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executive officers, or administering funds actually in the public treasury, as was held to be the case in Louisiana v. Jumel, 107 U. S. 711; S. C. 2 SUP. CT. REP. 128; it is not an attempt to compel officers of the state to do the acts which constitute a performance of its contract by the state, as suggested by a minority of the court in Antoni v. Greenhow, 107 U. S. 769, 783; S. C. 2 SUP. CT. REP. 91; nor is it a case where the state is a necessary party, that the defendant may be protected from liability to it, after having answered to the present plaintiff. For, on this supposition, if the accounting officers of the state government refuse to credit the tax collector with coupons received by him in payment of taxes, or seek to hold him responsible for a failure to execute the void statute, which required him to refuse coupons in payment of taxes, in any action or prosecution brought against him in the name of the state, the grounds of the judgment rendered in favor of the present plaintiff will constitute his perfect defense. And as that defense, made in any cause, though brought in a state court, would present a question arising under the constitution and laws of the United 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.

In the case of Osborn v. Bank of U. S. 9 Wheat. 738, 853, Chief Justice MARSHALL put, by way of argument and illustration, the very case we are now considering. He said: "Controversies respecting boundary have lately existed between Virginia and Tennessee, between Kentucky and Tennessee, and now exist between New York and New Jersey. Suppose, while such a controversy is pending, the collecting officer of one state should seize property for taxes belonging to a man who supposes himself to reside in the other state, and who seeks redress in the federal court of that state in which the officer resides. The interest of the state is obvious. Yet it is admitted that in such a case the action would lie, because the officer might be treated as a trespasser, and the verdict and judgment against him would not act directly on the property of the state. That it would not so act, may, perhaps, depend on circumstances. The officer may retain the amount of the taxes in his hands, and, on the proceedings of the state against him, may plead in bar the judgment of a court of competent jurisdiction. If this plea ought to be sustained, and it is far from being certain that it ought not, the judgment so pleaded would have acted directly on the revenue of the state in the hands of its officers. And yet the argument admits that the action, in such a case, would be sustained. But suppose, in such a case, the party conceiving himself to be injured, instead of bringing an action sounding in damages, should sue for the specific thing, while yet in possession of the seizing officer. It being admitted, in argument, that the action sounding in damages would lie, we are unable to perceive the line of distinction between that and the action of detinue. Yet the latter action would claim the specific article seized for the tax, and would obtain it, should the seizure be deemed unlawful.”

Although the plaintiff below was nominally the actor, the action itself is purely defensive. Its object is merely to resist an attempted wrong, and to restore the status in quo as it was when the right to be vindicated was invaded. In this respect, it is upon the same footing with the preventive remedy of injunction in equity, when that jurisdiction is invoked, and of which a conspicuous example, constantly followed in the courts of the United States, was the case of Osborn v. Bank of U. S., ubi supra. In that case the taxing power of the state was resisted on the ground that its exercise threatened to deprive the complainant of a right conferred by the constitution of the United States. The jurisdiction has been constantly exerted by the courts of the United States to prevent the illegal taxation of national banks by the officers of the states. And in Cummings v. National Bank, 101 U. S. 153, 157, it was laid down as a general principle of equity jurisdiction "that when a rule or system of valuation is adopted by those whose duty it is to make the assess

ment, which is designed to operate unequally and to violate a fundamental principle of the constitution, and when this rule is applied not solely to one individual, but to a large class of individuals or corporations, equity may properly interfere to restrain the operation of this unconstitutional exercise of power." And it is no objection to the remedy in such cases that the statute, whose application in the particular case is sought to be restrained is not void on its face, but is complained of only because its operation in the particular instance works a violation of a constitutional right; for the cases are numerous where the tax laws of a state, which in their general and proper application are perfectly valid, have been held to become void in particular cases, either as unconstitutional regulations of commerce, or as violations of contracts prohibited by the constitution, or because in some other way they operate to deprive the party complaining of a right secured to him by the constitution of the United States. At the present term of this court, at least three cases have been decided, in which railroad companies have been complainants in equity, seeking to restrain officers of states from collecting taxes, on the ground of an exemption by contract, and no question of jurisdiction has been raised. The practice has become common, and is well settled on incontestable principles of equity procedure. Memphis R. R. v. Railroad Com'rs, 112 U. S. 609; S. C. ante, 299; St. Louis, etc., Ry. Co. v. Berry, 113 U. S. 465; S. C. ante, 529; Chesapeake & O. R. R. Co. v. Miller, 114 U. S. -; S. C. ante, 813.

It is still urged upon us, however, in argument, that, notwithstanding all that has been or can be said, it still remains that the controversy disclosed by the record is between an individual and the state; that the state alone has any real interest in its determination; that the practical effect of such determination is to control the action of the state in the regular and orderly administration of its public affairs; and that, therefore, the suit is and must be regarded as a suit against the state, within the prohibition of the eleventh amendment to the constitution. Omitting for the time being the consideration already enforced, of the fallacy that lies at the bottom of this objection, arising from the distinction to be kept in view between the government of a state and the state itself, the premises which it assumes may all be admitted, but the conclusion would not follow. The same argument was employed in the name of the United States in the Lee Case, and did not prevail. It was pressed with the greatest force of which it was susceptible in the case of Osborn v. Bank of U. S., and was met and overcome by the masterly reasoning of Chief Justice MARSHALL. It appeared early in the history of this court, in 1799, in the case of Fowler v. Lindsey, 3 Dall. 411, in which that able magistrate, Mr. Justice WASHINGTON, pronounced his first reported opinion. On a motion to remove the cause by certiorari from the circuit court, on the ground that it was a suit in which a state was a party, it being an ejectment for lands, the title to which was claimed under grants from different states, he said: "A case which belongs to the jurisdiction of the supreme court on account of the interest that a state has in the controversy must be a case in which a state is either nominally or substantially the party. It is not sufficient that a state may be consequentially affected, for in such case (as where the grants of different states are brought into litigation) the circuit court has clearly a jurisdiction. And this remark furnishes an answer to the suggestions that have been founded on the remote interest of the state in making retribution to her grantees upon the event of an eviction."

The thing prohibited by the eleventh amendment is the exercise of jurisdic tion in a "suit in law or equity commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state." Nothing else is touched; and suits between individuals, un less the state is the party, in a substantial sense, are left untouched, no matter how much their determination may incidentally and consequentially affect

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the interests of a state, or the operations of its government. The fancied inconvenience of an interference with the collection of its taxes by the government of Virginia, by suits against its tax collectors, vanishes at once upon the suggestion that such interference is not possible, except when that government seeks to enforce the collection of its taxes contrary to the law and contract of the state, and in violation of the constitution of the United States. The immunity from suit by the state, now invoked, vainly, to protect the individual wrong-doers, finds no warrant in the eleventh amendment to the constitution, and is, in fact, a protest against the enforcement of that other provision which forbids any state from passing laws impairing the obligation of contracts. To accomplish that result requires a new amendment, which would not forbid any state from passing laws impairing the obligation of its own contracts.

What we are asked to do is, in effect, to overrule the doctrine in Fletcher v. Peck, 6 Cranch, 87, and hold that a state is not under a constitutional obligation to perform its contracts, for it is equivalent to that to say that it is not subject to the consequences when that constitutional prohibition is applied to suits between individuals. We could not stop there. We should be required to go still further, and reverse the doctrine on which that constitutional provision rests, stated by Chief Justice MARSHALL in that case, when he said: "When, then, a law is in its nature a contract, when absolute rights have vested under that contract, a repeal of the law cannot divest those rights; and the act of annulling them, if legitimate, is rendered so by a power applicable to the case of every individual in the community. It may well be doubted whether the nature of society and of government does not prescribe some limits to the legislative power; and, if any be prescribed, where are they to be found if the property of an individual, fairly and honestly acquired, may be seized without compensation? To the legislature all legislative power is granted; but the question, whether the act of transferring the property of an individual to the public be in the nature of legislative power, is well worthy of serious reflection." And in view of such a contention, we may well add the impressive and weighty words of the same illustrious man, when he said, in Marbury v. Madison, 1 Cranch, 137: "The government of the United States has been emphatically termed a government of laws and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.” It is contended, however, in behalf of the defendant in error, that the act of January 26, 1882, under which he justified his refusal of the tender of coupons, does not impair the obligation of the contract between the couponholder and the state of Virginia, inasmuch as it secures to him a remedy equal in legal value to all that it takes away, and that, consequently, as the state may lawfully legislate by changing remedies so that it does not destroy rights, the remedy thus provided is exclusive, and must defeat the plaintiff's action. The remedy thus substituted and declared exclusive is one that requires the tax-payer demanding to have coupons received in payment of taxes, first, to pay the taxes due from him in money, under protest, when, within thirty days thereafter, he may sue the officer to recover back the amount paid, which, on obtaining judgment therefor, shall be refunded by the auditor of public accounts out of the treasury. By the amendment passed March 13, 1884, the coupons tendered are required to be sealed up and marked for identification, filed with the petition at the commencement of the suit, produced on the trial as evidence of the tender, and delivered to the auditor of public accounts, to be canceled when he issues his warrant for the amount of the judgment.

It is contended that, in view of this remedy, the case is ruled by the decision of this court in Antoni v. Greenhow, 107 U. S. 769; S. C. 2 SUP. CT. REP. 91. We have, however, already shown, by extracts from the opinion of the court in that case, that the question involved in the present proceeding was

not covered by that judgment. In that case the plaintiff in error was seeking to compel the officer specifically to receive his coupons in payment of taxes by mandamus, on the ground that he was entitled to that remedy when the contract was made by the law of March 30, 1871. The law giving that remedy was subsequently amended, requiring the petitioner to pay the taxes in money in the first instance, and permitting the writ to issue only after a trial, in which the genuineness of the coupons tendered had been established. The court held that he might have been put to the same proof in the former mode of proceeding, and that the amendment did not destroy the efficiency of the remedy.

But here the plaintiff did not seek any compulsory process against the of ficer to require him specifically to receive the coupons tendered. He offered them and they were refused. He chose to stand upon the defensive, and maintain his rights as they might be assailed. His right was to have his coupon received for taxes when offered. That was the contract. To refuse to receive them was an open breach of its obligation. It is no remedy for this that he may acquiesce in the wrong, pay his taxes in money which he was entitled to pay in coupons, and bring suit to recover it back. His tender, as we have already seen, was equivalent to payment, so far as concerns the legality of all subsequent steps by the collector to enforce payment by distraint of his property. He has the right to say he will not pay the amount a second time, even for the privilege of recovering it back. And if he chooses to stand upon a lawful payment once made, he asks no remedy to recover back taxes illegally collected, but may resist the exaction, and treat as a wrong-❤ doer the officer who seizes his property to enforce it.

It is suggested that the right to have coupons received in payment of taxes is a mere right of set-off, and is itself but a remedy subject to the control of legislation. Ordinarily, it is true, the right to set off mutual independent debts, by way of compensation and satisfaction, is dependent on the general law, does not enter into the contract, although it may be the lex loci contractus, and is dependent for its enforcement upon the lex fori, when suit is brought, and consequently may be changed by the legislature, without impairing vested rights. But in such cases the right is entirely dependent upon the general law, and changes with it. It is different, when, as in many cases of equitable set-off, it inheres in the transaction, or arises out of the relations of the parties; and it may in any case, as it was in this, be made the subject of contract between parties. When this is done, it stands upon the footing of every other lawful contract, upon valuable consideration, the obligation of which cannot be impaired by subsequent legislation.

It is urged upon us, however, that in a revenue system, a provision of law which gives to a party complaining of an illegal exaction of taxes, the right to recover back the amount in dispute only after previous payment under protest, as the sole remedy, against either the officer or the government, is a just and reasonable rule, sufficiently securing private rights, and convenient, if not necessary, to the interests of the public. We are referred to the revenue laws of the United States for illustration and example, and the question is put, why a similar provision, as it is assumed to be, should not be considered adequate as a remedy for the holders of coupons in Virginia, who have been denied the right to use them in payment of taxes.

The answer is obvious and complete. Virginia, by a contract which the constitution of the United States disables her from impairing, has bound herself that it shall be otherwise. The state has agreed that the coupons cut from her bonds shall be received in payment of taxes due to her, as though they were money. When the tax-payer has tendered such coupons, he has complied with the agreement, and in legal contemplation has paid the debt he owed the state. So far as that tax is concerned, and every step taken for enforcing its payment in disregard of that tender, the coupon-holder is with

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drawn from the power and jurisdiction of the state. He is free from all further disturbance, and is securely shielded by the constitution in his immunity. No proceeding, whatever its pretext, which does not respect this right, can be judicially upheld. The question is not of the reasonableness of a remedy for a breach of the contract to receive the tendered coupons in payment of the tax; it is whether the right to have them so received, and the use of that right as a defense against all further efforts to exact and compel payment of the tax, in denial and defiance of that right, can be taken away without a violation of that provision of the constitution which prohibits the states from passing laws which impair the obligation of contracts. Certainly, a law which takes from the party his whole contract, and all the rights which it was intended to confer, must be regarded as a law impairing its obligation.

Another point remains for consideration. Section 721, Rev. St., provides that "the laws of the several states, except where the constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply;" and section 914, Rev. St., declares that "the practice, pleadings, and forms and modes of proceeding in civil causes, other that equity and admiralty causes, in the circuit and district courts, shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held, any rule of court to the contrary notwithstanding." Upon these sections it is argued that, admitting the acts of the general assembly of Virginia of January 26, 1882, and the amendment by the act of March 13, 1884, to be unconstitutional and void, so far as they forbid tax collectors from receiving coupons in payment of taxes, nevertheless, as the state has control over the forms of action and modes of proceeding by way of remedy, and has forbidden, in cases where the tax collector has refused coupons in payment of taxes, any personal action against him other than the suit to recover back the tax demanded and paid under protest, the same law, by force of the Revised Statutes of the United States, must govern in the courts of the United States.

It is not entirely clear, on the face of the act of January 26, 1882, that it does forbid actions against the officer for illegally levying upon the property of the coupon-holder for the tax which he has offered to pay. The language of the act seems to embrace only such suits as are framed with the direct object of preventing or restraining him from taking steps to collect the tax. And this uncertainty is not made clear by the amendatory act of March 13, 1884, which, by expressly forbidding actions of trespass or trespass on the case to be brought or maintained against any collecting officer for levying upon the property of any tax-payer who may have tendered coupons in payment of the tax demanded, would seem to have left the action of detinue, which was authorized in such cases by the previously existing law of Virginia, untouched by the prohibition. We shall assume, however, for the purposes of this opinion, that these acts of the general assembly of Virginia were intended to and do forbid every action, of whatever kind, against the collecting officer, for the recovery of specific property taken by distraint, or of damages for its caption or detention, and leaves to the coupon-holder, as his sole right of action, the suit to recover back the money illegally collected from him.

This action, as we have already seen, is no remedy whatever for the loss of the specific right of paying his taxes with coupons. It does not even profess so to be. Neither is it a remedy for the loss of the right sought to be vindicated in this and other personal actions against the collector for unlawfully taking from the plaintiff his property. And, upon the supposition made, this wrong is without remedy by any law of Virginia. The direct result, then, of giving effect to these provisions of the act in question is to defeat entirely the right of the coupon-holder to pay his taxes with his coupons, which we