Plaintiffs Brief — McCullough v. Commonwealth of Virginia

-Ocroper TERM, 1896.

No. 125.

A. A. McCULLOUGH,

Wi 5 ;

THE COMMONWEALTH OF VIRGINIA.

Reply Brief of

_Ricnarp L. Maury,

For the Plaintiff.

IN THE

Supreme Court « United States,

A. A. McCULLOUGH,

v,

THE COMMONWEALTH OF VIRGINIA.

Repry Brier or Ricnarp L. Maury, ror rae Piarnrirr.

Uvon THE Jurispiction.

It abundantly appears, as well from the record as the

statements and briefs of counsel, already filed, that this is a

case depending upon legal principles which, in this tribunal,

have been already so often adjudicated and affirmed, that in

the later decisions thereupon it has been expressly deter-

mined that they are no longer open to controversy or de-

nial. (McGahey v. Virginia, 185 U. 8. 662.)

‘It is, in short, a case instituted by the petitioner after

your decisions just referred to (and therefore with full faith

and reliance upon their sufficiency to support the claim

asserted), to procure the reception of his coupons for his

taxes as provided by the act under which he was proveed-

ing, wherein, by the decision of the highest court of Vir-

ginia dismissing the petition, the appellant is denied, not

only the remedy which the statute affords, and which the

Supreme Court of the United States has declared to be

the absolute right of every holder of these coupons, pro-

tected by the Constitution and laws of the United States,

of which they cannot lawfully be deprived (Antoni v.

Greenhow, 107 U. 8. 771); but his coupon contract, which

2

the same supreme tribunal has adjudged to be valid, legal,

inviolable, unalterable, protected and shielded by the Con-

stitution and laws of the United States (Poindexter v. Green-

how, 114 U. 8. 279; MeGahey v. Virginia, 135 U.S. 668),

is now declared to be utterly null and void. Thus, by in-

direction, but eonclusively, validity is given to an act of

the Virginia Legislature, passed after the issuance of the

coupons, which forbids that they be received for taxes, an

act which both this court and the said Virginia court have

time and again and invariably held to be obnoxious to the

Constitutions, both State and Federal. The act thus vali-

dated is the act of 1872-3, frequently referred to in the

many Virginia coupon decisions here, and has been re-

affirmed and adopted as section 399 of the Virginia Code

of 1887, whose words are as follows: “It shall not be lawful

for any officer charged with the collection of taxes... ..

to receive in payment thereof anything else than gold or

silver coin, or United States treasury notes, or national

bank-notes.” And, indeed, validity is thus given to the

many other acts of Virginia forbidding the use of these

coupons, all of which your honors have decided to be in-

valid because they impaired the obligation of this contract.

They are fully described in the decisions to which we will

presently refer.

It is not, therefore, such a case as the distinguished At-

torney-Gencral supposes and cites authority for, because the

question for your determination now is not whether you will

follow the first or the last State decision, but whether you

will follow your own, or that of the Virginia Court of

Appeals.

It is a case of a suitor pursuing a remedy, as a means of

procuring the reception of his coupon for his tax, which the:

Supreme Court of the United States had previously decided

is his, and cannot, withont violation of the United States

Constitution, be denied him—a remedy which the said court

had decided was a right inherent to every coupon. (Antoni

v. Greenhow, 107 U. 8. 769.) He is, therefore, asserting a

3

Federal right, and it is denied him by dismissing his peti-

tion.

It is a case of a suitor asserting a contract right protected

by the Constitution and laws of the United States; and a

decision that his alleged contract is not a contract at all, and

therefore not protected by the Constitution and laws of the

United States, for although in his petition below he did

not in terms claim the above Federal rights, yet by all

the rules of pleading and procedure he has claimed them,

because one who sues claims and asserts every right and

every law and every decision which supports his claim, for

these are the law of the case and are all relied upon and in-

volved without being specially plead; and the opinion of the

court below and its decree thereon clearly show that the

Federal right is denied him.

It is a decision to support which the Virginia court hath

construed and interpreted a decision of the Supreme Court

of the United States, hath declared it to be exactly what the

Supreme Court itself declared it was not, and which, there-

fore, violates Section 1, Article [V., United States Constitu-

tion. And, failing to recognize and follow said decision as

the supreme law of the land, being the decision of the

Supreme Court of the land, it also violates Section 1, Article

III., and for a like reason Section 2, Article VI.; for it is

submitted that the Supreme Court being the ultimate tri-

bunal to ascertain and declare what is the law of the United

States, its declarations must, at least, be of equal force and

effect to the Constitution and laws and treaties which it is

empowered to interpret. Its decision, therefore, must be

considered as included in, and as part of, that supreme law

of the land which the judges in every State are directed to

recognize and obey, and which these Virginia judges have

attempted to evade and utterly disregard.

It is a decision the direct and necessary result of which is

to validate a law of the State passed subsequent to the con-

tract, which the Supreme Court and the State court buth

have held to be obnoxious to that clause of the Constitution

4

of the United States which forbids that contracts be im-

paired. (Antoni v. Greenhow, 107 U. 8. 771.)

It is a decision which more than impairs the contract as-

serted, for it destroys it, and decides that the alleged con-

tract is not a contract at all.

But for the special feature herein (which most assiduous

search has failed to find in any of the cases where jurisdic-

tion has been declined), that the alleged contract has already

been decided in this court to be such, and within the pro-

tection of the United States, it might be logically answered

that the decision complained of is but one of construction,

not of validity, and only determined that the compact which

the plaintiff denominated a contract was not sich. But this

may not be said within these walls, for here, at least, it

cannot and will not be denied that the contract is a valid

and binding one, and can no longer be assailed or its

validity disputed. This court itself has so determined many

times. (MecGahey v. Virginia, 135 U.S. 668.)

It is a decision in violation of his right under his contract,

because it denies to the petitioner the only remedy he hath

to procure the reception of his coupons in payment of his

taxes, the proceeding he adopted being the sole remedy

afforded him by the State, whose statute, vited upon the first

page of the petition for this writ of error, provides that

when the conpons thus presented shall have been adjudi-

cated genuine they shall be received for the taxes for which

they were tendered. (§ 408; p. 2 of the Record.)

Thus there are many Federal questions involved, any one

of which will suttice for your jurisdiction.

Perhaps, indeed, there are others besides those already in-

dicated, for, as the contract sued on, and which this court has

adjudicated to be valid, inviolable, and within the protection

of the Constitution of the United States, has, by the decision

complained of, been declared to be indivisible, void in part,

and, therefore, void altogether, and as a part of this con-

tract is a promise to pay money, that is to say, legal money

as determined by the laws of the United States, the case

5

falls within the rule of Woodruff v. Mississippi, 162 U. &.

302, where it was held that a Federal question had been de-

cided, and that a writ of error would lie.

It is, therefore, apparent that there are now involved, in

the decision complained of, the identical questions which

this court holds that it has finally disposed of. You have

said in McGahey v. Virginia, 185 U.S. 668: “ We have no

hesitation in saying that the act of 1871 was a valid ect,

and that it did and does constitute a contract between the

State and the holder of the bonds issued under it, and that

the holders of the coupons of said bonds . . . are entitled,

by a solemn engagement of the State, to use them in payment

of State taxes,..... this question may be considered,

therefore, as foreclosed and no longer open for considera-

tion.” Aiso that the act of 1872~73 (p. 9, chap. 12, par.

1), Code of Virginia, edition 1887, § 399, which forbids the

reception of coupons for taxes, is unconstitutional and void.

(Hartman v. Greenhow, 102 U. S. 672; Antoni v. Green-

how, 107 U. 8. 771.) And you have also determined that

the remedy adopted below by the plaintiff, the culmination

of which, the statute says, shall be the reception of the

coupons tendered for taxes, for section 408, Virginia Code,

(Record, p. 2), provides, “If it be finally decided in favor of

the petitioner that the coupons tendered by him are genuine

coupons, legally receivable for taxes, debts, and demands,

then the judgment of the court shall be certified to the

treasurer, who, upon receipt thereof, shall receive said cou-

pons and shall refund the money,” ete., is inherent to the

coupon contract, and the absolute right of any tax-payer

holding these coupons. (Antoni v. Greenhow, 107 U. 8S.

775.) And, furthermore, you haye also decided that the

effect of your decision in Vashon v. Greenhow, 135 U. 8.

713 and 716, did not invalidate the entire coupon contract.

In contravention of every one of these decisions, the Court

of Appeals of Virginia now determines the direct converse of

each—. é., that the act of 1871 (and 1879) 1s unconstitn.

tional, that the coupon contract 1s null and void, that the

6

act forbidding the receipt of coupons for taxes 1s valid, and

that the plaintiff hath nor the right to the remedy he used,

for the court dismissed his petition, and that, too, without

even returning to him either the coupons or the money

which he had delivered to the collector, as he was required

to do by the law (Record, p. 1, § 407, and p. 9), thus de-

priving him of his property without due process of law.

It will not be denied that the object and intent of the

Constitution and laws of the United States and of the judi-

ciary act was to confer jurisdiction upon Federal courts to

afford protection to every right and privilege conferred upon

a citizen by our Constitution and laws. Nor will it be

denied that one of such rights is that the judgments and de-

cisions of the Supreme Court shall be accepted, followed,

and obeyed by all, and cannot be misinterpreted and per-

verted to his prejudice and injury. Nor can it be contro-

verted that any one asserting any claim, right, or demand by

iegal proceedings, thereby in effect claims every right, title,

privilege, immunity of, and authority under, all laws, both

State and Federal, as well as of all decisions of the Supreme

Court which support his claim; or that in Virginia the

opinion of the Court of Appeals is made part of the record

of the case. (Virginia Constitution, § 4, Art. VI.)

If these postulates be correct, then we maintain that our

case falls clearly within the rule of jurisdiction stated by

the Chief Justice in Sayward v. Denny, 158 U. S. 184:

“The right on which the party relies must have been

called to the attention of the court in some proper way, and

the decision against the right claimed; or, at all events, it

must appear from the record, by clear and necessary in-

tendment, that the Federal question was directly involved,

so that the State court could not have given judgment with-

out deciding it; that is, a definite issue as to the possession

of the right must be distinctly deducible from the record

before the State court can be held to have disposed of such

Federal question by its decision.”

If, by “reasonable intendment” this court will be satisfied,

7

for jurisdictional purposes, that a Federal question has been

decided, how much more by the express language of the court

below itself stating in terms its decision of a Federal question.

“If the facts and the decision are such as to show that

a Federal right was adversely decided below, the juris-

diction of the Supreme Court of the United States is not

defeated by showing that the record does not mention a Fed-

eral question, or state in terms that one was presented below.

5 Whenever rights acknowledged and protected

by the Federal Constitution are denied under the shield

of State legislation, this court is authorized to interfere.

The true test is, not whether the record exhibits

an express statement that a Federal question was presented,

bat whether such a question was decided, and decided ad-

versely to the Federal right.” (Murray v. Charleston, 6

Utto, 432.)

“In order to sustain the jurisdiction of this court upon

the ground that a Federal question is presented, it should

appear. . . . that such question was apparent upon

the record, and that a decision was made thereon.” (New

Orleans v. Water- Works, 142 U.S. 79.

We submit that it matters not how or when the question

was presented, if in very fact it was presented, and if in

very fact it was decided; it is immaterial how the wrong

has been done, if it has been done, and it comes to the

same thing here, if the right has been denied, whether the

court below has misconstrued the act of 1871 or the de-

cision of the United States Supreme Court.

In Furman v. Nichol, 8 Wall. 44, the rule is thus stated :

“Tf the record shows . . . . that the constitutional provi-

sion did arise, and that the court below could not have

reached the conclusion and judgment it did reach without

applying it to the case in hand, then the jurisdiction of the

court attaches. It is sufficient to confer jurisdiction that the

question in the case was decided adversely to the plaintiffs,

and that the court was induced by it to make the judgment

it did.”

8

In Davis v. Packard, 6 Peters, 49, the court said: “It

has also been settled, that in order to give the court juris-

diction under the twenty fifth section of the judiciary act, it

is not necessary that the record should state in terms that

an act of Congress was, in point of fact, drawn in question.

It is sufficient if it appears from the record that an act of

Congress was applicable to the case, and was misconstrued.”

In Satterlee v. Matthewson, 2 Peters, 410, the court said:

“ One of these principles is, that if it sufficiently appear from

the record itself that the repugnancy of a statute of a State

to the Constitution of the United States be drawn in ques-

tion, or that that question was applicable to the case, this

court has jurisdiction of the cause,-. . . . although the re-

cord should not in terms state a misconstruction of the

Constitution of the United States, or that the repugnancy of

the statute .... to any part of thel Constitution of the

United States was drawn into question.”

Mr. Phillips, in his most excellent work on the “United

States Supreme Court Practice,” page 179, fifth edition,

thus summarizes the law: “It is now established that the

jurisdiction cannot be avoided by the mere absence of ex-

press reference to some provision of the Constitution.

Wherever rights protected by it are denied or invaded under

the shield of State legislation, this court will interfere.”

[We respectfully submit that the distinguished writer was

too cautions here, and that the limitation he speaks of does

not exist, for Federal courts must have jurisdiction to pro-

tect Federal rights, from whatever source they spring, no

matter how invaded.] ‘The form in which the Federal

question is raised in the State court is of minor importance,

if, in fact, it was raised and decided.”

“There is nothing in the act of 1867 (Rev. Stat. § 709)

in reference to the mode in which it shall appear.”

“Undue importance is often attributed to the inquiry

whether the pleadings in tie Stete court expressly assert a

right under the Federal Constitution. The true test is, not

whether the record exhibits an express statement that a

9

Federal question was presented, but whether such a ques-

tion was decided, and decided adversely to the Federal

right. It has always been held that the revisory jurisdic-

tion exists over the judgments of the State courts when the

determination of the court could not have been made with-

ont deciding upon a right or authority claimed to exist under

the Constitution, laws, or treaties of the United States, and

deciding against that right; and very little importance has

been attached to the inquiry whether the Federal question

was formally raised.”

It would thus seem that it is not necessary to claim in

express terms the Federal right relied on, if, in fact, it has

been denied.

Let us examine, then, whether any Federal right Aas

been denied McCullough.

The case of Havemeyer v. Iowa, 3 Wall. 294, seems

surely to support our position that the destruction ‘of a con-

tract, hitherto adjudged valid by a decree of court, is an

impairment, and therefore within the meaning of the Con-

stitution of the United States, and the judiciary act.

It was a suit involving the validity of issue of certain

county bonds, which, until then, had been invariably recog-

nized as valid, but which had recently been decided to be

invalid by reason of a new interpretation given to an old

law, in existence before the bonds were issued. The Su-

preme Conrt held that such judicial iaterpretation would be

an impairment of the contract, saying that if the contract,

when made, was valid by the Constitution and laws of the

State as then expounded by the highest authority whose

duty it was to administer them, no subsequent action by the

Legislature or the judiciary can impair its’ obligation, which

rule, the court says, was established in Gelpeke v. Dubuque,

1 Wallace, 175, upon careful consideration, and that it rests

upon a solid foundation, and will not be departed from.

This rule there laid down is: “If the contract, when made,

was valid by the laws of the State as then expounded and

administered in its courts of justice, its validity and obliga-

10

tion cannot be impaired by any subsequent legislation, or

decision of its courts. The same principle applies, where

there is a change of judicial decision, as to the constitutional

power of the Legislature to enact the law.” Said the court:

“To this rule, thus enlarged, we adhere. It is the law of

this court. It rests upon the plainest principle of justice.

To hold otherwise would be as unjust as to hold that rights

acquired under a statute may be lost by its repeal.” May

we not add, as did Mr. Justice Swayne, “The rule embraces

the case” ?

We think that the language of the court in Delmas v. The

Merchants Insurance Company, 14 Wall. 661, applies with

great force, especially when it is remembered that it cannot

now be denied by any one within ¢his court that in the case

at bar “there is a contract to be impaired.” If, then, the

court jealously takes jurisdiction upon the mere suggestion

that there is a “contract to be impaired,” how much more

readily will it do so when it has itself already decided

that there is a “contract to be impaired, and that it cannot

be impaired”! It is this special feature in our case that

differentiates it from the many decisions which may be cited

wherein the preliminary question was, “contract, or no con-

tract?” and the State court held that there was none; for

by the Supreme Court, the supreme lawgiver of the land,

acting under authority conferred by the Constitution and

the iaws of the United States, it has been determined that

ours is a contract, valid and binding, which no authority of

the State can modify or change. And it is the fact that

‘there are such decisions, which brings every case instituted

upon this contract after these decisions were made, within

the rules of jurisdiction that the Federal right should be

claimed, without making special mention of them.

The following is the language referred to: “ Besides, this

court has always jealously asserted the right, when the ques-

tion before it was the impairment of a contract by State

legislation, to ascertain for itself if there was a contract to

be impaired. If it were not so, the constitutional provision

_—ceeeee 5

ee

11

could always be evaded by the State courts by giving such

a construction to the contract, or such decision concerning

its validity, as to render the power of this court of no avail

in upholding it against unconstitutional legislation.”

It appears, therefore, that, while a record which shows

suit upon a contract (being that which the Constitution says

shall not be impaired by the State), and a decision by the

State court that there was no contract, might not present a

Federal question, it would be otherwise if the Supreme Court

had already determined that there was a contract, and that

it was protected by the United States Constitution.

In the first case, jurisdiction might fail because the State

judginent was that there was no “ contract, and therefore no-

thing to impair.” But this is not always so. In the latter,

jurisdiction would attach because, as the Supreme Court has

established the contract which the State court afterwards

holds to be non-existent, there must, of necessity, be an im-

pairment, and, therefore, of necessity, jurisdiction to deter-

mine whether the contract were snch an one as the Constitu-

tion referred to, and whether the impairment snch as it

forbids.

In such a case, therefore, it is plain that some “right or

privilege, on which the recovery depends, will be defeated by

one construction of the Constitution or laws of the United

States, or sustained by another, and, therefore, the case will

be one arising under the Constitution and laws of the United

States.” (Pacific Rk. R. Co. v. California, 118 U.8. 109.)

In like manner it hath been decided, in Jefferson Bank

v. Skelly, 1 Black. 436, that this court hath appellate

power to reverse decisions of the highest State courts when-

ever the latter shall adjudge that not to be a contract which

is alleged in legal proceedings to be one within the mean-

ing of that clause of the Federal Constitution which forbids

impairment.

Mention has already been made that the decision com-

plained of necessarily gives effect to many laws which im-

pair the obligation of the contract. The various decisions in

12

the Virginia conpon ce ses give a fall history and a detailed

account of their character and application. For the sake

of brevity we will base our argument upon a single one

alone, which, like all the others, is validated by the decision

complained of, and which thus brings the case within the

constitutional inhibition, althongh the law actually inter-

preted by the decision complained of was anterior to the

making of the contract relied on. The law referred to as

being thus validated is the act of March 7, 1872, em-

bedied in the Code of Virginia, 1887, Section 399.

It forbids the collectors to receive aught in payment of

taxes save money. Hitherto it has been held uniformly,

both by State and Federal courts, to be unconstitutional, be-

cause it impaired the obligation of the coupon contract.

(Antoni v. Greenhow, 107 U. 8. 769, where the court

also said, that “any act of the State which forbids the

receipt of these coupons for taxes is a violation of the con-

tract and void as against coupon holders.”) And in another

connection, and considering the whole body of the many

coupon laws in Virginia so fully described by the court in

McGahey v. Virginia, 135 U. 8. 662, the Supreme Court

said (Poindexter v. Greenhow, 114 U.S. 304, 306): “The Acts

of Assembly in question must be taken together, as one is

but an amendment of the uther. The scheme of the whole

is indivisible. It cannot be separated into parts; it must

stand or fall together. . . . The whole legislation, in all

its parts as to creditors affected by it and not consenting to

it, must be pronounced null and void. Such is the sentence

of the Constitution itself, the fundamental and supreme law

for Virginia, as for all the States, and for all the people,

both of the States separately and of the United States, and

which speaks with sovereign and commanding voice, expect

ing and receiving ready and cheerful obedience, not so much

for the display of its power as on account of the majesty of

its authority and the justice of its mandates.” And in

MeGahey v. Virginia the court reiterated this, saying in

effect that all the State laws which were passed for the pur-

13

pose of restraining the use of coupons for taxes were unco?-

stitutional and invalid so far as they had such effect. The-

State court now declares that there is no coupon contract,

and this in effect validates this law. But thereby the Fed-

eral question cannot be avoided, or a Federal right be thus

deprived of the protection of the United States Court. This

feature also differentiates our case from many that may be

cited, where the courts have held that the judicial construe-

tion of a law, passed before the contract was made, cannot

be held to impair what was not in existence, and therefore

there is no Federal question involved in such decision, and

brings our case within the rule, necessary to prevent just such

evasions, that if the decision give validity to a subsequent

law which impairs the obligation of the contract, jurisdiction

will attach.

Therefore, “if by necessary operation the decision com-

plained of gives effect to some law which impairs the ob-

ligation of the particular contract in question,” a Federal

question will be involved. (Lehigh Water Co. v. Huston, 121

U.S. 388.)

Onur position in this respect is also supported by the deci-

sion in Chicago Life Ins. Co. v. Needles, 113 U. 8. 574, the

reasoning of which is most applicable to the case at bar. Said

the court: “The Supreme Conrt of Illinois did not in terms

pass upon the claim . . . . that the statutes in question were

in derogation of rights and privileges secured to appellant

under the Constitution of the United States. But the final

judgment necessarily involved an adjudication of that claim,

for if the statutes under authority of which the auditor pro-

ceeded are repugnant to the national Constitution, the judg-

ment could not properly have been rendered. This cout,

therefore, has jurisdiction to inquire whether any right or

privilege protected by the Constitution of the United S ates

has been withheld or denied by the judgment below, and

our jurisdiction is not defeated, because it may appear,

upon examination of this Federal question, that the statutes

are not so repugnant. Such an examination itself involves

14

the exercise of jurisdiction, and the motion to dismiss is

denied.”

Cases have occurred where, when legislative repeals or

attacks upon contracts have been found to be such as the

Supreme Court would declare void, State courts have at-

tempted to avoid its jurisdiction, and at the same time

destroy the coutract by a forced construction of the laws in

existence when it was made, and thus frustrate an appeal.

But thus to accomplish by indirection what cannot be directly

done is forbidden, and in such cases it is found that the

Supreme Court has often taken jurisdiction.

In order that the statute of 1872, section 399 of the Code

of 1887, should impair the contract obligation of the coupon,

it is not necessary that that statute should itself be made the

reason for declaring the contract invalid, or for restricting

its full and proper obligation. Even if, as in the case at

bar, the highest court of Virginia declares the contract in-

valid on grounds independent of the later act of 1872 (Code

of 1887, § 399), still, if the declared invalidity of the con-

tract, though placed upon such independent or general

grounds, necessarily imparts to the subsequent statute an

effect which it could not have but for the contract’s invalid-

ity, the contract is impaired by the later act. The essential

thing is only that the subsequent act derives an effect which

it cannot properly have if the contract is valid. An incon-

sistency between the subsequent statute, thus effectuated,

and the rights growing out of the contract, correctly con-

strued, makes a case of impairment of the obligation of the

contract. It is the effect actually given to a statute subse-

quent to a contract, and claimed to impair it, which deter-

mines whether, if the contract exists, the statute does in

fact impair it. The statute, as impliedly construed by the

State court, and with the operation there accorded it, is

what this court looks at to decide whether a contract has

had its obligation impaired.

In the case at bar it is manifest that the tax-collector re-

fused to receive McCullough’s coupons outright in payment

15

of his taxes because he was forbidden to do so by section

399 of the Virginia Code. It was in obedience to this law

that he acted as he did, and accepted the coupons, condi-

tionally, until “verified.” This law, therefore, thongh not

specially plead, becomes a part of this case; it was, in fact,

the very reason why there was a case at all, for withont it

the coupons would have been at once received in payment

of the tax; and, as the effect of the decision complained of

is to validate it entirely, the Federal question is apparent.

University v. People, 99 U.S. 309, sustains this proposi-

tion. The Supreme Court of the State of Illinois gave effect

to an act of the Legislature passed after the act incorporat-

ing the university, and creating, as the institution insisted,

an irrepealable contract, on the ground that the same was

repugnant to the prior State Constitution. Jurisdiction of

a writ of error by this court was strenuously resisted by the

Attorney-General of Illinois, because the record did not dis

close that the State court’s decision was based upon any

State law passed subsequently to the making of the sup-

posed contract, or that any such claim was made in that

court, but that the State court’s judgment was simply that

there was no contract, and was, hence, not reviewable here.

Mr. Justice Miller said, however, for this court, that

the writ. of error properly lay, because the State court was

giving effect to the subsequent statute, although upon inde-

pendent grounds, which was charged to impair the contract.

Your honors will observe that neither in the record of this

case, nor in the assignment of errors, is it charged that the

contract is impaired by legislative act, and this, as stated,

was one of the grounds of objection to jurisdiction.

Now, apply these rules to the case at bar. The Virginia

court decided that the funding bill of 1871 did not and could

not make an abiding contract. But it did not decide, and it

could not, that the said acts did not give authority that the

coupons should be received for taxes, until the Legislature

choose to withdraw the privilege. The act of 1872, if valid,

withdrew the privilege, and the Virginia court dismissed

16

McCullough’s petition, which could not have been done for

the reasons the Virginia court gives, except by treating the

act of 1872 as valid, which is thus given effect by the deci-

sion complained of.

A motion to dismiss was made and overruled in Wright

v. Vagle, 101 U.S. 793, for want of a Federal question,

which deserves mention.

Appellant was the assignee of certain exclusive ferry

rights, obtained in 1851 from an inferior court of Georgia.

In 1872 the county officers authorized the appellee to exer-

cise similar rights within the appellant’s territory, who

promptly applied for an injunction, setting forth his own

contract, and charging that the same had been impaired in

violation of the United States Constitution. The answer

denied the validity of complainant’s contract, and the court

so deciding dismissed the bill.

Your honors will note that here was no legislative act,

but a bare act of local inferior ofticers, whose validity was

sustained by the State court and by inference only, for, as

in McCallongh’s case, appellant’s petition was dismissed for

want of a contract right as claimed.

You stated (pp. 793-’4) that ordinarily a State court’s

construction of its statutes was conclusive on you, but de-

clared in the same breath: “One exception, however, exists

to this rule, and that is where the State court has been

called upon to interpret the contracts of States, though they

have been made in the forms of law, or by the instrumen-

tality of a State’s authorized functionaries, in conformity

with State legislation.”

“If the court,” your honors say (p. 794), “erred in con-

struing the statute, and in holding that there was no con-

tract... . in this way, it seems to us, a Federal question

is raised upon the record, which gives us jurisdiction.”

If in Wright’s case you reviewed a decision of the State

court that he had no contract, upon a record charging an

impairment thereof by subsequent non-legislative interfer-

ence, how much more will you entertain McCullough’s case,

17

where you yourselves have solemnly reiterated his possession

of a right which he now complains to you is being not im-

paired only, but annihilated, by judicial interference.

You have repeatedly declared (Louisville Gas Co. v. Citi-

zens’ Gas Co., 115 U.S. 697, and cases cited) it your duty,

upon your own judgment, and independently of the adjudi-

cation of the State court, to decide whether there exists a

contract within the protection of the United States. We

submit that you will the more readily make such inquiry

when requested by one, who, like McCullough, exhibits a

right which yourselves have repeatedly affirmed is a contract,

in the immunity whereof, you have said (vindexter v.

Greenhow, 114 U.S. 301), he is securely shielded by the

Constitution.

Indeed, it would seem, for the purposes of jurisdiction,

sufficient to charge an impairment of a contract’s obligation

by State law, and a justification by the State court of such

impairment by the application of some general rule of law.

It then becomes this court’s duty to inquire whether such

justification is well founded.

In Given v. Wright, 117 U. 8. 656, your honors so

expressed yourselves. Given resisted Wright’s attempted

collection of taxes on the ground that his property was ex-

empt therefrom by virtue of a contract with New Jersey in

1758. The State court declared, upon a general principle of

law, that the contract was long since abandoned, and the

lands subject, therefore, to taxation.

These cases to which we have invited your attention indi-

cate that it has ever been this court’s inclination to examine

for itself the question of contract or no contract when its

assistance has been invoked, and it can see for itself that

what is alleged to be a contract has, if such, been impaired,

whether by express legislative interference, by quasi legisla-

tive interference, by judical decision in the remotest degree

giving effect to subsequent legislation which would interfere,

though the pleadings do not formally recite the chapter and

line of the sacred instrument whose protection they in-

18

voke, nor specifically arraign the act of the State claimed to

impair the right. Our contention is that McCullough ten-

dered his coupons for verification only because it was recog-

nized that the collector would refuse them otherwise in obe-

dience to the act of 1872, section 399, Code of Virginia,

1887 edition ; that he was, therefore, obeying said act, as well

as the verification act; and that the Virginia court’s decision,

denying the validity of McCullough’s contract and dismiss-

ing his petition, affirmed the validity of said act of 1872 in

effect, and brings his case entirely, therefore, within the

reasoning of those we have cited, in one and all of which

this court overruled motions to dismiss for want of jurisdic-

tion.

Your honors entertained a writ of error in Hoadley v.

San Francisco, 124 U. 8. 639, where only in the brief of

counsel for Hoadley (page 645) was the Federal question

presented as a specification of error, and you cite Zhe

Bridge Proprietors v. The Hoboken Company, 1 Wall. 116,

145, and say, “ The existence of the contract or of the right

is part of the Federal question itself.”

Mr. Justice Gray has succinctly summarized the result of

the authorities, applying to cases of contracts the settled

roles that in order to give this court jurisdiction of a writ

of error to a State court a Federal question must have been

expressly or in effect decided by that court, in ew Orleans

Water- Works v. Louisiana Sugar Co., 125 U. S. 38. He

says, telling off the classes of cases seriatim, “So, when the

State court upholds the subsequent law, on the ground that

the contract did not confer the right claimed, this court may

inquire whether the supposed contract did give the right,

because, if it did, the subsequent law cannot be upheld.”

Will your honors be referred to Yazoo BR. &. Co. v.

Thomas, 132 U. 8. 174, strikingly wages McCullough’s

case in the pleadings ?

Appellant prayed for an injunction against Thomas and

others, sheriff and tax collectors, to restrain the collection

of certain taxes as illegal, asserting an exemption under a

19

prior State contract, and asserting that the same was pro-

tected under the contract clause of the United States Con-

stitution. Defendants demurred to the bill, and the same

was dismissed by the State court and affirmed by the Sa-

preme Court on the ground that the company had not such

contract as claimed. Your honors took jurisdiction, even

though the ground of the State court’s decision was other

than that the contract set up was unconstitutional.

The case of the Wilmington & Weldon R. R. Co. v. Als-

brook, 146 U.S. 293, is alsu in point. The company en-

joined the tax collector from collecting a tax upon part of

its property under the general revenue law of the State,

because its charter provided that all its property should be

free of tax, for which it claimed Federal protection. Observe

that there was no question as to the legality of the revenue

law. The State court declared that the charter exemption

did not cover the particular property alluded to, and upon

writ of error this court took jurisdiction, because the neces-

aary effect of the decision was to validate the revenue law,

when the contrary decision would necessarily have invali-

dated it so far as applicable to the company’s property.

Said the court: “The jurisdiction of this court is ques-

tioned, upon the ground that the decision of the Supreme

Court of North Carolina conceded the validity of the con-

tract of exemption contained in the act of 1834, but denied

that particular property was embraced by its terms, and

that, therefore, such decision did not involve Federal ques-

tion.

“Tn arriving at its conclusion, however, the State court

gave effect to the revenue law of 1891, and held that the

contract did not confer the right of -exemption from its

operation. If it did, its obligation was impaired by the sub-

sequent law, and as the inquiry whether it did or did not was

necessarily passed upon, we are of opinion that the writ of

error was properly allowed.” ( Wilmington & Weldon R. R.

Co. v. Alsbrook, 146 U. S. 293.)

Your decision in the case of Given v. Wright, 117 U.S.

20

655, is also pertinent and persuasive. It was instituted

by land-owners within the “Indian Reservation” of New

Jersey claiming exemption from taxation by the terms of

the original grant. The defence was that this privilege had

been, in effect, surrendered by acquiescence in taxation. Said

the court: “The question then will be whether the long ac-

quiescence of the land-owners under the imposition of taxes

raises a presumption that the exemption which once existed

has been surrendered. This question by itself would be a

mere question of State municipal law, and would not involve

any appeal to the Constitution or laws of the United States.

But where it is charged that the obligation of a contract has

been impaired by a State law, as in this case by the general

tax law of New Jersey as administered by the State authori-

ties, and the State courts justify such impairment by the

application of some general rule of law to the facts of the

case, it is our duty to inquire whether the justification is well

grounded. If it is not, the party is entitled to the benetit of

the constitutional protection. (Afurdock v. Memphis, 20

Wall. 590, 636: Prop. 6.)”

The case of Mobile & Ohio BR. Le. Co. v. Tennessee, 153

U.S. 486, is analogous to our own, and the principle for

which we are contending seems clearly deducible from that

decision. The case was thus: The railroad company was

chartered by Tennessee, and by its charter exempt from

taxes, which the State authorities attempted to collect, never-

theless, under a recent act taxing its property. The de-

fence was that the tax law was an impairment of the

obligation of the contract of the charter and, therefore,

void. Had the State court directly adjudicated this ques-

tion, there could have been no doubt of the right of the

compasy to appeal to the United States Court. But the

State court of Tennessee, like that of Virginia, sought to

avoid the Federal question by so construing the State Con-

stitution, in force betore the charter was granted, as to de-

termine that no contract had ever been made. Said Mr. Jus-

tice Jackson, in delivering the opinion of the court, p. 492:

21

“Tt is contended by counsel for defendants in error, that this

court is without jn isdiction to review the judgment of the

Supreme Court of Tennessee, because it was based or pro-

ceeded upon the ground that there was no contract in exist-

ence “‘ between the company and the State to be impaired,

and that the supposed contract was in violation of the State

Constitution of 1834, and hence not within the power of the

Legislature to make.” .... “It is well settled that the

decision of the State court holding that, as a matter of con-

struction, a particular charter or a charter provision does

not constitute a contract is not binding on this court. The

question of the existence or non-existence of a contract in

cases like the present is one which this court will determine

for itself, the established rule being that where the judgment

of the highest court of a State by its terms, or necessary

operation, gives effect to some provision of the State law

which is claimed by the unsnecessful party to impair the con-

tract set out and relied on, this court has jurisdiction to de-

termine the question whether such a contract exists as

claimed, and whether the State law complained of impairs

its obligation. A brief reference to some of the authorities

is sutticient to show this.” ... “The grounds upon which

the Supreme Court of the State held that the contract

claimed by the company under its charter was invalid in

no way affects the jurisdiction of this court. The legal ex-

istence of the contract itself, and its proper construction, is

necessarily involved in the question of alleged impairment.”

We beg that your honors will refer to all of what was then

said upon this subject. (Pp. 493-95.)

If the mere allegation, whether true or the reverse, that

the State law, validated by the decision complained of, im-

paired the contract relied on, suffices to give jurisdiction,

surely the decision of this court already given, that such

was the effect of the law thus validated, should not have

less effect. In the many decisions of this court upon these

Virginia coupons, you have always decided that the act of

March 7, 1872, forbidding the receipt of coupons for taxes,

22

is unconstitutional and void, because impairing the obliga-

tion of the coupon contract. But by the present decision it

is said that there is no such contract; if so, the law of 1872

is validated. As already said, this law has been incorpo-

rated into the Virginia Code of 1887, and is now section

399 thereof.

Now, in consideration of your decisions, and the former

decisions of the Virginia Court of Appeals (Antoni v.

Wright, 22 Grat. 833), that this law of 1872 does impair

the obligation of the contract in question, we think that the

necessity to jurisdiction of an allegation of that fact is

obviated. If so, our case falls easily within the reason

and rule of the Bridge Proprietors v. The Hoboken Co.,

1 Wall. 116; @ e, “ Where a statute of a State creates

a contract, and a subsequent statute is alleged to impair

the obligation of that contract, and the highest court of

the State construes the first statute in such a manner as

that the second statute does not impair it, whereby the

second statute remains valid under the Constitution of the

United States, the validity of the second statute is ‘drawn

in question, and the decision is in favor of its validity

within the meaning of the twenty-fifth section of the judici-

ary act, and this court may examine and reverse said de-

cree.”

“A party relying on this court for re-examination and

reversal,. . . . need not set forth specially the clause

of the Constitution on which he relies. If the pleadings

make a case which necessarily comes within the provisions

of the Constitution it is enough.”

In its chief feature this case is almost upon all fours with

our own, for in both it was the earlier statute alone which

was construed, and because upon that construction depended

the constitutionality of the later une the Supreme Court

took jurisdiction. it said, page 144: “ But there is a mis-

conception as to what was construed by the State court.

It is very obvious that the statute of 1860 (the latter) was

not construed. No doubt is entertained by this court, none

23

could have been by the State court, that the intent was to

give the defendants the right to build the bridge. The act

which really was the subject of construction was that of

1790, under which plaintiffs claim. For if that act and the

proceedings under it amount to a contract, and that con-

tract prohibited the kind of structure which the defendants

were about to erect under the act of 1860, then the latter

act must be void as impairing that contract. If, on the

other hand, the first act and the agreement under it was

not a contract, or, if being a contract, it did not prohibit

the erection of such a structure as that authorized by the

act of 1860, the latter act was valid because it did not

impair the obligation of a contract. It was, then, the act of

1790 which required construction, and not that of 1860, in

order to determine whether the latter was valid or invalid.”

Now, as matter of fact, the record shows plainly that

there was no express claim of any Federal right whatever

by either of the parties. One claimed a contract by virtue

of the act of 1790, the other a privilege or right under that

of 1860, and the highest court of the State dismissed the

plaintiff's petition; but this court decided notwithstanding

that the constitutionality of the act of 1860 was necessarily

“drawn in question” by the interpretation given by the

decision to the act of 1790.

Perhaps we can better demonstrate how our case falls

within these rules by considering it with special reference

to the remedy which McCullough was following, and the

denial thereof by the decision of the court complained of.

It dismissed his petition.

Now, let it be observed that the origin of this whole con-

tention was the effort of the tax collector to collect from

McCullough, in money, a tax imposed by the general reve-

nue laws of Virginia, notwithstanding his privilege, his im-

munity secured to him by the Constitution, the supreme law

of Virginia, as of the whole land, to pay the same with his

coupons. In this respect, therefore, the case is similar to

Wilmington & Weldon R. BR. Co. v. Alsbrook, and Mobile

24

& Ohio R. R. Co. v. Tennessee, supra, in both of which the

suit arose because of the efforts of the State’s officers to col-

lect taxes under the general revenue laws of the State, as

to which the companies claimed contract immunities. The

result of the decision in the case at bar was that the tax has

been collected in money, and McCullough is deprived of his

claimed immunity, and of his right and privilege to pay in

coupons.

He was pursuing a course with the object of having his

coupons received for his taxes. It was a remedy given to

all holders of these coupons in lien of their earlier remedy

by mandamus, and by this court, in Antoni v. Greenhow,

107 U. S 769, adjudged to be a constitutional and valid

remedy, and as such an inherent right of every coupon, a

part of its contract, which could not be denied the tax

payer. The defence interposed was that the funding bill,

under which the coupons were issued, was unconstitutional,

and that, therefore, the coupons were not “legal coupons

legally receivable for the taxes,” ete., which defence tie

Court of Appeals of Virginia sustained by so interpreting

the State Constitution as to make the said funding bill un-

constitutional—a mode of reasoning somewhat involved, be-

cause the funding bill could not be held unconstitutional un-

less it made a contract, which, according to this decision, it

could not do. The real ratio decidendi was, and must neces-

sarily have been, that the funding bill which made the coupon

did not make it an irrevocable contract, because it could not,

and the plaintiff's petition was dismissed, because the act of

March 7, 1872, Code of Virginia, § 399, forbade that con-

pons should be received for taxes thereafter, thus giving

validity to this subsequent act, which, if the coupon be a

contract, impairs or attempts to impair its obligation. If

the funding bill made a contract, then the act of 1872 must

be vuid as impairing that contract. If, on the other hand,

as the Virginia court said, the funding bill did not make a

contract, the later act was valid, because it did not impair a

contract, and thus the constitutionality of the act of 1872

25

was necessarily drawn in question by the interpretation given

by the decision to the funding bill or the Constitution of

the State.

And observe that there is nothing whatever in the State

Constitution which forbids that a coupon shall be receivable

for taxes, nor was any such construction given it by the

State court. The decision went no further in this respect

than to hold that a contract to that effect could not be

made, 7. ¢., an irrevocable agreement. But such an agree-

ment, revocable at will, might be made, and according to

the court’s decision such an agreement, revocable at will,

had been made, and McOullough’s petition was dismissed

becanse the law of 1872 was thus given effect as a revoca-

tion of the privilege. Such, we submit, is the true logic of the

decision,.and brings us strictly within the rules of Bridge

Proprietors v. Hoboken Co., 1 Wall. 116. “The grounds

upon which the Supreme Court of the State held that the

contract claimed ... wasinvalid . . . in no way affects the

jurisdivtion of this court.” (Afobile & Ohio R. R. Co. v.

Tennessee, 153 U. S. 486.)

But there are other Federal questions involved also. One

of them is presented by the failure of the Virginia court to

give full faith and credit to the repeated former decisions of

this court upon the coupon contract. Such a question, you

have said, is one arising under the Constitution and laws of

the United States, and falls within the jurisdiction of this

court. By your repeated decisions in cases of coupon con-

tracts before you, wherein Virginia or her officers were al-

ways parties, McCullough can now, and by his proceedings

he does, claim a privilege or immunity under the Constitu-

tion or laws of the United States; and that privilege or im-

munity is certainly denied him when the State court utterly

refused to give them any effect. Please observe that, as Mr.

Justice Matthews, in Crescent Live Stock Company v. Butch-

ers’ Union, 120 U. 8. 147, said: “It is within the jurisdic-

tion of this court to determine . . . whether such due effect

has been given by the Supreme Court” of the State to the

26

decisions of the Federal court drawn in question, meaning

that you readily inquire whether the proper effect has been

accorded your prior decrees; and the right to inquire imports

jurisdiction.

The spirit of the rule would, we apprehend, lead the court,

though no specific claim of privilege or immunity under your

prior decisions be set up, when you can perceive from the

scope of petitioner’s pleadings and the State court’s disposi-

tion of his case, especially when its reasons are disclosed in

an elaborate opinion, that your decisions are relied upon as

the bulwark upon which rests the plaintiff's claim, and that

the State court utterly misinterprets those decisions, giving

them, not “due effect,” but absolutely no effect, we submit,

would induce you, with alacrity, to respond to the peti-

tioner’s appeal, who vouches you your own oft-repeated

and impressive utterances, from the language employed

by Mr. Justice Field in Hartman v. Greenhow, 102 U. 8.

679, the first of these adjudications, in 1880: “A con-

tract was thus consummated between the State and the hold-

ers of . . . coupons, from the obligation of which she could

not, without their consent, release herself,” to that masterly

presentation of the entire subject by Mr. Justice Bradley,

in 1889, in McGahey v. Virginia, 135 U. 8. 668, in which

cause he declares that the act of 1871 was a valid act, and

that it constitutes a contract between the State and the

holders of the bonds issued under it, and that the holders

of the coupons of said bonds are entitled to use them in

payment of State taxes. “ This,” he says, page 668, “was

determined in all the cases on the subject”—in all—* that

have come before this court for adjudication.” “This ques-

tion,” adds the distinguished justice, impressively, ‘ there-

fore, may be regarded as foreclosed and no longer open for

consideration.”

McOullough has thus been denied rights under the United

States Constitution, Section 1, Article III., Section 1, Arti-

cle IV., and Section 2, Article VI.; and under Section 709,

Revised Statutes.

27

As already said, it is a general principle of law and of

pleading that one who asserts a claim in court thereby

claims and relies upon every legal right which is his in sup-

port thereof, whether under the general statute, the com-

mon law, or the law as interpreted and established by the

decisions of those courts which are the ultimate expounders

of the laws of this country. If so, then McOnllongh, when

he filed his petition below to procure the specific perform-

ance of his coupon contract, which he did subsequent to the

decisions of the Supreme Court to which we refer, thereby

asserted, and claimed, and relied on a right, privilege, or

immunity, and exercised an authority secured to him by

these decrees, and, therefore, by and under the Constitution

and laws of the United States.

These decrees and authority were that all holders of

coupons had an absolute contract right to pay their taxes

therewith, which included the right to resort to and avail

themselves of the identical legal procedure which McOul-

lough adopted to procure the execution of their contract,

and could not be lawfully deprived of either, and that both

contract and the right to the remedy were protected by the

Constitution and laws of the United States. (Antoni v.

Greenhow, 107 U. 8. 769, and McGahey v. Virginia, 135

U. S. 662, and cases cited.) The Virginia court, in its

opinion, which in Virginia is made part of the record, refers

to, and in terms interprets, these decisions adversely to the

plaintiff, and in terms makes its interpretation the ground

of dismissing his petition (and that, too, without requiring

restitution to him of his money and his coupons which he

had given to the collector, in order that he might avail him-

self of this remedy), and of its decision that he had no con-

tract and no remedy at all. We respectfully and earnestly

submit that, as the mere claiming a Federal right, even

though the claim be ignored by the State court, or be color-

able only (Smith v. Greenhow, 109 U. 8. 671), would

present a case within the jurisdiction of the Supreme Court

to review, the actual adjudication of such a right by the

28

State court should also suffice, whether expressly claimed or

not. For often might it occur, as in fact it did occur in the

case at bar, that the plaintiff would have no suspicion what-

ever that any Federal right of his would be denied him by

the Court of Appeals, and he would, therefore, have no

thought to specifically assert any claim to any of his Federal

rights, and yet the court might itself introduce such a ques-

tion into the record as the Virginia court did here, and de-

cide it adversely to him. So that, if the rule limits appeals

to cases in which the Federal right was actually claimed in

the trial court (it could not be claimed in the Court of Ap-

peals, that being a court for appeals only), the petitioner

would have no redress whatever, although a right of the

most sacred character, one secared to him by the Constita-

tion and laws of the United States, had been denied. And

observe, that if the Federal question be one concerning “an

authority exercised under the United States,” it is not re-

quired by the judiciary act that it be “specially claimed.”

In Dupasseur v. Lochereau, 21 Wall. 130, Mr. Justice

Bradley said for the court: “ Where a State court refuses

to give effect to the judgment of a court of the United

States rendered npon the point in dispute, ... . a ques-

tion is undoubtedly raised, which, under the act of 1867,

may be brought to this court for revision. The case would

be one in which a right or title is claimed ander an au-

thority exercised under the United States, and the decision

is against the right or title so set up. It would thus be a

case arising under the laws of the United States establishing

the Circuit Court and vesting it with jurisdiction, and hence

it would be within the judicial power of the United States,

as defined by the Constitution; and it is clearly within the

chart of appellate power given to this court over cases

arising in and decided by the State courts. The refusal by

the courts of one State to give effect to the decisions of the

courts of another State is an infringement of a different

article of the Constitution, to-wit, the first section of Article

IV., and the right to bring such a case before us by a writ

29

of error under the twenty-fifth section of the judiciary act,

or the act of 1867, is based on the refusal of the State court

to give validity and effect to the right claimed under that

article and section.

“in either case, therefore, whether the validity or due

effect of a judgment of a State court, or that of a judgment

of a United States court is disallowed by a State court, the

Constitution and laws furnish redress by a final appeal to

this court. We cannot hesitate, jerefore, as to our jurisdic-

tion to hear this case.”

The above was cited and approved by an unanimons court

in Embry v. Palmer, 107 U. 8. 3, wherein it was decided

that, “ where a State court refuses to give effect to a judg-

ment of the Supreme Conrt of the District of Columbia

rendered with jurisdiction of the case and the parties, such

decision of the State court is a denial of the title and right

claimed under an authority exercised under the United

States and is reviewable by this court. The question we

have to determine is whether the . . . Court of Connecticut

in the decree complained of gave to that judgment its due

effect.”

Again, in 1886, the same question was presented to the

court in Zhe Crescent City, &c. v. Butchers’ Union, &c., 120

U. S. 141, and with like result, and also by an unanimous

court, which decided “whether a State court has given due

effect to a decree or judgment of the court of the United

States is a question arising under the Constitution and

laws of the United States, and is within the jurisdiction of

the Federal courts. . .. The Supreme Court of Louisiana

denied to it not only the effect claimed, but any effect what-

ever.”

It is true that in these three cases the judgments of the

United States courts relied upon for jurisdiction were spe-

cially set up, and rights under them specially claimed. But

the effect thereof is only to make it clear that the Federal

right thereunder was actually denied by the State court, a

fact which sufficiently appears in our case from the opinion

30

of the Virginia court, which bases its decision upon its inter-

pretation of these judgments, and dismissed the plaintiff's

petition accordingly. The whole spirit and intent of the

jurisdictional statutes is to provide for an appeal to Federal

courts whenever Federal rights are denied, and it should

suffice, therefore, if it appear upon the record that such has

been done, no matter how the actual question was brought

into adjudication, for the Constitution and acts of Congress

extend this court’s jurisdiction to rights protected by the

Constitution, from whatever source they spring (ew

Orleans v. De Armas, 9 Peters, 224), and the rights of

the coupon holder under the contract to pay his taxes with

the coupon are guaranteed and secured to him by the Con-

stitution of the United States (Poindexter v. Greenhow, 114

U. 8. 270); and also, when the question raised is upon a con-

tract alleged to be protected by the Constitution of the

United States, it is the prerogative of this court to judge for

itself with regard to the making of such contract (McGahey

v. Virginia, 135 U. 8S. 667.)

In Factors Ins. Co. v. Murphy, 111 U. 8. 738, both parties

claimed rights growing out of Federal judgments, but neither

were specially claimed as Federal righte. The Supreme

Court took jurisdiction, deciding that both parties asserted

rights under the order and sale, and, therefore, rely upon

rights under Federal authority, and as the rights of the

plaintiff were denied by the State court, this court has

jurisdiction.

In the early case of Martin v. Hunter's Lessee, 1 Wheat.

304, this court took jurisdiction to review a decision of the

State court, which refused to give effect to the decree of

this court upon the first appeal therein, upon the ground

that there was drawn in question by such refusal the au-

thority exercised under the said decree, which was an

authority exercised under the United States. It will be

observed that the jurisdiction thus to review this second

decree did not in any manner depend upon the Federal

question involved in the original case, which wasa right or title

31

under a treaty. On the contrary, the second writ of error

bronght up the record of the last decree of the State court

only, which constituted, together with the mandate, the en-

tire record then before the Supreme Court. There was no

claim in this second record of a Federal right which was

denied, but the language of the decree of the State court

abundantly showed that a Federal right had been denied,

and the Supreme Court therefore took jurisdiction. The

construction and interpretation of a decree of the Supreme

Court necessarily involved the construction and interpreta-

tion of the Constitution and laws of the United States,

whence its powers were derived, and this was a Federal

question.

So, upon the same line of reasoning, this court took juris-

diction in Osborne v. The Bank, 9 Wheat. 817, because a

construction of the powers exercised by the bank required a

construction of its charter, and this necessitated an exami-

nation of the laws of the United States, which granted the

charter. Said the court (p. 827): “Every act of the bank

grows out of this law” (the act of Congress which incorpo-

rated the bank], “and is tested by it. To use the language

of the Constitution, every act of the bank arises out of this

law.”

Precisely the same principle applies in the many cases

involving rights claimed under decrees, sales, or appoint-

ments made in the bankrupt or other United States courts,

the theory of the jurisdiction being that a right, title, or

authority claimed under any such decrees necessarily in-

volves an examination of the powers of the courts in question,

and which in turn involves an examination of the Constita-

tion and laws of the United States from which the powers

of the courts are derived. If, as the court said in Osborne

v. Zhe Bank, “ Every act of the bank arises out of the law

of Congress creating it,” is it not likewise true that every

act of a court arises out of the law creating it?

“This court hath jurisdiction to review decisions of the

State courts denying rights claimed under a decree of the

32

United States bankrupt courts.” (WV. 0. 2. R. Co. v. De-

lamore, 114 U. 8. 501.)

Corporations chartered by Congress may remove suits

against them to the Circuit Courts of the United States, on

the ground that such suits arise under the laws of the United

States, because their authority, as that of the Supreine Court,

is exercised under the laws of the United States. (/acific

R. R. Co. v. Myers, 115 U. 8. 14.) Said the court therein:

“An examination of the acts of Congress shows that the

corporations now before us not only derive their existence,

but their powers, their functions, their duties, and a large

portion of their resources, from those acts, and by virtue

thereof sustaim important relations to the government of the

United States.”

The decision in McNulta v. Lochridge, 141 U. 8. 327,

further confirms these views of the grounds of jurisdiction

in the class of cases we are considering. Said the court:

“But while we think the plaintiff in error is not entitled to

immunity by virtue of the statute of 1887, we are author-

ized by Revised Statute, section 709, to review the final

judgments or decrees of a State court where ‘any title,

right, privilege, or immunity is claimed under. . . any .

authority exercised under the United States, and the aunt

sion is against the title, right, privilege, or immunity speci-

ally set up or claimed by either party under such . . . au-

thority,’ ete. Now, as McNulta was exercising an authority

as receiver under an order of a Federal comt, and claimed

immunity, as such receiver, from suit without the previous

leave of such court, he is entitled to such ruling, whether

his claim be founded upon tl.e statute, or upon principles of

general jurisprudence. We regard this as a legitimate de-

duction from the opinion of this court in Pacific 22. 2, Co.

v. Myers, 115 U. 8. 1,” which was, that to give effect to . de-

cree necessitated an examination of the laws which created

the court.

It is, perhaps, quite worth while to recall that the words

“immunity under the Constitution” and “anthority under”

33

the United States were words of enlargement of jurisdiction

in the act of 1867, added thereto because of the amendments

to the Constitution, and for the distinct purpose of bringing

within the jurisdiction of the United States courts all and

every Federal right enjoyed by every citizen of the United

States. It is also well to remind the court that in Poindex-

ter v. Greenhow, 114 U.S. 276, you have said that the rights

of the coupon-holder in and to his contract are guaranteed to

him by the Constitution of the United States, are secured

to him by that Constitution. “He is free from all further

disturbance, and is securely shielded by the Constitution in

his immunity.” And yon also said that, should he be as-

sailed, in violation of these rights, the grounds of the pre-

sent judgment would be his perfect defence. And as that

defence, made in any cause, though brought in a Strate

court, would present a question arising under the Constitu-

tion and laws of the United States, 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.”

The judgments of the Supreme Court must be final and

conclusive, because the Constitution invests that tribunal

with the power to decide, and gives no appeal from its de-

cisions, which are, therefore, the supreme law.

You have considered the contract over and over, after

hearing again and again arguments from the most eminent

members of your bar in support of every defence that their

ingenuity, learning, and research could devise, oftentimes

assisted by the reasoning of many of your associates, in dis-

sent. It cannot be presumed, therefore, that you have not

also, in your own deliberations, given due weight to the de-

fence now suggested by the Virginia Court, for you have

said that you have finally determined that the contract is

legal and can no longer be questioned. Surely, then, unless

your words are to be treated as without meaning, and the

decisions of this great tribunal, this supreme lawgiver, whose

decrees the State of Virginia hath, in ratifying the Consti-

tution of the United States, made the supreme law of the

34

State of Virginia, anything in her Constitution and laws to —

the contrary notwithstanding, and the supreme duty of all

her judges to enforce and obey, arc to be regarded as “ trifles

light as air,” the questions herein must be considered as for-

ever closed and at an end.

‘it On tHe Merits.

This case, like many others which have been exhaustively

argued and decided in this court during the last twenty

years, arises upon certain tax-receivable coupons issued by

the State of Virginia, and is an unexpected continuation of

a controversy nade by the State in the effort to avoid the

obligation of the contract thus made. It does not present

any features or defence which have not already been passed

upon by this court, and which it has said more than once

have been finally settled, and are no longer open to contro-

versy. The sole question is, is or is not the coupon a con-

tract. You have over and over again decided that it is, and

so, also, has the Court of Appeals of Virginia until now,

when, for the first time, it decrees that it is not. The last

determination of this matter in this court was in 1890, when

there was argued and decided a group of eight cases, known

as the Virginia coupon cases, and which are reported in

135 U.S. 662 under the title of McGahey v. The State of

Virginia. In these Mr. Justice Bradley delivered the unani-

mous decision of the court, and as he then took occasion in

his own matchless manner to present a connected resumé of

the history, the legislation, the litigation, and the decision

of this long-protracted contention, which is, of course, a far

better argument in support of your decisions than we can

ever expect to make, we are content to refer the court

thereto, without further effort on our part to convince you

that your decisions were right. Suffice it to say, that after

all this resumé and re-examination the conclusion arrived at

was “that the provisions of the act of 1871 constitute a con-

tract between the State . . . and the holders of the coupons

issued . . . in pursuance of said statute.”

35

And let it not be forgotten in this connection, that while

there was not unanimity upon other points in some of the

previous decisions, there had never, since the first case in

the Virginia court, been any difference of opinion what-

ever as to validity of the coupon contract. In McGahey’s

Case, 135 U. 8. 685, the court said that there “may be

exceptional cases of taxes, debts, dues, and demands due

the State, which cannot be brought within the operation

of the rights secured to the holders of the . . . coupons

of the acts of 1871 and 1879. When euch cases occur,

they will have to be disposed of according to their own

circumstances and conditions.” And proceeding to con-

sider two of the allied cases then being heard all to-

gether—Huckles’ and Vashon’s—the court decided that

these were of the exceptional cases, and that the license tax

and the school tax involved in them were not payable with

coupons. And then, doubtless, anticipating the conclusion

which the Virginia court now draws, expressly negatives it,

saying that the principles involved in the case of Vashon do

not affect the capacity of the coupon to pay the general tax

for carrying on the government.

The Virginia court decrees that in view of “the above

decision, we declare the whole coupon contract absolutely

illegal and void,” and yet “the above decisions,” as we have

shown, expressly declare that, except as to the school and

license taxes, it is a valid contract, and not at all af-

fected by the withdrawal from its scope of the excepted

taxes named. Its effort to apply the principles of the

laws of contract is, if possible, more erroneous still, and the

cases cited to sustain the conclusion are, save one, utterly

inapplicable, as the excepted one abundantly proves. The

contract is indivisible, says the Virginia court, and illegal in

part, and is, therefore, illegal altogether; and yet in the

same breath almost, it declares that it is divisible, and the

part thereof which promises the payment of money is not

affected by the vicious part —— to receive coupons in

payment of taxes.

36

In its confusion the Virginia court confounds the consider-

ation given for a promise with the promise itself. It says that

the consideration for the promise being illegal, the promise

is void; but this, also, is the converse of what you have de-

cided (p. 716), for in the same, McGahey v. Virginia, in

Vashon’s Case, you distinctly said that a good and valid con-

sideration had been given for the coupon promise, and that

the Virginia court erred in holding otherwise, as well as in

deciding, what yousaid it did in that case, 7. ¢., that the

funding bills were unconstitutional. Thus, in effect, you

anticipated and decided in advance the very question now

before you. '

Being yet confused, it forgets the well-known distinction

which the law makes between contracts mala in se and those

mala prohibita, and which Mr. Justice Story thus explains in

United States v. Bradley, 10 Peters, 343: “ That bonds and

other deeds may, in many cases, be good in part and void for

the residue when the residue is founded on illegality, but not

malum in se, isa doctrine well founded in the common law,

and has been recognized from a very early period. The

doctrine has been maintained, and is settled law at the

present day in all cases where the different covenants and

conditions are severable and independent of each other, and

do not import malum in se. There is no solid distinction

in cases of this sort between bonds and other deeds contain-

ing conditions, covenants, or grants not malum in se, but

illegal at the common Jaw, and those containing conditions,

covenants, or grants illegal by express prohibition of statute.

In each case the bonds or other deeds are void as to such

conditions, covenants, or grants which are illegal, and are

good as to all the others which are legal and are unex-

ceptional in their purport. The only exception is where

the statute has not contined ite prohibitions to the illegal

conditions, covenants, or grants, but has expressly or by

necessary implication avoided the whole instrument to all

intents and purposes.”

In Gelpecke v. Dubuque, 1 Wall. 222, Justice Swayne.

37

said for the court, speaking of the objections made: “They

relate to certain provisions of the contract claimed to be

invalid. COonceding them to be so, they are clearly separa-

ble and severable from the other parts which are relied

upon. The rule in such cases, where there is no imputation

of malum in se, is that the bad parts do not affect the good.

The valid may be enforced. That part of the complaint

only which relates to the stipulations claimed to be valid

will be considered.”

The coupon contract made by the State is the act of the

sovereign, and if part be found inapplicable to certain taxes,

the necessary conclusion must be that such was the sove-

reign’s intention as to such part, but not as to the resi-

due. If otherwise, and the contract be now construed to

be wholly void by any principle of common law, as above

indicated, this would be to hold the common law superior to

the statute, whereas the true construction should be that any

such principle of common law is impliedly negatived by

the statute which made the voupon. The coupon statute

may be held void as to the school tax because of the consti-

tutional provision, which is the supreme law, but the common

law is not supreme, and what a statute says may be done

cannot be defeated by any principle of common law.

There is no question here of any illegality of the consid-

eration given for the promise contained in the coupon, for

that consideration was simply the surrender by the bond-

holders of their bonds to the State, who gave them, in lien,

others of lesser amount and interest. But the illegality

as charged is found in the contract of the coupon alone, the

promise. The citations by the Attorney-General showing the

effect upon the promise of a consideration void or unlawful

in part have, therefore, no application at all to the matter

under consideration, and those which he names on pages 25

and 26 of his brief abundantly demonstrate the error of the

decision he seeks to defend. They say, “when, however, for

a legal consideration a party undertakes to do one or more

acts, and some of them are unlawful, the contract is good for

38

so much as is lawful, and void for the residue.’ Whenever

the unlawful part of the contract can be separated from the

rest it will be rejected and the remainder established.” The

remainder of the quotation refers to the effect upon the pro-

mise of an unlawful consideration, but there is no question

of the consideration here save in the misapprehension of the

Virginia court.

In Addison on Contracts, Vol. I., page 1169, note 1, the

following is stated as the law: “The general doctrine is that,

if the promise and the consideration are each entire, and

the consideration is even in part illegal, the contract is void.

But when the contract consists of two or more distinct parts

which are readily separable, and not in any material sense

dependent on each other, one part being valid and the other

void, the rule is to enforce that part which is valid. In like

manner, a lawful promise is not necessarily impaired by be-

ing joined in a contract with an unlawful one, provided the

two can be separated ; in other words, a person who, upon a

good and valid consideration, promises to do two things, one

legal and the other illegal, will be bound to the perform-

ance of the former, unless the two are so intermingled that

they cannot be separated.”

Your decision in MeGahey v. Virginia, supra, that school

and license taxes may be withdrawn from its operation with-

ont impairing its effect upon other taxes, necessarily deter-

mines that they can be so separated, which, also, so abun-

dantly appears from the terms of the promise itself ; it is to

be ‘received, it says, in payment of “all taxes,” etc., mani-

festly meaning “any”; and, besides, the courts have time

and again decided that it may be separately executed as to

dues, or any of the various kinds of debts included in the

comprehensive language employed—fines, license taxes, coste

of suit, and any monetary demand whatever which the State

may make. And, in fact, the statute of 1884, construed in

Vashon’s Case, supra, has effectively and easily so arranged,

and has separated the promise, as to the school tax, from the

residue, without embarrassment or difficulty.

39

The Attorney-General, on the 8th and 9th pages of his

brief, maintains that the repeal by Virginia, on February 21,

1894, of the laws ander which McCullough instituted his suit

in the Circuit Court of Norfolk necessarily puts an end to

this proceeding, and that no further steps can be taken

therein. But such was not the opinion of the Court of Ap-

peals of Virginia, for the decree of which we complain was

entered in favor of Virginia nearly thirty days thereafter,

March 15, 1894. The cases cited by our learned opponent

in this respect by no means bear him out; for while the re-

pealed acts did give jurisdiction to the lower court, the ap-

pellate tribunals were in no sense dependent upon them for

their jurisdiction, and therefore their repeal could not affect

cases pending at their bar. McCullough’s case, it is true, had

been in the Circuit Court by reason of the permission given

by the State; but it was in the Court of Appeals by the

act of the State itself, and not at all by virtue of any of

the repealed statutes. The State, having thus voluntarily

become the actor in that tribunal, is subject to all the rules

of process and pleading applicable to any other litigant.

We do not for one moment deny that the general rule is

that the repeal of statutes giving jurisdiction terminate all

proceedings pending thereunder; but there is a well-known

exception of no less weight and authority excluding all

cases where rights have vested, and this embraces McCul-

lough’s case, it having gone to judgment two years before the

act of repeal; and, besides, he had given valuable consid-

eration for the. privilege he was exercising of verifying his

coupons, having fully complied with the conditions imposed,

and given to the collector both money and coupons.

Said the court in Steamship Co. v. Joliffe, 2 Wall. 457:

“When a right has arisen upon a contract authorized by

statute . . . the repeal of the statute does not affect it

or an action for its enforcement. It has become a vested

right, and stands independently of the statute.” -

“Vested rights acquired by a creditor under and by vir-

tue of a statute of a State granting new remedies, or enlarg-

ing those which existed when the debt was contracted, are

40

beyond the reach of the Legislature, and the repeal of the

statute will not affect them.” (Memphis v. United States,

97 U.S. 293.) in

- It will be observed that this repealing act was passed

February 21, 1894. Its language is given at the foot of

page 9 of the. Attorney-General’s brief. The decree com-

plained of here was entered March 15, 1894 (Record, p. 10),

and validity is thereby given to the repealing act, which

takes away from holders of these coupons the sole remedy

they have to enforce their contract. But this you have de-

cided, in Antoni v. Greenhow, supra, cannot be done.

Therefore the claim of the Attorney-General that you should

give effect to the repealing act clearly raises another Federal

question for your jurisdiction, you being asked to give ef-

fect to an act clearly of the class which you have hitherto

determined is obnoxious to the Constitution and laws of

the United States.

It is quite true, as the Attorney-General says, that the

effect he claims for the repealing act has been given it by

the Court of Appeals of Virginia in Maury’s case, decided

in December, 1895 (23 Southeastern Rep. 757). But that

was a case still pending below when the repeal was passed.

If the law be as the Attorney-General contends, it was also

so when the McCullough decision was rendered; and that it

was not then thus applied is another of the many evidences

found throughout this record of the attempt of the Virginia

court to evade the decision of the Supreme Court that the

contract is valid and protected by the Constitution, and de-

stroy it utterly by a decision which this court would not

have jurisdiction to review. If McCullough’s petition had

been dismissed because of this repeal, which deprived him

of all remedy under his contract, there could be no question

of your right to review.

It seems to us impossible for this court, after the many

times it has held that these coupons are binding contracts,

to hold now that they are void, and therefore we do not

deem it necessary to discuss these matters further.

Very respectfully

F Bfog

~ RAAAY

a

A. A. McCULLOUGH,

vs. -

THE COMMONWEALTH OF VIRGINIA.

Reply Brief of

R. L. Maury & M. F. Maury, ©

For the Plaintiff

SUPREME GOURT OF THE UNITED STATES.

OCTOBER TERM. 1897.

No. 19.

A. A. McCULLOUGH, Plaintiff in Error,

vs.

THE COMMONWEALTH OF VIRGINIA,

Defendant in Error.

Reply of R. L. Maury and M. F. Maury, Counsel for

Plaintiff in Error, to the Supplemental Brief of

R. Taytor Scort, Esq., Attorney-General of Virginia,

and further argument as required by the court.

Before proceeding to the further argument of this case

which the court has directed, we will first make brief reply

to the three contentions of the supplemental brief of our

lamented brother, the late Attorney-General of Virginia.

That distinguished and faithful officer, whose sudden

death every Virginian deeply deplores, has insisted that

this case should be dismissed because the court has not

jurisdiction to review the State court herein, no Federal

question having been decided, inasmuch as the State

court’s interpretation of its own statute must be followed

by this court; because, further, that the decision of the

State court is without error, and consequently all that you

have hitherto decided concerning the legality of these Vir-

ginia coupons is wrong; and lastly, because this is, what

he calls, a moot case, inasmuch as the statute authorizing

the proceeding from which it has grown has been repealed,

and the privilege of suing the State withdrawn.

2

But for the courtesy due, and which we willingly accord

to the memory of our eminent brother, we would not deem

it necessary now to make direct reply to these contentions,

because we have anticipated and answered them already

in our previous brief. We content ourselves, therefore,

with saying, at this moment, that the rule relied upon

in support of the first contention has never been applied

to a case wherein the Supreme Court had already con-

strued the statute in question. By comity alone it is that

the Supreme Court will adopt the State court’s construction

of its own statute; but this can only be when the Supreme

Court has not already made its own construction, in which

event whatever of comity there be requires that the State

court should adhere to what it has heretofore decided, and

follow the decision of the Supreme Court, which by comity

hath made the earlier State decision its own. This feature

in the case at bar, that the Supreme Court had already it-

self decided the question which the State court decided

(differently), differentiates it in toto from every one of those

cited by the Attorney-General in support of the contention.

The latest (Bacon v. Texas, 163 U.S. 208) which he cites

clearly has no application, there being no judgment of the

Supreme Court in question as here, and no unconstitutional

statute of the State given effect as the de¢ision now ap-

pealed from does. Indeed, it is expressly stated in Bacon

v. Texas, as reason for the conclusion reached, that there

was no such statute validated by the deciston appealed

from. The presence or absence of a Federal judgment or of

an impairing statute has, in a multitude of cases, many of

which are set down upon our briefs, been made the ground

of this court’s conclusions.

The second contention is that upon the merits the State

court’s decision is right, and therefore that all that has

hitherto been decided in this court and in the Court of

Appeals of Virginia concerning the validity of these cou-

pons is totally wrong. After the years of labor and in-

vestigation which have been given to this subject by the

most astute and intelligent members of this bench and of

3

the Supreme bénch of Virginia, and of their bars, we feel

confident that such a contention cannot prevail, and that

we need not answer further than to quote, as we have al-

ready done, your last determination (McGahey v. Virginia,

135 U. S. 662), that the provisions of the Funding Bills of

Virginia do constitute a valid and binding contract between

the State and the holders of the coupons issued in pursu-

ance thereof, and that this is finally settled and no longer

open to controversy.

The third contention is also without force. This isin no

sense a “moot case,” for the writ of error acts not upon the

parties, but only upon the record, and no affirmative relief

is asked against the defendant. When the State of Vir-

ginia appealed the case to her Court of Appeals, it became

her own case, she was‘then the actor, and the suit was no

longer one against the State within the meaning of the pro-

hibition of the Constitution of the United States. (Cohens

v. Virginia, 6 Wheat. 610.) The repeal of the Act under

which this proceeding was commenced in the Norfolk court

by McCullough, which the Attorney-General relies upon to

defeat this appeal, was made before the appeal of the State

had been decided by the Virginia: court, who, according to

the present contention, ought to have dismissed the State’s

appeal instead of retaining it, as was done, and deciding

it in her favor. But we have already shown that such a

repealing statute does not affect pending causes, where

rights have already vested. (See the last two pages of our

previous brief.)

Before commencing the further argument which the

court has called for, we beg to commend to your consid-

eration that incomparable opinion delivered by the la-

mented Justice Bradley for the whole court, to which we

have already referred, in McGahey v. Virginia, 135 U. 8.

662, which in the clearest manner possible gives a full and

complete history of this prolonged and complicated conten-

tion concerning the State’s obligation to her creditors. It

is a full and exhaustive review and analysis of all the many

decisions in these cases, and presents a summary of the

4

propositions established, which, said that learned Justice,

can no longer be questioned or denied, the first of which

is, that the provision of the “Act of 1871 constituted a

contract with the State of Virginia and the lawful holders

of the bonds and coupons issued under and in pursuance

of said statute.” And great weight is added to the justice

and force of the conclusion then reached, when it is remem-

bered that the consideration exacted from her creditors by

the State, and given, which she still retains and enjoys,

for the tax-receivable feature of their coupons was the

surrender to her upon request of what, if not surrendered,

would, principal and interest, now exceed seventy-five mil-

lions of dollars, in exchange for which they accepted less

than twenty-five millions, bearing interest at a lesser rate.

The case hath its origin by reason of the persistent ef-

forts of the government in Virginia to escape performance

of her promises, for which she received and is enjoying

this large consideration, and to devise a means of avoiding

the obligation of this contract made with her creditors in

return for their release, at her request, of the greater part

of what was due them. Although time and again this

court, and her own courts too, have decided that the con-

tract is valid and binding, both in law and morals, and that

the repeated legislation to nullify and destroy it is uncon-

stitutional, null and void, these unworthy efforts, to which

nearly all the creditors have been compelled to submit,

still continue against the few—her own citizens—who can-

not do so.

In 1871 the interest upon the State’s bonds being largely

in arrear, and there being no prospect of funds to meet the

annually accruing instalments, a Funding Bill was passed

by the Legislature, appealing to creditors to surrender their

evidences of debt, to release one-third (for which they

might look to West Virginia), and to accept in lieu a new

bond (for two-thirds), whose coupons should be taken in

payment for all taxes due the State. The request was

promptly granted, and in a short time the greater portion

of the debt, some twenty-seven millions of bonds and in-

5

terest, was surrendered, and eighteen millions of the new

bonds, with the coupon, as promised, accepted in exchange,

and the entire amount would have been so funded but that

the bill was repealed.

_ But the revenues were still insufficient to meet even the

amount of interest thus reduced. Parts of the maturing

coupons were paid during the first year, after which pay-

ments ceased altogether, and have never been renewed.

In order to realize something of their accruing interest,

creditors availed themselves of the tax-receivable feature

of their coupons, and sold them to Virginia tax-payers,

who used them for the payment of their taxes. Such use

soon became so general that the larger part of the State’s

revenues were thus paid, whereupon an Act was passed

(March 7, 1872) that they should be no longer so received.

Upon this Act the celebrated case of Antoni v. Wright,

22 Grat. 833, arose, wherein the Court of Appeals of Vir-

ginia decided that the law under which the coupons were

issued constituted a contract which the State could not

rescind. Except for several unsuccessful efforts to exclude

from its operation some special kinds of taxes or dues,

which resulted in unvarying affirmation of Antoni v.

Wright, the decision was accepted as a finality, and for

twelve years or more these coupons, aggregating annually

very large amounts, were taken freely from all who offered

them; a regular custom was established throughout the

State for tax-payers to buy them from bondholders at a

small discount, who thus in effect and indirectly received

their interest each year, and laws were passed recognizing

and regulating their sale, and providing for their registra-

tion and safe-keeping after reception.

And not only so, but in 1879 creditors were again asked

to remit a portion of their dues and again take new bonds

with coupons, ta.r-receivable as before, but at only half the

interest rate, which was done, and the exchange largely

made.

Thus there are two issues of these tax coupons, both of

which were tendered in the case at bar, and both of which

6

the Supreme Court has decided are valid, binding con-

tracts, whose holders are shielded and protected in their

rights thereunder by the Constitution of the United States.

Firmly founded as are the first, the latter are still more so,

issued, as they were, so long after all these decisions were

made and recegnized and observed, it being a familiar rule

of construction recognized by the Virginia courts that

where a statute has been construed by the courts, and

subsequently re-enacted by the Legislature, it is an affirm-

ance and acceptance of the court’s decision. (Anable’s

Case, 24 Grat. 563; Mangus v. McClelland, 93 Va. 789.)

There can be no hesitation in saying that the rights of

their owners are to be determined in this court according

to the law as it was judicially construed to be when these

bonds and coupons were delivered to them, or put upon

the market as commercial paper. (Burgess vy. Seliginan,

107 U.S. 20.)

In 1884 a law in the same words as that of 1872, which

forbade the acceptance of these coupons for taxes, and

which Antoni v. Wright decided was unconstitutional, was

passed again, forbidding the reception of aught but money

in payment of taxes, and in 1887 it was included in the

Virginia Code adopted that year. (See. 399.)

When the coupon contract was made, a remedy for its

enforcement was by writ of mandamus from the Supreme

Court of Appeals direct. In April, 1882, this remedy was

withdrawn from holders of coupons. (See Code of Vir-

ginia, See. 3086.) .

On January 14, 1882, another remedy to secure perform-

ance of this contract in effect was provided by the Legisla-

ture. It is (Secs. 406 and 407, Code of Virginia) given in

full on page 1 of this Record, and generally called the

“Verification Act.” The mandamus repeal left this the

sole remedy available to coupon holders, and it so re-

mained until repealed in February, 1894. If its repeal be

valid, then the coupon holder is left now without any

remedy at all for the enforcement of his contract, although

when the contract was made there was an easy, complete,

7

and efficacious one by mandamus. The mandamus repeal

and the Verification Act were construed by this court in

Antoni v. Greenhow, 107 U.S. p. 770, wherein it was de-

cided that there could bé no longer any question as to the

validity of the coupon contract; that any act of the State

prohibiting the receipt of these coupons for taxes is void,

and that the remedies in force when the contract is made

are parts of it, and cannot be lawfully taken away unless

others of equal efficacy remain. Manifestly, then, the Act

repealing the Verification Act is invalid, for that was the

only remedy then left to coupon holders, and none was

given in its place.

There was also, and all the time has been in force, the

general revenue laws of the State, imposing taxes and requir-

ing collectors to levy for them if not promptly paid.

. Such were the laws and decisions when the plaintiff in

error tendered his coupons (of both issues) in payment of

his taxes (except that the Verification Act had not then been

repealed), which were refused by the collector by authority

of the Act above recited, which forbade the reception of

aught but money in payment of taxes, and thereupon and

solely because of this refusal, and of these acts, which he

relied upon as his authority, this case arose. Plainly but

for them he would have taken the coupons when offered,

as this court and the Virginia courts had unvaryingly decided

it was his duty to do so, and as had been the uniform

custom for years before these acts were passed.

But he refused them and required the tax to be paid in

money, being commanded otherwise to levy, and the cou-

pons were delivered to the court for judicial determination

whether they were genuine and legally receivable for taxes.

This inquiry was manifestly one of fact only, for it was to

be determined by a jury, /. ¢., whether or not the coupon

was genuine. There was no question of their legal receiva-

bility for taxés, if genuine; the statute under which they

were being examined by the jury distinctly recognizes them

as receivable, if genuine. If there were question of this, it

being of legal import was not matter for a jury, and, there-

8

fore, not to be heard in this case, being a statutory jury

proceeding, and, therefore, confined to the issues proper

for a jury to determine. The words “legally receivable

for taxes,” where they occur in the Act, are but words of

_ description of the coupon ; there being many others of Vir-

ginia issue which do not bear these words, and which,

therefore, were not to be included in the provisions of this

“Verification Act.” (See Stuart v. Virginia, 117 U.S. 612.)

Thus the case at bar commenced, as the Verification Act

provides; the trial court found that the coupons were

genuine and legally receivable for taxes ; the State appealed,

and the Court of Appeals, without question that they were

genuine, decided that they were invalid altogether in re-

spect of their tax-paying power; whereupon the plaintiff

in error asked and obtained this writ.

The question now is, are the coupons tax-receivable ?

The trial court, following the Supreme Court, said “yes.”

The Court of Appeals, “no.”

With the reason that the latter gave for its decision the

Supreme Court has no concern; it regards the actual de-

termination only, to-wit, that these coupons are not tax-

receivable. P

It is nowhere pretended that they were not issued by the

State, and under authority of the several funding bills, and

are not promised to be received for taxes. Nor is it any-

where alleged, directly or indirectly, that there is aught

unlawful in such a promise if a mere promise or privilege

revocable, if but a spontaneous concession on the part of

the Legislature, not constituting a contract, and which may

be revoked at will. The same words are found upon the

treasury notes of the United States. It therefore follows

that if the coupons be not now receivable for taxes, which

is the conclusion and decision of the Virginia court, such

can only be because that privilege has been lawfully with-

drawn, or, in other words, because the law forbidding their

reception is valid. But you have decided that this law is

invalid. Stripped of all subterfuge and deviation, this is

the true logic of this startling decision. And the same

9

conclusion follows from the major premise of the Virginia

court. It decided that the coupon is not a contract—is

altogether void; therefore the subsequent Act forbidding

its reception for taxes impairs no contract, and so is valid.

But the Supreme Court decided that the coupon is a con-

tract, and that the subsequent Act is invalid.

Whether the decision be logically considered or taken

illogically, upon the Virginia court’s own statement, if

allowed to stand, it inevitably and necessarily validates

the statutes revocatory just described. In like manner and

for the same reasons it also validates every one of the

many statutes attacking the coupon contract, all of which

are valid if it be no contract, and invalid otherwise. It jus-

tifies the act of the collector, under the authority of the

State, refusing to accept the coupons offered him, although

the Supreme Court has decided that it was his duty so to

take them; and basing its decision upon the full faith,

credit and effect which the Constitution requires for the

proceedings of its Supreme Court, it has regard to but a

part of the decision, and gives that part effect to destroy

that contract which the whole decision determined was

legal and binding, and could not be rescinded, altered or

impaired.

And besides, these many assaults upon the rights of

coupon holders have been so repeatedly and for so long

a period by all the courts, both State and Federal, de-

cided to be obnoxious to the Constitution of the United

States, that a rule of property has been thus established

which none but this court has power to overturn.

In arriving at its conclusion, which thus validates these

laws which you have declared are unconstitutional, the

Virginia court construes, and says it gives effect to, the

last one of your decisions concerning these coupons;

and yet it is now said you have not jurisdiction to hear

the cause which thus pretends to give effect to your de-

cree. It is impossible to credit that the machinery of

the government is thus defective, for wherever there are

rights of the citizen of the United States, there must

10

go the judicial power of the United States to protect them

from invasion or destruction (9 Wheaton, 91); and it can-

not be that the framers of the Constitution failed to pro-

vide that such a decision should be reviewed by the Su-

preme Court. If otherwise, consequences of such mo-

mentous import. would result, that the mere suggestion by

counsel so distinguished, however groundless we may deem

it, imposes upon us a task of careful consideration and la-

borious demonstration which we would willingly avoid if

we might, and but for which we would be content simply to

reply that it is incredible that the Constitution and laws of

the United States confer rights upon its citizens, and yet fail

to provide for their protection and enforcement by its courts ;

that there is no remedy when these rights are invaded; or

that the relations between the Supreme Court and the

State courts are so ill-defined and imperfect that the latter

may disregard or pervert at will the decisions and deter-

minations of the law by the former, under the guise of

giving them effect, with entire immunity from its revision.

If this were so, our highest court would be supreme to

the State courts in name only, although created by the

States themsélves to be their supreme and final arbiter for

themselves and their citizens of every right consequent

upon their union; to insure which they have made it the

law of the land, a special provision of the Constitution,

that their courts and judges should give its judgments full

faith and credit, and yield to them that absolute obedience

and respect due to the supreme law of the land.

It may be well that the powers vested by the Constitu-

tion are not always perfectly described; it was impossible

that they should be.

A constitution establishing a frame of government, de-

elaring fundamental principles, and creating a national

sovereignty intended to endure for ages and to be adapted

to the various crises of human affairs, is not to be inter-

preted with the strictness of a private contract. The Con-

stitution of the United States marks the outlines of powers

granted; but it does not undertake, with the precision of a

11

code of laws, to specify all the means by which they may

be carried into execution. (Legal-tender case, 110 U.S.

439.)

It is made the supreme law of the United States that the

judgments and decrees of this supreme and final arbiter

are to have given them full faith and credit as such, as

final and conclusive determinations of the matters they

have determined and with all the full force and effect that

they have in the court which rendered them, and therefore

those who interpret them and fail to accept them as being

final and conclusive violate the supreme law of the land,

and, the decision being adverse, a case arises under the

Constitution and laws of the United States of which the

Supreme Court has jurisdiction.

The Constitution which the States have made for the

guidance and authority of the general government they

created—giving up certain of their rights to government

for the better security of others—and which was chiefly

the work of three great statesmen, of whom two were Vir-

ginians, subordinates their own highest courts in matters

Federal to the Supreme Court, and imparts to it not only

superiority to them in such matters, but also superiority to

the other members of the governmental trinity, whose ac-

tions also it is empowered to review, overrule, interpret and

expound.

Its authors intended that the judicial powers vested

should be co-extensive with every right or claim which in

any manner should emanate from, or grow out of, the pro

visions of that instrument.

Its language, therefore, in respect of the scope of the

judiciary powers should be taken in its most comprehen-

sive sense, and so as to embrace any and every Federal

right, every right of a citizen of the United States, which

can be traced to the Constitution as its source, even though

it may not appear to be included in any of the special

classes named. Every authority exercised, no matter by

which department of the government, must of necessity

have its origin, directly or indirectly, in the Constitution,

12

which is its primal basis, and therefore any question con-

cerning such authority must be a “ Federal question.”

The word “constitution” is the strongest term in the

language to designate the fundamental law of a govern-

ment. Its law is that there shall be but one Supreme

Court, whose jyrisdiction, original and appellate, is made as

broad as the judicial power itself, and whose supremacy

makes it the final and conclusive authority in all cases and

controversies that it decides. There is no higher authority

to review its decisions, and therefore the law of the Constitu-

tion, and the agreement of the States which made it, is that

the Supreme Court’s judgments are absolute and final law

to all, that they are final and may not be questioned by

any; and being thus by reason of the provisions of the

Constitution, ’tis law that they should be so—law of the

Constitution and of the United States, and therefore, when

decisions are made upon a construction or interpretation

of them adverse to those relying upon them, a Federal

question is made, of which the Supreme Court has jurisdic-

tion.

“The judicial power shall extend to all cases in law and

equity arising under” this Constitution, the laws of the

United States, or treaties made, or which shall be made.

This classification was evidently adopted for the purpose

of emphasis, and not to enlarge or vary the scope of the

judicial power from what it would be if the word “ Consti-

tution” alone were used, which could not be, for the Con-

stitution being the source of all law and power, all cases

which arise under the laws and treaties of the United

States fall within the larger classification of those aris-

ing under the Constitution, just as all “arising under the

treaties” are included in those arising “under the laws.”

There can be no doubt of what is referred to by the words

“Constitution” and “treaties,” but perhaps the expression

“laws of the United States” is not equally clear. If it

only means ‘‘acts of Congress” tis clear enough. But

manifestly it cannot be so limited, as well because at the

time the Constitution was adopted there were no acts of

13

Congress, as because the Coxstitution declared for a much

larger meaning in defining what shall be “the law of the

land.” It is far more extensive than the statutes only; it

means als» the Constitution and all that it prescribes or au-

thorizes, whether expressly or by absolutely necessary im-

plication.

We maintain that this word “law,” thus used, is by no

means intended to be understood as synonymous with

“‘acts of Congress,” but is used in its larger and broader

signification, which Blackstone gives—that is, “a rule of

civil conduct prescribed by the supreme power,” etc.—and,

therefore, includes not only “acts of Congress,’ but acts

of the other grand divisions of the government as well, as,

for example, the proclamations and pardons of the Presi-

dent; his orders as Commander-in-chief; his war measures,

as the emancipation; the declaration of peace; and like-

wise the acts, the decrees, of the greatest of these depart-

ments, the Supreme Court. It being authorized to deter-

mine finally the law in cases before it, its determination

is thus itself made the law; for it is surely a rule of civil

conduct prescribed by the supreme power.

The learned commentator just referred to, after giving

the above definition of “law,” proceeds to explain that the

term “laws of England” includes the written and the un-

written laws of the kingdom, or parliamentary law and

common law; and that part of the latter are the ancient

decisions of the courts.

It is quite true that we cannot sustain our position that

the decisions of the Supreme Court are laws, wherever ap-

plicable, within the meaning of the Constitution, by point-

ing to any express provision therein to that effect. But it

is likewise true that there is nothing whatever therein

which specifically negatives such a contention.

Negation being absent, affirmation should be presumed,

being plainly in accord with, and in furtherance of, the

theory and intent of that instrument, of which there is strong

internal evidence, both negative and positive; for the grant

.of the power and the declaration of supremacy is a declara-

14

tion and a law that the exercise of the power shall not be

frustrated.

A government ought to contain in itself every power re-

quisite to the full accomplishment of the objects committed

to its care and to the complete execution of the trusts for

‘which it is responsible, free from every other control but a

regard to the public good and to the sense of the people.

(Federalist, No. 31.)

Said the great Chief-Justice from Virginia (in WeCul-

lough vy. Maryland, 4 Wheaton, 316): “This government

is acknowledged by all to be one of enumerated powers.

The principle that it can exercise only the powers granted

to it would seem too apparent to have required to be en-

forced by all those arguments which its enlightened friends,

while it was depending before the people, found it neces-

rary to urge; that principle is now universally admitted.

But the question respecting the extent of the powers actu-

ally granted is perpetually arising, and will probably con-

tinue so to arise as long as our system shall exist. In dis-

cussing these questions, the conflicting powers of the gen-

eral and State governments must be brought into view, and

the supremacy of their respective laws, when in opposition,

be settled.

“If any one proposition could command the universal

assent of mankind, we must expect it would be this: that

the government of the Union, though limited in its powers,

is supreme within its sphere of action. This would seem

to result necessarily from its nature. It is the government

of all; its powers are delegated by all; it represents all,

and acts for all. Though any one State may be willing to

control its operations, no State is willing to allow others to

control them. The nation, on those subjects on which it

can act, must necessarily bind its component parts.”

And the following from the same eminent source, spoken

with reference to the legislative branch of the govern-

ment, applies with equal force to the judicial: “We ad-

mit, as all must admit, that the powers of the government

are limited, and that the limits are not to be transcended.

15

But we think the sound construction of the Constitution

must allow to the national legislature that discretion

with respect to the means by which the powers it confers

are to be carried into execution, which will enable that

body to perform the high duties assigned to it in the man-

ner most beneficial to the people. Let the one be legiti-

mate, let it be within the scope of the Constitution, and

all means which are appropriate, which are plainly adapted

to that end, which are not prohibited, but consist with the

letter and spirit of the Constitution, are constitutional.”

These rules have ever since been accepted as a correct

exposition of the Constitution. They were expressly con-

firmed by the court in //ephurn v. Griswold, for whom

Chiei-Justice Chase said that the words “all laws neces-

sary and proper for carrying into execution” powers ex-

pressly granted, or vested, have in the Constitution a sense

equivalent to that of the words “laws,” “not absolutely

necessary,” ‘‘indeed,” “but appropriate,” plainly adapted to

constitutional and legitimate ends”; ‘laws not prohibited,

but consistent with the letter and spirit of the Constitu-

tion” ; “laws really calculated to effect objects entrusted to

the government.”

“The spirit as well as the letter of the law must be ob-

served, and when the whole demonstrates a particular in-

tent, to effect a certain object, some degree of implication

may be called in to aid that intent.” (Phillip’s S. C. Pr. 34.)

And in Story on the Constitution, section 422, these

principles are thus expounded: “A constitution of govern-

ment founded by the people for themselves and their pos-

terity, and for objects of the most momentous nature, for

perpetual union, for the establishment of justice, for the

general welfare, and for the perpetuation of the blessings

of liberty, necessarily requires that every interpretation of

its powers should have a constant reference to those ob-

jects. No interpretation of the words in which these pow-

ers are granted can be sound which narrow down their

ordinary import so as to defeat these objects.”

It is upon the application of these rules-of construction

16

that this court has of latter years recognized as constitu-

tional the exercise of powers far in excess of what was con-

sidered to be their limits before the necessity for their ex-

ercise arose, notably in regard to cases maritime and of

admiralty, of legal tender, of the prize cases, the civil rights

cases, and many others growing out of the changed condi-

tion resulting from civil war, of which jurisdiction was

taken, not being actually prohibited, because of the impera-

tive nature of the circumstances which demanded relief.

It is apparent that the expression “laws of the United

States,” used in conferring jurisdiction, does not mean

“Acts of Congress” only. When that expression was

framed, there were no “Acts of Congress,” and the Consti-

tution itself, in another clause, gives a different definition,

including both Constitution and treaties as sources of

“Jaws of the United States.” There is here much “law

of the United States” which was not made by Con-

gress. For example, there is something of the common

law, there is a deal of equity law, expressly referred to in

the Constitution; there is much of the laws of evidence

which consist in the general principles which the Federal

courts have adopted and established, to be found in their

reported decisions and deliverances, together with such

statutory regulations as Congress has seen fit to enact for

their guidance (Spear, Fed. Juris. 425); laws commercial

and international, and of admiralty, and laws maritime,

which the Supreme Court holds is that general system of

law which was familiar to lawyers and statesmen when the

Constitution was adopted. (The Lottawanna, 21 Wall.

558.) There is also martial law, the President’s proclama-

tions and war measures (20 Wall. 626), and the laws of the

States when administered by the Federal courts in the

States whose construction of State statutes are thencefor-

ward part of the State statute itself, and as such State and

Federal law both. There are the rules of pleading and

practice adopted by the Supreme Court. Its decisions, too,

are law to the parties, and when repeated and reiterated

become laws of property, and if of a general and public

17

character, as, for example, that a statute be constitutional,

or a power invalid, are law for all who claim thereunder

that the statute is constitutional, or the power invalid.

Manifestly, then, the expression “laws of the United

States” cannot mean “acts of Congress” only. It embraces

them of course, but also much other law from other sources.

It means the rule of civil conduct prescribed by the supreme

power in the United States ; and is synonymous with the great

word “constitution,” designating all fundamental law, all

the law of the land, all the rules of civil conduct prescribed

by the supreme powers. It is made the duty of the Presi-

dent to take care that the laws be faithfully executed (Article

II.), which he assumes by his oath of office, whose words

“to preserve, protect, and defend the Constitution,” are

deemed all-comprehensive, because all law emanates from

the Constitution and its provisions, and if it be “ preserved,

protected, and defended,” all that it commands and directs

will of necessity be faithfully performed. For the same

reason, and that the greater includes the less, the Act of

Congress of June 1, 1789, considers that the oath, “to

support the Constitution of the United States,” required of

all Federal and State officers, is all-sufficient.

If “acts of Congress” alone were meant by the expres-

sion, “laws of the United States,” would not the former

expression have been the one used, and invariably used,

whereas we find in the Constitution that laws are some-

times called “regulations of commerce,” sometimes “rules

of naturalization,” “laws of bankruptcy,” “laws of the

Union,” ete.?

This larger meaning of the word “law” in the provision

that “no State shall pass any law impairing the obligation

of contracts” has, in effect, been adopted’ by the Supreme

Court and in the Judiciary Act. (Rev. Stats., Sec. 709.)

As Congress may not enlarge the jurisdiction of this

court beyond what the Constitution confers, the language

of the Judiciary Act is to be understood in this respect as

simply defining the scope of the jurisdiction conferred

by the Constitution, and, therefore, its provision for writs

18

of error to State courts in cases of contracts and impair-

ment is but a definition of what the provision means. The

Constitution says that the contracts shall not be impaired

by State law, but the Judiciary Act uses the words “statute

of, vr an authority exercised under any State”; that is to

say, that any eyasion or denial of contract rights by any

functionary of a State, for which authority, real or pre-

tended, from one or the other of the departments of the

government is claimed, is an impairment of the contract

within the meaning of the Constitution, and the official

action is a “law” within the meaning of the Constitu-

tion.

The decisions of the Supreme Court fully support this

conclusion. The ordinary acceptation of the words are

that no State Legislature shall enact any law impairing the

obligation of contracts. But to this narrow meaning these

words are not now confined, and though somewhat strictly

. defined at first, as need has arisen their scope has

been enlarged to effectuate their intention, until now they

have been considered fully as comprehensive as we have

just written. When States sought to evade this prohibi-

tion by amending their Constitutions, it was promptly de-

termined that such an amendment was a “law” within this

meaning. And so, also, was a city ordinance ( Winston v.

Charleston, 2 Pet. 249), an act of a county court ( Wright

v. Nagle, 101 U.S. 793; City RB. 2. Co. v. Citizens R. LP.

Co., 166 U. S. 559), a law of the Confederate States ( W7/-

liams v. Bruffy, 96 U. 8.176; Ford v. Surgett, 97 U.S.

594), the act of tax collector attempting to collect a tax.

(Given v. Wright, 117 U. S. 656.)

Such have all been decided to be laws of a State im-

pairing a contract within the meaning of the Constitution,

mesning acts done by alleged authority of some part of a

State’s government. It has also been decided that a remedy

can no more be taken away by subsequent judicial decision

than by subsequent legislation. ( United States v. Muscatine,

8 Wall. 575.) And Mr. Spear (p. 576) writes, ‘‘ Whatever

the State regards as law is a statute within the meaning of

19

these words of the Constitution.” (Also Williams v. Bruffey,

96 U.S. 176). And, Bacon v. Texas, 163 U.S. 216, the court

says that the words “law of a State” do not mean only a

statute, or a constitution.

In very fact, therefore, it is the attempted exercise of

authority by a state-functionary, adversely to the contract,

which is the foundation of the Federal question, and not

alone the existence or passage of such a law by the State,

because, strictly, there can be no such law; the Constitu-

tion forbids. In the case of Poindexter v. Greenhow, 114

U.S. 270, the Federal question arose by reason of the Act

of January 26, 1882, forbidding the reception of coupons

for taxes, and jurisdiction was taken, notwithstanding that

the court held as just above stated, saying, “That (law) 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, certainly,

in contemplation of law it has not done.” (Page 288.)

We contend, then, that cases arising under the “laws

of the: United States” are also included in “cases arising

under the Constitution,” whence law proceeds, and there-

fore, whatever is done authoritatively, no matter by or

under which department of the government, is done by

authority of the Constitution, and cases arising “arise

under the Constitution.” The case at bar thus arises, be-

cause its correct decision depends on the construction of

the protection afforded by the Constitution to contracts

and to the decrees of its Supreme Court. (Cohens v. Vir-

ginia, 6 Wheat. 264.)

The description of the cases of which the Supreme

Court shall have jurisdiction is found in sec. 709, R. S.

What are “cases arising under the Constitution and laws

of the United States” are in effect defined by that section

to be not only those arising under “statutes,” but “under

authority exercised under the government,” as well as

those involving rights, privileges and immunities derived

from the United States. It may not be assumed, there-

fore, that the expression “laws of the United States”

means only “statutes of the United States.” All that the

20

government administers and considers as law falls within

the definition of the term. :

Now, it cannot be denied in this forum that a law has

been passed which has created a contract with the plain-

tiff in error, for this court has so decided. Nor, for the

same reason, can it be denied here that the Legislature

has passed an act which, if valid, impairs that contract;

nor that the decision complained of in destroying the con-

traces validates the act last referred to, thus not only valid-

ating that which the Supreme Ccurt has said is invalid, 7. ¢.,

the latter act, and invalidating what it has said to be valid,

i. é., the coupon contract, but legalizing an act which the

Constitution forbids, and making that to be law which it

says shall not be.

But leaving out of consideration for the present the

effect upon the case of the previous adjudications on these

statutes, we see two directly antagonistic statutes of Vir-

ginia, both of which cannot be legal, either of which may

be, if the other is not. If the first effectuated a contract,

the second is void; if it did not, the second is valid. The

Virginia court adjudicated that the first did not effectuate

a contract, and thus, without mentioning it, as effectually

validated the second as if that itself had been the actual

subject of adjudication, as, in fact, it had been in the pre-

vious “ Virginia coupon cases,” when it had been adjudged

invalid. And the result totally destroys the plaintiff in

error’s coupons. It is no answer to say that such would

be the direct result of the decision complained of even

though the forbidding statute had never been passed,

which is, therefore, supererogatory, and, whether valid or

invalid, is of no consequence, now that it has been decided

that there is no contract; for, in the first place, it cannot be

said in this court that there is no contract, for it hath finally

decided the reverse; and, in the second place, it is the

passage of such an act which the Constitution forbids—

the attempt to invade the contract; and this inhibition is

equally violated whether the act or the attempt be super-

erogatory or not. The reasoning of the court below, by

21

which it arrives at its decision, can have no effect to ex-

clude the Federal question. The Supreme Court hath re-

gard to results alone, and if the effect of the decision be to

validate any act obnoxious to the United States Constitu-

tion, jurisdiction will attach. It is the passage of the im-

pairing act, the bare attempt to impair which is obnoxious,

and upon which jurisdiction depends, and not at all that the

act is being enforced, or whether it be enforced at all. It

is the existence of a subsequent law which sustains the

jurisdiction, which only fails ‘when the State court de-

cides against a right claimed under a contract, and there

was no law subsequent to the contract.” (Water Works

Co. v. Louisiana Sugar Cv., 125 U.8.18.) So that though

the contract be evaded by other means and without refer-

ence to the subsequent act, and a case thus arise, although

there be no attempt to enforce or observe the obnoxious

statute if it be upon the statute book, even but as a dead

letter, if the decision disposes of an objection fatal to its

validity, it is thus indirectly validated and the Constitution

of the United States violated.

It has often been held by the Supreme Court that the

construction of its own statute by the highest court of a

State will be followed by the Supreme Court, even in mat-

ters of alleged contract claimed to be protected by the

United States Constitution. “Otherwise we would have to

review every case which decided that there was no con-

tract.” But that objection has no application here, this

court having already decided that there is a contract. You

follow the State court’s construction of jts own statute, be-

cause such construction is part of the statute itself, 7. e.,

the laws of the State, and Federal courts are commanded to

give effect to the law of the State where they are sitting.

After such a decision by State courts, therefore, there could

not be question of contract, because the State court had

held that there was no contract, and thus made a law which

the Federal courts must regard. No case of alleged con-

tract thus decided could be brought to the Supreme Court

upon appeal, because the decision of the State court is

22

State law. In the supposed case, it would, therefore, be

State law that the alleged contract was not such, and there

would be no case of contract for the Supreme Court to re-

view. But, however this may be as to cases of first impres-

sion in the State courts, its ha no relevance toa case like this,

where the Supreme Court hath already decided these very

questions, and ‘determines that there is a contract. /ts de-

cision, then, becomes part of the statute, part of the law,

and State courts may not disregard it, for it has become a

rule of conduct of the Supreme Court, a law of the United

States, and is authority in this case—authority under the

United States—for the payment of taxes with coupons, the

right to do which is an immunity and privilege thereunder,

a civil right which none can abridge, any denial whereof, or

attempt at abridgment, is forbidden by the Constitution.

Similarly, effect is given to the recent law repealing the

Verification Act, a repeal repugnant to the Constitution,

because the remedy afforded by the Act is the sole remedy

left to coupon holders by which they could enforce their

contract. The repeal was passed February 21, 1894, and

will be found on page 9 of the Attorney-General’s brief.

The decision complained of also gives an effect to the

general revenue law of the State which otherwise it would

not have. Tax-collectors, acting under it, are exercising

an authority under the State to compel the payment of

taxes in money, even though coupons might have been

tendered therefor; which compulsion is repugnant to the

United States Constitution if the coupon promise be a

contract. If it be not a contract, this exercise of authority

is lawful; and, if it be so, it is because of the Virginia de-

cision ; for the Supreme Court has decided that any such

action by a tax-collector, after a tender of coupons to him,

is unlawful and altogether without authority. (/vindexter

v. Greenhow, 114 U.S. 270.)

It is of no consequence that the revenue act made no

reference to coupons in the authority given to the tax-col-

lector, or, as has been demonstrated already, that the de-

cision of the Virginia court makes no reference to it. The

23

revenue law, in this respect, is a part of the general system

of the Legislature’s assault upon the coupon contract, but

for which this case could never have arisen; and if the de-

cision complained of be correct, the authority of the tax-

collector to levy upon and take the property of all who do

not pay their taxes (in money), not excepting those who

tender coupons therefor, is not obnoxious to the Constitu-

tion; and effect is thus given to this law also. Citations

have already been made, in our previous brief, to cases

wherein the impairment upon which the Federal question

arose was attributed solely to the action of a tax-collector

who erroneously construed the general revenue law to give

him the authority he claimed. Given v. Wright, 117 U.S.

656; Yazoo Co. v. Thomas, 1382 U. 8.174; and Railroad

Co. v. Alshrovk, 146 U.S. 293, were all cases wherein the

tax-collector attempted to collect taxes [upon property

claimed to be exempt under contracts] under authority of

his construction of the general revenue law, which made

no special mention of the property in question. In all of

them the State court decided that there was no contract

exemption. In all, the Supreme Court took jurisdiction,

because the decision whether or no there was a contract

exemption necessarily determines the legality of the au-

thority exercised by the officer, which was in violation of

the Constitution if there was a contract. In none of these

cases was there any legislative attack upon the contract, or

other unconstitutional legislation. The unauthorized act

of the officer was all that was complained of; and this act

by this officer, reverting to the Constitution, the unique

source of jurisdiction, was held to be within its meaning of

“a law impairing the obligation of a contract,” because re-

cognized and administered as law by the State. In @iven

v. Wright, the State court held, upon general principles,

that the contract exemption claimed had long ago perished

by non-user. In ’azv0 Co. v. Thomas, the State court's

decision that there was no contract exemption was also

upon independent grounds. In /ai/road Co. v. Alsbrovk,

the State court construed the exemption claimed as not in-

24

cluding a part of the property for which taxes were de-

manded, and then gave effect to the authority of the officer

who held that the property was taxable, and that there was

no exemption from the operation of the law under which

he acted. If there was a contract, an exemption, its obli-

gation was impaired; and as the inquiry whether there

was or was not was necessarily passed upon, the writ of

error was allowed. We pray to refer also to the recent

cases of Bacon v. Texas, 163 U. 8. 208, wherein the court

says that it suffices if the judgment complained of “in any

manner gives the slightest effect to the subsequent Act;”

Oxley Stave Co. vy. Butler Co., 166 U.S. 650; and LZ. & XV.

RL. RB. Co. v. Louisville, Id. 711, wherein the law of juris-

diction, pro and con, is again fully discussed, and defined

to be as we have stated above.

The Virginia court evidently sought to evade the review

of this court by grounding its decision as well upon the

construction of the Constitution of Virginia, which ante-

dated the coupon, as upon the application of general prin-

ciples of the common law of contracts. But this is a vain

attempt, for ‘the grounds upon which the State court held

the contract . . . invalid in no way affects the jurisdiction

of this court. The legal existence of the contract itself and

its proper construction is necessarily involved in the ques-

tion of alleged impairment (Mobile and Ohio BR. LR. Co.

v. Tennessee, 153 U. S. 436), and, “ Where it is charged

that the obligation of the contract has been impaired by

the State law .... as administered by State authorities,

and the State courts justify such impairment by the appli-

cation of some general law to the facts of the case, it is our

duty to inquire whether this justification is well grounded.

If it is not, the party is entitled to the constitutional pro-

tection.” (Given v. Wright, supra.) And, besides, the gen-

eral principles of the common law of contract belong to the

domain of general jurisprudence. ‘In this class of cases

this court is not bound by the judgment of the courts of

the States where the cases arise. It must hear and deter-

mine for itself. Here commercial securities are involved.

When the bonds were issued there had been no authorita-

25

tive intimation from any quarter that such statutes were in-

volved. The Legislature affirmed their validity in every

respect by an implication equivalent in effect to an express

declaration. And during the period covered by this enact-

ment neither of the other departments of the government

of the State lifted its voice against them. The acquies-

cence was universal.” (Zownship of Pine Grove v. Tulcott,

19 Wall. 677.)

These words, although not spoken of the Virginia bonds,

are in all respects most applicable, because after the early

decision of Antoni v. Wright, in 1873, which decided that

the coupons were valid obligations of the State, contracts,

there was unbroken acquiescence by all; laws were passed

recognizing and providing for the reception of the coupon

for taxes, and a second Funding Bill was passed in 1879,

which recognized the entire issue of 1871 as valid and bind-

ing, and made provision for the whole amount to be re-

funded, and that in exchange therefor other coupons [at

a lesser rate] should be issued, carrying the identical tax-

receivable feature which had been passed upon in Antoni

v. Wright, thus in effect ratifying that decision by Act of

the Legislature (Mangus v. McClellan, 93 Va. 789.)

Thus has been drawn in question both the validity of a

statute and an authority exercised under a State, and an

effect given to both repugnant to the Constitution.

It having been decided by the Supreme Court that every

holder of these coupons hath right to pay taxes therewith,

the exercise of this right by plaintiff in error is an exercise

of authority under the United States, and a State court’s

decision, which itself states is based upon the interpreta-

tion of the effect of these Supreme Court decisions, neces-

sitates a construction of the constitutional provision con-

cerning the effect to be given to judgments from other

States, and thus raises the Federal question, whether the

Constitution has been properly construed and the judg-

ments given full faith and credit. (//untington v. Altrell,

146 U.S. 657.) Such judgments must be given the same

effect as in the courts which rendered them. (Cheever v.

26

Wilson, 76 U. S. 108; Chew v. Brumagen, 80 U.S. 407,

Rev. Stat., sec. 905.) The Virginia court, referring to the

Supreme Court decisions, said: “In view of these deci-

sions, and being satisfied that the coupon feature of the Act

of 1871 . . . is stained with the vice of illegality, which

renders the whole coupon contract illegal and void, we

take, in view of the said Supreme Court's decision, the one

additional necessary step and declare the whole coupon

contract absolutely illegal and void.” (Commonwealth v.

McCullough, 90 Va. 619.)

It may not be said that the plaintiff in error cannot

cbaim any right under these judgments because he was no

party thereto, for though personal, they are also general,

constituting, as they do, a statute and a contract of the

State. They are, therefore, of a public nature, and affect

all equally whose rights are dependent upon them, or who

claim the same rights under the same statute and contract

which they adjudicate. A State court’s construction of a

statute of its State is part of the statute, and thus affects

all, and a decision of the Supreme Court must be equally

comprehensive as to matters actually litigated.

In tendering coupons for his taxes, the plaintiff in error

was exercising an authority, right, privilege, or immunity

under the State and also under the United States ; that is to

say, under decisions of the Supreme Court, which said: “It

may be laid down as undoubted law that the lawful owner of

any such coupons has the right to tender the same after ma-

turity in absolute payment of all taxes, debts, dues, and de-

mands due from him to the State.” (MeGahey v. Virginia,

135 U. 8. 668.) This right thus determined is of the most

absolute character, because when exercised he “is free from

all further liability in respect of said tax” (p. 184), and the

duty is imposed upon the tax collector to receive the cou-

pons offered as if they were money, and thus because, said

the court, the Act from which the right issues is, by force of

the Constitution of the United States, protected from im-

pairment or repeal, and made the unchangeable law of

Virginia. (Jvinderter v. Greenhow, 114 U. 8. 279.) So

27

absolute is this right that he who invades it, even under

color of law, is a trespasser; for he who thus exercises it

“has paid his taxes, and the collector had no authority to

attempt to enforce other payment. In doing so he ceases

to be an officer of the law, and becomes a private wrong-

doer.” It is a simple case in which the officer, a natural

private person, has unlawfully, with force and arms, seized,

taken, and detained the personal property of another. (P.

283.) “The Constitution of the United Statex 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-

fendant to receive the coupons” (p. 288), and thus created

the right of the tenderer to have them received. __

Such being the determination of the Supreme Court, he

who tenders thereafter, as did the plaintiff in error, exer-

cises an authority as well under this decision as under the

Constitution itself. “The mandate of the State affords no

justification for the invasion of rights secured by the Con-

stitution of the United States; otherwise that Constitution

would not be the supreme law of the land.” (P. 292.) ‘“ His

right was to have his coupons received.” (P. 299.) “The

Constitution of the United States guarantees the right. . .

to pay his taxes in coupons. The discrimination is made

against him in order to deprive him of that right, and, if

permitted, would have the effect of denying to him all re-

dress for a deprivation of a right secured him by the Con-

stitution. To take away all remedy for the enforcement of

a right is to take away the right itself. That is not within

the power of the State.” (P. 303.)

The cases of Dupasseau v. Lochereau, 21 Wall. 130;

Embry v. Palmer, 107 U.S. 3, and Crescent City Live Stock

(>. v. Butchers Union, 121 U.S. 141, are all authority for

the position that “when a State court refuses effect to the

judgment of a court of the United States rendered upon the

point in dispute, a question is undoubtedly raised which

may be brought to this court for revision (Jupasscau v.

Rocherean, supra); that a party relying upon such judg-

ment does so under an authority exercised under the

28

United States, ¢. ¢., under the laws of the United States

establishing the court, and, therefore, under the Constitu-

tion which authorizes these laws; and that it is a question

for the Supreme Court to determine, if the decision is ad-

verse, whether or not that effect has been given which the

Constitution requires. In Himbry v. Palmer the suit was

upon the judgment itself by the judgment creditor, and the

Supreme Court took jurisdiction to determine whether pro-

per effect had been given it, and affirmed the decree. The

jurisdiction, therefore, is not dependent upon error in the

decree, but upon the fact that the judgment was relied

upon, and was construed adversely by the court.

In Dupasseau v. Rochereau and Crescent City Live Stock

Co. v. Butchers’ Union, as in the case at bar, the judgment

was not the foundation of the suit, but was relied upon

collaterally to support the claim or the defence made. In

the first named, as here, the defendants were the same, but

the plaintiff not, and the judgment, which was /2ochereau v.

Suave, was adduced in Rochereau v. Dupasseau to show

that the then issue between the latter had been finally deter-

mined by the former judgment. Asin Embry v. Palmer the

Supreme Court took jurisdiction to determine whether due

effect had been given to the judgment, and found that it had.

In Crescent City Live Stock Co. v. Butchers’ Union, a

judgment of the United States Circuit Court was relied

upon by the defendant to show “probable cause,” and,

therefore, mitigation of the damages claimed. The Supreme

Court took jurisdiction, saying: ‘The question whether a

State court has given due effect to the judgment of a court

of the United States is a question arising under the Con-

stitution and laws of the United States, and comes within

the jurisdiction of the Federal courts by proper process.”

The Supreme Court found that proper effect had not been

given, and the decision was reversed. It is noteworthy, as

indicating how readily jurisdiction sometimes attaches, that

the judgment in controversy had previously been set aside

by the Supreme Court, and yet its construction furnished

ground for jurisdiction.

29

Said the court, in //untington vy. Altred/, 146 U.S. 657:

“When duly pleaded and proved in a court of that State,

they have the effect of being not only prima facie evidence,

but conclusive proof of the rights thereby adjudicated, and

a refusal to give them the force and effect in this respect

which they had in the State (court) where rendered denies

to the party a right secured to him by the Constitution

and laws of the United States.” It will be observed that

the judgment relied upon in this case was against only one

of the several defendants to the case reviewed, and he had

no actual interest in that controversy, which was to enforce

payment of the judgment from property which he had pre-

viously conveyed to the others.

In Great Western Railroad Co. v. Purdy, 162 U.S. 835,

the plaintiff relied upon an order of assessment as a judg-

ment of another State, which the State court denied. Said

the Supreme Court: “The question whether that court de-

clined to give full faith and credit to a judicial proceeding

of a court of another State, as required by the Constitution

and laws of the United States, was necessarily involved in

the decision. This court, therefore, has jurisdiction of the

case, but must judge for itself of the true nature and effect

of the order relied on.” And it decided that the order was

in no manner a judgment, and affirmed the court below.

In the case at bar the validity of the Act under which the

coupons in controversy were issued, and the abiding nature

of their contract, had been determined by the Supreme

Court, and its decisions were relied upon in support of the

judgment of the Circuit Court of Norfolk appealed from,

and also show that the matter then in controversy had

been litigated and finally settled. The Court of Appeals

considered and construed these decisions, and under the

shallow pretence of giving them effect did just the reverse,

and interpreted them adversely to the plaintiff in error.

Surely, then, the Supreme Court hath jurisdiction to de-

termine, as in the cases just cited, whether proper effect

was given to decisions thus drawn in question.

Indeed, this court hath practically actually decided that

30

it hath jurisdiction of this case, it having said in vindexr-

fer v. Greenhow, 114 U.S. 276, that the coupon holder’s

rights in and to his contract are guaranteed and secured

by the Constitution of the United States, and that, should

they be violated, ‘the grounds of the present judgment

would be his perfect defence; and as that defence made in

any cause, though brought in a State court, would present a

question arising under the Constitution and laws of the

United States, it would be within the jurisdiction of this

court to give it effect upon writ of error, without regard to

the amount or value in dispute.” The relator is entitled to

the remedy he asks, which can no more be taken from him

by subsequent judicial decisions than by subsequent legis-

lation. (UW. S. v. Muscatine, 8 Wall. 575.)

But the passage of the Fourteenth Amendment has put

at rest many of these questions as to the extent of the ju-

risdiction of this court, which heretofore have been the

subject of difference of opinion.

Valuable rights and privileges without number are now

granted and secured by the Constitution to citizens of the

United States, as distinguished from, and additional to,

those of citizens of different States, none of which rights may

with impunity be invaded, even by a State. It, therefore,

furnishes an additional guaranty against any encroach-

ments, in any manner whatever, by a State, or any official

thereof, upon any of those fundamental rights of a citizen

of the United States which are his by reason of the stipu-

lation or provision of the Constitution. (U/aéted States v.

Cruikshank, 92.U.8. 567.) It places them under the guard-

ianship of the national authority, and secures protection to

all its citizens against any abridgment of their rights from

any source, or under any pretext whatever. “The privi-

leges and immunities of citizens of the United States, of

every one of them, are secured against abridgment in any

form by any State.” (Slaughter-house cases, 16 Wall. 101.)

Not only now, therefore, are contract rights, and the few

others aforetime specified, protected from impairment by

State laws, but it is forbidden that any privilege or any

31

immunity of such citizen shall be abridged in any manner or

by any means. It therefore follows that, just in proportion

as the scope of these constitutional prohibitions has been

enlarged, so, also, has been extended the comprehensive-

ness of the term ‘“ Federal question” and the limits of the

jurisdiction of the Federal courts; for, clearly, any infrac-

tion of these new inhibitions would be a case arising under

the Constitution and laws of the United States, within the

meaning of the Judiciary Act.

A distinction between citizenship of the United States

and citizenship of a State is by this amendment for the first

time clearly recognized and established; distinct rights and

privileges, of many kinds and greatest value, of the former

are for the first time recognized and established, and, there-

fore, for the first time taken under the special protection

of the Constitution and committed to the special guardian-

ship of its courts.

In the Civil Rights cases, 109 U.S. 3, the purposes and

effects of this amendment are clearly described, and although

there was dissent as to the decision, all were of one mind

that the amendment nullifies and voids all State action of

any kind which impairs or abridges any of the privileges

and immunities of citizens of the United States, or which

injures them in life, liberty, or property and without due

process of law; rights which the United States creates or

confers it necessarily has the right and the duty to preserve

and protect. Positive rights and privileges are undoubtedly

secured by this amendment; secured by prohibition against

any State law or State proceedings abridging them.

Your latest explanation of its prohibition is found in

Chicago, B. & Q. Le. RB. v. Chicago, 166 U.S. 233, in these

words: “The prohibition of the Fourteenth Amendment

refers to all of the instrumentalities of the State; to its

legislative, executive, and judicial authorities, and, there-

fore, whoever, by virtue of public position under a State gov-

ernment, deprives another of any right protected by that

amendment, against deprivation by the State violates the

constitutional inhibition.”

32

The privileges and immunities thus protected are those ©

which arise from the nature and essential character of the

national government and the Constitution of the United

States. They are those to secure which the government

was formed and established. Experience had taught that

a national government was required for national purposes

—that the State governments alone were not sufficient for

the complete protection of the people; and for that reason

the people of the States, in order to form a more perfect

union, “establish justice,” etc., adopted the Constitution

for their mutual protection, security, benefit, and enjoy-

ment. (Kremler’s case, 136 U. S. 448, and those previ-

ously cited.)

In the beginning it was considered sufficient to trust en-

tirely, save in a few specified cases, to the State govern-

ment for the protection of all civil rights; but experience

has taught differently in this respect also, and the Four-

teenth Amendment was deemed necessary to protect a

State’s own citizens even from hostile legislation, perversion

of justice, and in the full enjoyment of their legal rights,

and to that end to “impose additional limitations on the

States, and confer additional power upon the United

States.” (Slaughter-house cases, 16 Wall. 82.)

Of such privileges and immunities, none can be of more

exalted importance than the right of one member of the

community—one citizen—that all of his co-members, his

fellow-citizens, shall recognize and respect the supremacy

of their Constitution, and obey and support its requirements ;

for this allegiance, which it is the duty of all to give, and

which correlatively it is the right of all that it shall be given,

is the very foundation-stone upon which their Constitution

rests. It is, therefore, the right of every citizen of the

United States that the supremacy of the several branches

of the government in their several departments, as provided

by the Constitution, shall be fully recognized and respected.

It is his right that the Supreme Court shall be recognized

and obeyed by all as supreme, and its decisions accepted

by all as ultimate and final. Any perversion of its judg-

33

ments, therefore, or failure to give due force and effect to

its decisions by State courts, under pretence of an interpre-

tation of its meaning and intended effect, or an application

of the principles of common law, is an assault upon its

high prerogatives, a denial of its supremacy, and an abridg-

ment of the rights of every citizen of the United States,

who, by their Constitution, have ordained that its decisions

shall be questioned by none, but shall be final and con-

clusive, and its decrees shall be obeyed and respected as

such by all.

As already said, the case at bar presents a feature not

shown in any of the many cases which have been adjudi-

cated here upon the question of jurisdiction. It is, that

the issue adjudged by the State court had previously

been determined by this court. It has again and again

construed these funding statutes of the State of Virginia,

and decided that they are constitutional, and that the cou-

pons issued by their authority are valid and binding obli-

gations of the State of Virginia, so that, when the Virginia

tribunal failed to recognize the finality and conclusiveness

of the decision of this court, and itself adjudged precisely

the reverse, under the shallow pretence that the principles

of the common law necessarily produced this result [as if the

common law in Virginia can be superior to the Constitu-

tion of the United States!], it has invaded the prerogative

of this, the Supreme Court, nullified its decree, disregarded

the requirements of the Constitution, and thus, directly

and indirectly, abridged McCullough’s privilege and im-

munity as a citizen of the United States, that this august

tribunal shall be the Supreme Court of the United States,

and its decisions final and conclusive of all matters which

it determines.

And, indeed, the decision of the Virginia court is also

obnoxious to the second clause of the Fourteenth Amend-

ment, because its effect is to deprive appellant of his pro-

perty—his coupon—without due process of law. The

authorities of the State having obtained possession of the

coupon for the sole purpose of determining whether it be

34

genuine, which it has been proven to be, have, nevertheless,

dismissed the owner from court without its restitution, and

the State, the debtor, retains possession of his property,

the valuable evidence of her indebtedness, to her own bene-

fit and profit and without aught of compensation to him.

In a subsequent case, decided by a successor bench, it was

held manifestly unjust not to returt the soupons to the tax-

payer when his petition for their verification was dismissed,

and in that case it was so ordered. (JMueury v. Virginia,

92 Va. 310.) But without this it is submitted that, as the re-

sult of the decision complained of is utterly to destroy the

value of the covpon in the interest of the State, who is its

obligor, while the proceeding in which this was done was

instituted and conducted for an entirely different purpose,

it cannot be considered due process of law for attaining

the result which has been accomplished. The coupon is a

promise by the State to pay the sum it names, or to be re-

ceived in payment of that amount of tax. Payment has

long ago been refused, and, the State being non-justiciable,

the holder has no remedy for this wrong but reliance upon

the tax-receivable promise, and now the court decrees that

this alternative is not obligatory, and the State retains the

coupon. Thus, in effect, petitioner's property, although

genuine, is confiscated to the State without either compen-

sation or due process of law to that end.

If we have been wearisome we beg that our prolixity

may be excused in consideration of the serious character

of the Virginia court’s attack upon the supremacy of this

court. Since the momentous case of Martin v. /unter,

there has never been a State decision likely to entail more

grievous consequences if allowed to stand unrebuked, or

one which, if imitated, could more seriously abridge the

rights of citizens of the United States. Our best efforts are

therefore aroused to defeat an attempt so fraught with mis-

chief.

When a record before you upon a writ of error discloses

for certain that a constitutional right of the plaintiff has

been invaded, your honors have not always been rigid in

your requirements as to the manner in which the Federal

35

question is made to appear, deeming the “how” unimpor-

tant if the fact be apparent. Itis true that there are deci-

sions difficult to reconcile without careful analysis, but it

is also true that there are none declining jurisdiction,

wherein it is indisputable that the Federal right was

decided, even where Federal protection had not been spe-

cially invoked.

The Judiciary Act does not prescribe the manner in which

this protection must be “claimed,” or how it shall be “spe-

cially setup.” In Sayward vy. Denny, 158 U.S. 180, it was

held sufficient, if called to the attention of the court in

some proper way, and the decision of the court was ad-

verse, and in Chicago, Burlington and Quincy R. R. v.

Chicago, 166 U.S. 231, if it appears from the record that

such right was set up or claimed [/. ¢., in some other man-

ner] in the State co

This text is long and has been trimmed here. Open the source document for the complete record.