upon the mandamus, requiring them to be received in payment of the taxes, and the money previously paid refunded. The validity of this act became the question in Antoni v. Greenhow, ubi supra, and it was affirmed on the ground that, for the purpose of specifically enforcing the right to have the coupons received in payment of taxes, the new remedy was substantially equivalent to the old one. The court were not willing to decide that it was a suit against the state in which the mode of proceeding could be modified, or the remedy taken away altogether, at the pleasure of the state. And it affirmed the right of the coupon-holder to have his coupon received for taxes when offered. "The question here," said the court, "is not as to that right, but as to the remedy the holder has for its enforcement when denied." "The question,' said the chief justice, delivering the opinion of the court, "we are now to consider is not whether, if the coupon tendered is in fact genuine and such as ought under the contract to be received, and the tender is kept good, the treasurer can proceed to collect the tax by distraint, or such other process as the law allows, without making himself personally responsible for any trespass he may commit, but whether the act of 1882 violates any implied obligation of the state in respect to the remedies that may be employed for the enforcement of its contract, if the collector refuses to take the coupon."

"

That was a case in which it was sought, by mandamus, specifically to enforce the contract of the state with the coupon-holder, by compelling, by affirmative action and process of law, the collector actually to receive the coupons tendered in satisfaction of taxes. It left unaffected the right of the coupon-holder and tax-payer, after his tender had been unlawfully refused, to stand upon his contract and the law, in defense of his rights, both of person and property, against all unlawful assaults and seizures. In the former he was an actor, seeking affirmative relief, to compel the specific performance of the contract. In the latter he is a defendant, passively resting on his rights, and resisting only demands and exactions sought to be enforced against him in denial of them. He has himself, in all things, performed the contract on his part, and obeyed the law, and simply insists that if more is illegally exacted and taken from him, he shall have the remedy which the law gives to every other citizen, not himself in default, against the wrongdoer, who, under color of law, but without law, disturbs or dispossesses him. As we have seen, the coupon-holder, whose tender of genuine coupons in payment of taxes has been refused, stands upon the same footing, in this respect, as though he had tendered gold coin in similar circumstances and with like result.

The question next in order is whether he has any, and, if any, what remedy for the recovery of property distrained to pay the same tax which he has 2 thus already offered and attempted to pay in money or its equivalent. It is well settled by many decisions of this court that, for the purpose of affecting proceedings to enforce the payment of taxes, a lawful tender of payment is equivalent to actual payment, either being sufficient to deprive the collecting officer of all authority for further action, and making every subsequent step illegal and void. In Woodruff v. Trapnall, 10 How. 190, 208, it was held that a tender of the notes of the bank of the state of Arkansas, by law and a contract with the note holders made receivable in payment of public dues to the state, was equivalent to payment, in extinguishing the judgment in satisfaction of which they were offered. The court said: "The law of tender which avoids future interest and costs has no application in this case. The right to make payment to the state in this paper arises out of a continuing contract, which is limited in time by the circulation of the notes to be received. They may be offered in payment of debts due to the state, in its own right, before or after judgment, and without regard to the cause of indebtment." In the case of U. S. v. Lee, 106 U. S. 196, S. C. 1 SUP. CT. REP. 240, it was held that a certificate of a sale of land for taxes, made by commissioners, which

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by law was rendered impeachable by proof that the taxes had been paid previous to sale, was rendered void by proof that the commissioners had refused to receive the taxes, without proof of an actual tender, where the commissioners had waived it by a previous notice that they would not accept it. In the opinion of the court it is said: "This court has, in a series of cases, established the proposition that where the commissioners refused to receive such taxes, their action in thus preventing payment was the equivalent of payment in its effect upon the certificate of sale;" citing Bennett v. Hunter, 9 Wall. 326; Tacey v. Irwin, 18 Wall. 549; Atwood v. Weems, 99 U. S. 183; and Hills v. Exchange Bank, 105 U. S. 319.

The case, then, of the plaintiff below is reduced to this: He had paid the taxes demanded of him by a lawful tender. The defendant had no authority of law thereafter to attempt to enforce other payment by seizing his property. In doing so he ceased to be an officer of the law, and became a private wrongdoer. It is the simple case in which the defendant, a natural private person, has unlawfully, with force and arms, seized, taken, and detained the personal property of another. That an action of detinue will lie in such a case, according to the law of Virginia, has not been questioned. The right of recovery would seem to be complete, unless this case can be met and overthrown on some of the grounds maintained in argument by counsel for the defendant in error. These we proceed now to examine in their order.

It is objected, in the first place, that the law and contract, by which the quality of being receivable in payment of taxes to the state is imputed to the coupons, is itself in violation of that clause of the constitution of the United States (article 1, § 10) which declares that no state shall "emit bills of credit," and is therefore void. The coupons in question are in the ordinary form, and one of them reads as follows:

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"Receivable at and after maturity for all taxes, debts, and demands due the state.

"The commonwealth of Virginia will pay the bearer thirty dollars, interest due first January, 1884, on bond No. 2,731. "Coupon No. 20.

GEO. RYE, Treasurer."

It is contended that this is a bill of credit in the sense of the constitution, because, being receivable in payment of debts due the state, and negotiable by delivery merely, it was intended to pass from hand to hand and circulate as money. The meaning of the term "bills of credit," as used in the constitution, has been settled by decisions of this court. By a sound rule of interpretation it has been construed in the light of the historical circumstances which are known to have led to the adoption of the clause prohibiting their emission by the states, and in view of the great public and private mischiefs experienced during and prior to the period of the war of independence, in consequence of unrestrained issues, by the colonial and state governments, of paper money, based alone upon credit. The definition thus deduced was not founded on the abstract meaning of the words, so as to include everything in the nature of an obligation to pay money, reposing on the public faith, and subject to future redemption, but was limited to those particular forms of evidences of debt which had been so abused to the detriment of both private and public interests. Accordingly, Chief Justice MARSHALL, in Craig v. Missouri, 4 Pet. 410, 432, said that "bills of credit signify a paper medium intended to circulate between individuals, and between government and individuals, for the ordinary purposes of society." This definition was made more exact by merely expressing, however, its implications, in Briscoe v. Bank of Kentucky, 11 Pet. 257, 314, where it was said: "The definition, then, which does include all classes of bills of credit, emitted by the colonies or states, is a paper issued by the sovereign power, containing a pledge of its faith and de

signed to circulate as money." And again, page 318: "To constitute a bill of credit, within the constitution, it must be issued by a state, on the faith of the state, and be designed to circulate as money. It must be a paper which circulates on the credit of the state, and is so received and used in the ordinary business of life." The definition was repeated in Darrington v. Bank of Alabama, 13 How. 12.

10

It is very plain to us that the coupons in question are not embraced within these terms. They are not bills of credit in the sense of this constitutional prohibition. They are issued by the state, it is true. They are promises to pay money. Their payment and redemption are based on the credit of the state, but they were not emitted by the state in the sense in which a government emits its treasury notes, or a bank its bank-notes—a circulating medium or paper currency-as a substitute for money. And there is nothing on the face of the instruments, nor in their form or nature, nor in the terms of the law which authorize their issue, nor in the circumstances of their creation or use, as shown by the record, on which to found an inference that these coupons were designed to circulate in the common transactions of business, as money, nor that in fact they were so used. The only feature relied on to, show such a design or to prove such a use is that they are made receivable in 2 payment of taxes and other dues to the state. From this,*it is argued that* they would obtain such a circulation from hand to hand as money as the demand for them, based upon such a quality, would naturally give. But this falls far short of their fitness for general circulation in the community, as a representative and substitute for money, in the common transactions of business, which is necessary to bring them within the constitutional prohibition against bills of credit. The notes of the bank of the state of Arkansas, which were the subject of controversy in Woodruff v. Trapnall, 10 How. 190, were, by law, receivable by the state in payment of all dues to it, and this circumstance was not supposed to make them bills of credit. It is true, however, that in that case it was held they were not so because they were not issued by the state and in its name, although the entire stock of the bank was owned by the state, which furnished the whole capital, and was entitled to all the profits. In this case the coupons were issued by the state of Virginia and in its name, and were obligations based on its credit, and which it had agreed, as one mode of redemption, to receive in payment of all dues to itself in the hands of any holder; but they were not issued as and for money, nor was this quality impressed upon them to fit them for use as money, or with the design to facilitate their circulation as such. It was conferred, as is apparent from all the circumstances of their creation and issue, merely as an assurance, by way of contract with the holder, of the certainty of their due redemption in the ordinary transactions between the state treasury and the tax-payers. They do not become receivable in payment of taxes till they are due, and the design, we are bound to presume, was that they would be paid at maturity. This necessarily excludes the idea that they were intended for circulation at all.

It is next objected that the suit of the plaintiff below could not be maintained, because it is substantially an action against the state of Virginia, to which it has not assented. It is said that the tax collector who is sued, was an officer and agent of the state, engaged in collecting its revenue under a valid law, and that the tax he sought to collect from the plaintiff was lawfully due; that, consequently, he was guilty of no personal wrong, but acted only in an official capacity representing the state, and, in refusing to receive the coupons tendered, simply obeyed the commands of his principal whom he was lawfully bound to obey; and that if any wrong has been done, it has been done by the state in refusing to perform its contract, and for that wrong the state is alone liable, but is exempted from suit by the eleventh article of amendment to the constitution of the United States, which declares that "the judicial power of the United States shall not be construed to extend to any

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suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state."

This immunity from suit secured to the states, is undoubtedly a part of the constitution of equal authority with every other, but no greater, and to be construed and applied in harmony with all the provisions of that instrument. That immunity, however, does not exempt the state from the operation of the constitutional provision that no state shall pass any law impairing the obligation of contracts; for it has long been settled that contracts between a state and an individual are as fully protected by the constitution as contracts between two individuals. It is true that no remedy for a breach of its contract by a state, by way of damages as compensation, or by means of process to compel its performance, is open under the constitution in the courts of the United States by a direct suit against the state itself, on the part of the injured party, being a citizen of another state, or a citizen or subject of a foreign state. But it is equally true that whenever, in a controversy between parties to a suit, of which these courts have jurisdiction, the question arises upon the validity of a law by a state impairing the obligation of its contract, the jurisdiction is not thereby ousted, but must be exercised with whatever legal consequences to the rights of the litigants, may be the result of the determination. The cases establishing these propositions, which have been decided by this court since the adoption of the eleventh amendment to the constitution, are numerous. Fletcher v. Peck, 6 Cranch, 87; New Jersey v. Wilson, 7 Cranch, 164; Green v. Biddle, 8 Wheat. 1, 84; Providence Bank v. Billings, 4 Pet. 514; Woodruff v. Trapnall, 10 How.*190; Wolff v. New Orleans, 103 U. S. 358; Jefferson Branch Bank v. Skelly, 1 Black, 436.

It is also true that the question whether a suit is within the prohibition of the eleventh amendment is not always determined by reference to the nominal parties on the record. The provision is to be substantially applied in furtherance of its intention, and not to be evaded by technical and trivial subtleties. Accordingly, it was held in New Hampshire v. Louisiana, and New York v. Louisiana, 108 U. S. 76, S. C. 2 SUP. CT. REP. 176, that, although the judicial power of the United States extends to "controversies between two or more states," it did not embrace a suit in which, although nominally between two states, the plaintiff state had merely permitted the use of its name for the benefit of its citizens in the prosecution of their claims, for the enforcement of which they could not sue in their own names. So, on the other hand, in Cunningham v. Macon & B. R. Co. 109 U. S. 446, S. C. 3 SUP. CT. REP. 292, 609, where the state of Georgia was not nominally a party on the record, it was held that, as it clearly appeared that the state was so interested in the property that final relief could not be granted without making it a party, the court was without jurisdiction. In that case, the general question was discussed in the light of the authorities, and the cases in which the court has taken jurisdiction, when the objection has been interposed, that a state was a necessary party to enable the court to grant relief, were exainined and classified. The second head of that classification is thus described: "Another class of cases is where an individual is sued in tort for some act injurious to another in regard to person or property, to which his defense is that he has acted under the orders of the government. In these cases he is not sued as, or because he is, the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defense he must show that his authority was sufficient in law to protect him." And in illustration of this principle reference was made to Mitchell v. Harmony, 13 How. 115; Bates v. Clark, 95 U. S. 204; Meigs v. McClung's Lessee, 9 Cranch, 11; Wilcox v. Jackson, 13 Pet. 498; Brown v. Huger, 21 How. 315;*Grisar v. McDowell, 6 Wall. 363; and U. S v Lee, 106 U. S. 196; S. C. 1 SUP. CT. REP. 240.

The ratio decidendi in this class of cases is very plain. A defendant sued as a wrong-doer, who seeks to substitute the state in his place, or to justify by the authority of the state, or to defend on the ground that the state has adopted his act and exonerated him, cannot rest on the bare assertion of his defense. He is bound to establish it. The state is a political corporate body, can act only through agents, and can command only by laws. It is necessary, therefore, for such a defendant, in order to complete his defense, to produce a law of the state which constitutes his commission as its agent, and a warrant for his act. This the defendant, in the present case, undertook to do. He relied on the act of January 26, 1882, requiring him to collect taxes in gold, silver, United States treasury notes, national bank currency, and nothing else, and thus forbidding his receipt of coupons in lieu of money. That, it is true, is a legislative act of the government of Virginia, but it is not a law of the state of Virginia. The state has passed no such law, for it cannot; and what it cannot do, it certainly, in contemplation of law, has not done. The constitution of the United States, and its own contract, both irrepealable by any act on its part, are the law of Virginia; and that law made it the duty of the defendant to receive the coupons tendered in payment of taxes, and declared every step to enforce the tax, thereafter taken, to be without warrant of law, and therefore a wrong. He stands, then, stripped of his official character, and, confessing a personal violation of the plaintiff's rights, for which he must personally answer, he is without defense.

AI

No better illustration of this principle can be found than than which is furnished by the case of U. S. v. Lee, 106 U. S. 196, S. C. 1 SUP. CT. REP. 240, in which it was applied to a claim made on behalf of the national government. The action was one in ejectment, to recover possession of lands, to which the plaintiff claimed title. The defendants were natural persons, whose defense was that they were in possession as officers of the United States under the orders of the government and for its uses. The attorney general called this aspect of the case to the attention of the court, but without making the United States a party defendant. It was decided by this court that to sustain the defense, and to defeat the plaintiff's cause of action, it was necessary to show that the defendants were in possession under the United States, and on their behalf, by virtue of some valid authority. As this could not be shown, the contrary clearly appearing, possession of lands, actually in useas a national cemetery, was adjudged to the plaintiffs. The decision in that case was rested largely upon the authority of Osborn v. Bank of U. S. 9 Wheat. 738, which was a suit in equity against an officer of the state of Ohio, who sought to enforce one of her statutes which was in violation of rights secured to the bank by the constitution of the United States. The defendants, Osborn and others, denied the jurisdiction of the court, upon the ground that the state was the real party in interest and could not be sued, and that a suit against her officers, who were executing her will, was in violation of the eleventh amendment of the constitution. To this objection, Chief Justice MARSHALL replied: "If the state of Ohio could have been made a party defendant, it can scarcely be denied that this would be a strong case for an injunction. The objection is that, as the real party cannot be brought before the court, a suit cannot be sustained against the agents of that party; and cases have been cited to show that a court of chancery will not make a decree unless all those who are substantially interested be made parties to the suit. This is certainly true where it is in the power of the plaintiff to make them parties; but if the person who is the real principal,-the person who is the true source of the mischief, by whose power and for whose advantage it is done, be himself above the law, be exempt from all judicial process, it would be subversive of the best-established principles to say that the laws could not afford the same remedies against the agent employed in doing the wrong. which they would afford against him could his principal he joined in the suit." v.58-58