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the treasurer of the county, and the auditor, to sue for the recovery of taxes due by a tax-payer who has tendered interest coupons which have been detached from the bonds of the State of Virginia. The object of the enactment is to compel the holders of such coupons to prove their genuineness in court before their acceptance in payment of dues to the State, there being of coupons detached from the bonds of Virginia, according to the statement of the complainants' bill, more than four millions of dollars, in value, in the hands of the public at large, but held chiefly in London.
In case of disobedience to the commands of the statute by any of the officers, a fine is provided. On the sixth day of the ensuing June an order was made in the Circuit Court of the United States for the eastern district of Virginia, in the case of Cooper against Marye and others, restraining the parties defendant from executing the said statute of May 12th. But, in despite of the said restraining order, Attorney-General R. A. Ayres, attorney for the commonwealth in the county of Fauquier, John Scott, and the attorney for the commonwealth in Loudoun County, J. B. McCabe, proceeded to institute the prohibited suits. Each of these officers, upon a rule to show cause, was arraigned before United States Circuit Judge Bond, and adjudged guilty of a contempt of court. Each was condemned to pay a fine and the costs, to dismiss the suits, and be confined in the city jail of Richmond until the judgment was complied with. The defendants each obtained a writ of habeas corpus from the Supreme Court.
At the October term, 1887, Justice Stanley Matthews rendered a decision reversing the court below, the concluding part of which is as follows:
“The principal contention on the part of the petitioners is that the suit nominally against them is, in fact and law, a suit against the State of Virginia, whose officers they are, jurisdiction to entertain which is denied by the Eleventh Amendment to the Constitution. We adjudge the suit of Cooper and others against Marye and others, in which the injunctions were granted against the present petitioners, to be in substance and law a suit against the State of Virginia. It is therefore within the prohibition of the Eleventh Amendment to the Constitution. By the terms of that provision it is a case to which the judicial power of the United States does not extend. The Circuit Court was without jurisdiction to entertain it. All the proceedings in the exercise of the jurisdiction it assumed are null and void. The orders forbidding the petitioners to bring the suits, for the bringing of which they were adjudged to be in contempt of its authority, it had no power to make. The orders judging them in contempt were equally void, and their imprisonment is without the authority of law. It is therefore ordered that the petitioners be discharged.” In re Ayres, in re Scott, in re McCabe, 123 United States Reports, 443.
The victory over usurpation was conclusive. Mr. Justice Matthews, for the court, gave the following rule of interpretation of the Eleventh Amendment:
“To secure the manifest purpose of the constitutional exemption guaranteed by the Eleventh Amendment requires that it should be interpreted not literally and too narrowly, but fairly and with such breadth and largeness as effectually to accomplish the substance of its purpose. In this spirit it must be held to cover not only suits against a State by name, but those also against its officers, agents, and representatives, where the State, though not named as such, is nevertheless the only real party against which alone, in fact, the relief is asked, and against which the judgment or decree effectively operates."
Chief Justice Marshall, speaking for the court, in Osborn vs. the Bank of the United States, 9 Wheaton, 783, held that, however interested a State might be in the judgment, it was not to be considered as sued unless named in the record. The decision and interpretation of Justice Matthews, in the name of the court, departs from the opinion of Marshall. In the same case it was also held that as the State of Ohio itself, which threatened the franchises of the bank, could not be made a party defendant, the suit might be maintained against the officers and agents of the State who were intrusted with the execution of the laws thereof. The opinion of Justice Matthews was a decided victory over the centralizing opinion of the court dominated by the great Chief Justice.
Is the Supreme Court infallible ?
By no means; although the habit of reaffirming old opinions would appear so. If the States ad. journed the court sine die by an amendment to the Constitution, they would only recommit to themselves respectively delegated judicial powers. If the court shall ever attempt to consolidate the States, it is here predicted that this will be a remedy. There are two ways of punishing justices of the Supreme Court: by Congress cutting down the number of justices as they die, or abolishing the court by the States.
What of the income tax ?
The Supreme Court of the United States (1895) decided that the income derived from such a source was a direct tax, and the money collected by revenue officers under a law of Congress passed and promulgated, was, in consequence, refunded by the Secretary of the Treasury.
The nullification of the act produced great excitement. It was denounced as plutocratic. But a majority of the court had decided on a rehearing at the instance of the Attorney-General, and public opinion, that Congress had no right to di. rectly tax a class of citizens who were opulent, or owners of bond securities, or with fixed limited income. Taxation must be uniform. To be uniform it must be apportioned among the people of the States. A dissenting justice, Harlan, predicted great evils would flow from an opinion which demolished the power of the United States to levy a direct tax. It had served the country in the war between the States, and there might be good reason to impose such a tax again. The Chief Justice and a majority of the court thought there were other and fairer sources of revenue than direct Federal taxation.
Patrick Henry and William Grayson (the latter a senatorial colleague of Richard Henry Lee in the first Congress) opposed the ratification of the Constitution in the Virginia Convention, and one