 Cranch, 87, and hold that a State is not under a constitutional obligation to perform its contracts; for it is equivalent to that to say that it is not subject to the consequences when that constitutional prohibition is applied to suits between individuals. We could not stop there. We should be required to go still further, and reverse the doctrine on which that constitutional provision rests, stated by Chief Justice Marshall in that case, when he said: "When, then, a law is in its nature a contract, when absolute rights have vested under that contract, a repeal of the law cannot devest those rights; and the act of annulling them, if legitimate, is rendered so by a power applicable to the case of every individual in the community. It may well be doubted whether the nature of society and of government does not prescribe some limits to the legislative power; and, if any be prescribed, where are they to be found if the property of an individual, fairly and honestly acquired, may be seized without compensation? To the Legislature all legislative power is granted; but the question, whether the act of transferring the property of an individual to the public be in the nature of legislative power, is well worthy of serious reflection." And, in view of such a contention, we may well add the impressive and weighty words of the same illustrious man, when he said, in Marbury v. Madison, 1 Cranch, 137: "The Government of the United States has been emphatically termed a government of laws and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right." antially affect the interests operations of its government. venience of an interference of its taxes by the governby suits against its tax-colcnce upon the suggestion ce is not possible except weeks to enforce the coltrary to the law and conati in violation of the Conted States. The immunity 72 Male, now invoked vainly to tal wrongdoers, finds no eventh Amendment to the is in fact a protest against of that other provision which tam passing laws impairing stracts. To accomplish *** a new amendment which ty State from passing laws ris gados of its own contracts. The remedy thus substituted and declared ex It is contended that, in view of this remedy, the case is ruled by the decision of this court in Antoni v. Greenhow, 107 U. S.,769 [Bk. 27, L. ed. 468]. We have, however, already shown, by extracts from the opinion of the court in that case, that the question involved in the [298] [299] present proceeding was not covered by that judg-1 of the United States for illustration and exam But here the plaintiff did not seek any compulsory process against the officer to require him specifically to receive the coupons tendered. He offered them and they were refused. He chose to stand upon the defensive and maintain his rights as they might be assailed. His right was to have his coupon received for taxes when offered. That was the contract. To refuse to receive them was an open breach of its obligation. It is no remedy for this that he may acquiesce in the wrong, pay his taxes in money which he was entitled to pay in coupons, and bring suit to recover it back. His tender, as we have already seen, was equivalent to payment, so far as concerns the legality of all subsequent steps by the collector to enforce payment by distraint of his property. He has the right to say he will not pay the amount a second time, even for the privilege of recovering it back. And if he chooses to stand upon a lawful payment once made, he asks no remedy to recover back taxes illegally collected, but may resist [300] the exaction, and treat as a wrongdoer the officer who seizes his property to enforce it. It is suggested that the right to have coupons received in payment of taxes is a mere right of set-off, and is itself but a remedy subject to the control of legislation. Ordinarily, it is true, the right to set off mutual independent debts, by way of compensation and satisfaction, is dependent on the general law, does not enter into the contract, although it may be the lex loci contractus, and is dependent for its enforcement upon the lex fori, when suit is brought, and consequently may be changed by the Legislature without impairing vested rights. But in such cases the right is entirely dependent upon the general law, and changes with it. It is different when, as in many cases of equitable setoff, it inheres in the transaction, or arises out of the relations of the parties; and it may in any case, as it was in this, be made the subject of contract between parties. When this is done, it stands upon the footing of every other lawful contract, upon valuable consideration, the obligation of which cannot be impaired by subsequent legislation. The answer is obvious and complete. Vi ginia, by a contract which the Constitution the United States disables her from impairing has bound herself that it shall be otherwis The State has agreed that the coupons cut fro her bonds shall be received in payment of tax due to her, as though they were money. Whe complied with the agreement, and in legal co templation has paid the debt he owed the Stat So far as that tax is concerned, and every st taken for enforcing its payment in disregard that tender, the coupon holder is withdraw from the power and jurisdiction of the Stat He is free from all further disturbance, and securely shielded by the Constitution in his in munity. No proceeding, whatever its prete which does not respect this right, can be ju cially upheld. The question is not of the re sonableness of a remedy for a breach of t contract to receive the tendered coupons in pa ment of the tax; it is whether the right to ha them so received, and the use of that right a defense against all further efforts to exact a compel payment of the tax, in denial and d ance of that right, can be taken away with a violation of that provision of the Consti tion which prohibits the States from passi laws which impair the obligation of contrac Certainly, a law which takes from the pa his whole contract, and all the rights which was intended to confer, must be regarded a law impairing its obligation. Another point remains for consideration. S tion 721, R. S., provides that "The laws of several States, except where the Constituti treaties or statutes of the United States otl wise require or provide, shall be regarded rules of decision in trials at common law, in courts of the United States, in cases where t apply"; and section 914, R. S., declares t "The practice, pleadings and forms and mo of proceeding in civil causes, other than equ and admiralty causes, in the Circuit and Dist Courts, shall conform, as near as may be the practice, pleadings and forms and mode proceeding existing at the time in like ca in the courts of record of the State wi which such Circuit or District Courts held, any rule of court to the contrary notw standing." Upon these sections it is arg that, admitting the Acts of the General As bly of Virginia of January 26, 1882, and amendment by the Act of March 13, 188 be unconstitutional and void, so far as they bid tax collectors from receiving coupon payment of taxes, nevertheless, as the State It is urged upon us, however, that in a rev-control over the forms of action and mode enue system, a provision of law which gives to a party complaining of an illegal exaction of taxes the right to recover back the amount in dispute only after previous payment under protest, as the sole remedy against either the officer or the government, is a just and reasonable rule, sufficiently securing private rights, and convenient, if not necessary, to the interests of the public. We are referred to the revenue laws | proceeding by way of remedy, and has for den, in cases where the tax collector has ref coupons in payment of taxes, any persona tion against him other than the suit to red back the tax demanded and paid under pro the same law, by force of the Revised Sta of the United States, must govern in the c of the United States. It is not entirely clear, on the face of the |