In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.

475

*The plaintiff in error, who was plaintiff below, took passage at Camden, New Jersey, for Philadelphia, on a ferry boat belonging to the defendant, a New Jersey corporation engaged in the business of transporting passengers, animals, and vehicles across the Delaware between those cities. On that trip the boat was unusually crowded with passengers. The river at the time was very full of ice, and it was difficult for the boat to get across and enter the ferry-slip on the Philadelphia side. The wharf on that side was reached only. after repeated efforts. In the attempt to land the boat was driven against the bridge with such force as to throw the plaintiff and a number of other persons (all of whom were standing during the passage across the river) with great violence upon the floor. The fall caused serious and perhaps permanent injury to the plaintiff. In this action she claims damages from the defendant upon the ground that her injuries resulted from the careless and negligent management of the ferry-boat by its agents and servants. The plaintiff made a case entitling her to go to the jury upon the issue as to the defendant's negligence. But there was also proof tending to show that the striking of the boat against the wharf on the Philadelphia side occurred under peculiar circumstances, and could not, perhaps, have been avoided by any diligence upon the part of the agents of the defendant. When the evidence was concluded, and after the parties submitted their requests for instructions, the court delivered its charge upon the whole case, reading to the jury the instructions asked by either party that were approved, and accompanying them with such observations, by way of explanation or qualification, as it deemed necessary.

The third and fourth points submitted in behalf of plaintiff were overruled. They were as follows: "Third. If the jury believe from the evidence that the defendants received the plaintiff as a passenger, and that they failed to provide her with a seat, or that she was unable to obtain a seat by reason of the crowded condition of the boat, and while standing in the cabin she was, without any fault of her own, thrown down and injured by a sudden shock to the boat, then the defendants are guilty of negligence, and your verdict should be for the plaintiff. Fourth. If the jury believe from the evidence that the defendants received the plaintiff, a woman 67 years of age, as a passenger, and that they failed to provide her with a seat, or that she was unable to obtain a seat by reason of the crowded condition of the boat, and, while standing in the cabin, she was, without any fault of her own, thrown down and injured by a sudden shock to the boat, then the defendants were guilty of negligence, and your verdict should be for the plaintiff."

At the conclusion of the charge, the plaintiff, by counsel, excepted to the overruling of her third and fourth points, and also to "the charge and opinion" of the court. No other exceptions were taken.

гог.

Jerome Carty, B. Frank Clapp, and Mayer Suetzberger, for plaintiff in erSaml. Dickson and Richd. C. Dale, for defendant in error. Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court:

1. The general exception to the charge did not direct the attention of the court to the particular portions of it to which the plaintiff objected. It therefore raises no question for review by this court. Connecticut Life Ins. Co. v. Union Trust Co. 112 U. S. 250, 261; S. C., ante, 119, and authorities there cited.

2. The only question for determination relates to the refusal of the court to instruct the jury as indicated by the third and fourth points of the plaintiff, which involve, substantially, the same proposition. Those points were properly overruled. Under the theory of the case which they present, the jury-although the sudden shock to the boat, from which plaintiff's injuries

v.5s-61

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In

immediately resulted, may have occurred without want of care or skill upon the part of the defendant's servants-would have been required to find for the plaintiff, if the defendant failed to provide her with a seat, or if she was unable, by reason of the crowded condition of the boat, to obtain one. other words, that the mere failure of the company to provide a seat for a passenger on its boat was, in law, and of itself, proof of negligence. It appeared in evidence that the boat was provided with seats; but it did not appear that a less number was provided than was customary and sufficient for those who ordinarily preferred to be seated while crossing in ferry-boats between Camden and Philadelphia. No circumstances were disclosed that would have justified the jury in finding that a proper degree of care upon the part of defendant required it to provide seats sufficient for the accommodation of all the passengers that its boat could safely carry, or of such number of passengers as ordinarily traveled upon it.

The judgment is affirmed.

(114 U. S. 270)

POINDEXTER D. GREENHow, Treasurer. etc.

In Error to the Hustings Court of the City of Richmond, State of Virginia.

WHITE 0. SAME.

CARTER D. SAME.

In Error to the Circuit Court of the United States for the Eastern District of Virginia. ALLEN, Auditor, etc., and others v. BALTIMORE & O. R. Co.

Appeal from the Circuit Court of the United States for the Western District of Virginia. PLEASANTS v. GREENHOw, Treasurer, etc.

Appeal from the Circuit Court of the United States for the Eastern District of Virginia.

CHAFFIN ข. TAYLOR.

In Error to the Supreme Court of Appeals of the State of Virginia.

MARYE, Auditor, etc., and others v. PARSONS.

Appeal from the Circuit Court of the United States for the Eastern District of Virginia.

(April 20, 1885.)

For majority opinions in above cases see ante, 903, 923, 924, 925, 928, 931, 932.

*BRADLEY, J., dissenting. The chief justice, and Justices MILLER, GRAY, and myself, dissent from the opinions and judgments of the majority of the court in which they sustain the claims of the holders of coupons against the state of Virginia, and I have been requested to state the grounds on which our dissent is based. And, first, those which apply to the case of the Baltimore & Ohio Railroad Company. This company is a corporation of the state of Maryland, and operates, as lessee, certain railroads situated in Virginia. It filed a bill in equity in the circuit court of the United States for the Western district of Virginia, alleging a tender of coupons in payment of the taxes due upon the railroads in its possession, and praying for a decree declaring that such tender (with a deposit of the coupons in court) amounted to payment, and that the proceedings of the auditor in imposing a penal assessment for pretended non-payment of the taxes were void, and that an injunction be issued to restrain the treasurer from seizing or selling any of the property of the company for the said taxes.

The fundamental ground of our dissent is that this proceeding, and all the other proceedings on these coupons brought here for our review, are virtually suits against the state of Virginia to compel a specific performance by the state of her agreement to receive the said coupons in payment of all taxes, dues, and demands. However just such a proceeding may seem in the abstract, or however willing courts might be to sustain it if it were constitu-. tional, yet, looking at the case as it really is, we regard it as directly repugnant to the eleventh amendment of the constitution, which declares that "the judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against any one of the United States by citizens of another state, or by citizens or subjects of any foreign state."

The counsel for the bondholders press upon our attention that provision of the constitution which declares that no state shall pass any law impairing the obligation of a contract, and insist that the laws passed by the legislature of Virginia forbidding the receipt of coupons for taxes, since the passage of the act of 1871 by which they were made receivable, are unconstitutional and absolutely void, and that no officer or tax collector of the state is bound to regard, but, on the contrary, each is bound to disregard them. So that we have one provision of the constitution set up against the other, and are asked to enforce that relating to contracts by regarding the individual officers as the real parties proceeded against, and ignoring the fact that, in the matter of receiving coupons in payment of taxes, the officers only represent the state. By this technical device it is supposed that the eleventh amendment may be evaded. In our opinion this is not a sound or fair interpretation of the constitution. If the contract clause and the eleventh amendment come into conflict, the latter has paramount force. It was adopted as an amendment to the constitution, and operates as an amendment of every part of the constitution to which it is at any time found to be repugnant. Every amendment of a law or constitution revokes, alters, or adds something. It is the last declared will of the law-maker, and has paramount force and effect. The states became dissatisfied with certain parts of the constitution as construed by the courts, whereby, in a manner not anticipated, they were subjected to be dragged into court like a common delinquent at the suit of individuals. They demanded that this should be changed, and it was changed by the eleventh amendment. The language of the constitution was not changed, but it became subject and subordinate to the paramount declaration of the amend-ment. The constitution still declares that no state shall pass any law impairing the obligation of a contract; but the effect of the amendment is that. even if a state should pass a law impairing the validity of its own contract, no redress can be had for the enforcement thereof against the state in the federal courts. In other words, in consequence of the amendment, no state can be coerced into a fulfillment of its contracts or other obligations to individuals by the instrumentality of the federal judiciary. It is true, it cannot proceed against them contrary to its contract; but, on the other hand, it cannot be proceeded against on its contract. All those who deal with a state have full notice of this fundamental condition. They know, or are bound to know, that they must depend upon the faith of the state for the performance of its contracts, just as if no federal constitution existed, and cannot resort to compulsion unless the state chooses to permit itself to be sued.

Moreover, the eleventh amendment is not intended as a mere formula of words, to be slurred over by subtle methods of interpretation, so as to give it a literal compliance, without regarding its substantial meaning and purpose. It is a grave and solemn condition, exacted by sovereign states, for the purpose of preserving and vindicating their sovereign right to deal with their creditors and others propounding claims against them, according to their own views of what may be required by public faith and the necessities of the body politic. We have no right, if we were disposed, to fritter away the substanc

332

of this solemn stipulation by any neat and skillful manipulation of its words. We are bound to give it its full and substantial meaning and effect. It is only thus that all public instruments should be construed.

Now, what is the object of all this litigation which fills our courts in reference to the Virginia bonds and coupons, but an attempt, through the medium of the federal courts, to coerce the state of Virginia into a fulfillment of her contract? To enforce a specific performance of her agreement? It is nothging less. That is the object of the bill in the case of the Baltimore & Ohio Railroad Company. That is the object of the bill of Parsons against the state auditor and others. That is also the object of those actions of detinue and trespass which are brought against the collectors of Richmond and other places. Injunctions are sought, mandamuses are sought, damages are sought, for the sole purpose of enforcing a specific performance of the engagement made by the state, by the act of 1871, to receive the coupons of its bonds issued under that act in payment of taxes and other dues to the state.

*334

There is no question about the validity of the taxes. They are admittedly due. The officer is entitled to collect them; his authority is undisputed. The coupons are tendered in payment, not as money, for they have no quality of money, but as a set-off, which, as is insisted, the state has agreed to allow. The tax-payer stands on this agreement. That is the situation; and that is the whole of it. He stands on the agreement, and seeks to enforce it. All suits undertaken for this end are, in truth and reality, suits against the state, to compel a compliance with its agreement. A set-off is nothing but a crossaction, and can no more be enforced against a state, without its consent, than a direct action can be. When set-offs are allowed against the sovereign, it is always by virtue of some express statute. It is argued, however, that these coupons are not set-offs, but cash. How it can be pretended that they are cash it is difficult to comprehend. To regard them as cash would make them unconstitutional and void under that clause of the constitution which prohibits any state from emitting bills of credit. But it is insisted that, if not cash, the state agreed that they should be received as cash. Then it is the agreement which is relied on; and, as before said, it is the performance of this agreement which is sought to be enforced.

etr

Another argument made use of to show that the coupons are not set-offs, is that, by virtue of the agreement to receive them in payment, they inhere in the claim for taxes as a ground of extinguishment, and not as a distinct counter-demand. This cannot be true, because taxes imposed by the state, or by its authority, are pure and unmixed duties, accruing year by year for the public service, without any relation to, or dependence upon, collateral obligations. Whether the tax-payer has or has not any coupons is an accidental circumstance in no way affecting his taxes. If he has them, and does not tender them, his taxes must be paid; if he has them, and does tender them, they can only be tendered by way of set-off; for, as we have seen, they have no necessary connection with or relation to the taxes until they are so tendered. The coupons, then, are tendered, and the tax collector declines to receive them. The state does not permit him to receive them. By subsequent legislation it has declared that the taxes must be paid in money, and that the tax collector must receive nothing else in payment, and that coupons, if offered, must be investigated in a juridical way to ascertain their genuineness before they will be paid, and when so ascertained, the provision for paying them is ample. The officers have no power but what the state gives them. They act for and on behalf of the state, and in no other way. To sue them, therefore, because they will not receive the coupons in payment, is virtually to sue the state. The whole object is to coerce the state. To say otherwise is to talk only for effect, without regard to the truth of things.

If the taxes were not due, or were unconstitutional, and the collector should attoript to collect them, by seizing property or otherwise, it would be a different thing. There would then be an invasion of the citizen's property without lawful authority. That would be a trespass on the part of the officer for which he would be properly liable in suit. So, if the tax-payer should tender the amount of his tax in lawful money, and the collector should refuse it, and should proceed to distrain for the tax, then he would also be a trespasser.

But neither of these things is this case. The tax is due-undisputedly due; no money is tendered; the tax-payer only offers to set off the coupons, which are nothing but due-bills of the state, and pleads the state's collateral agreement to receive them. This is not money, and bears no resemblance to money. It is simply a promise. The state, for reasons of its own, declines, to comply with its agreement in mode and form, and forbids its officers to receive the coupons in payment of taxes. The tax-payer insists that the state shall comply with its agreement. All the proceedings instituted by him to enforce the receipt of the coupons, or to obtain redress against the collector for not receiving them, or for proceeding to collect the tax, have that object alone in view-to compel the state to fulfill its agreement. It is idle to say that the proceeding is only against the officers. That is a mere pretense. The real object is to coerce the state through its officers; to compel a specific performance by the state of its agreement. It all comes back to this.

But it is said that it is not the state, but the government of the state, which declines to receive the coupons, contrary to engagement. It is said that the government does not represent the state when it does an unconstitutional act, or passes an unconstitutional law. While this may be averred, (as it was averred in Texas v. White, 7 Wall. 700,) when the government of a state attempts to force the state from its constitutional relations with the United States, and to produce a disruption of the fundamental bonds of the national compact; and while in such a case it may be admissible to say that the government of the state has exercised a usurped authority, this mode of speech is not admissible in ordinary cases of legislation and public administration. A state can only act by and through its constituted authorities, and it is represented by them in all the ordinary exhibitions of sovereign power. It may act wrongly; it may act unconstitutionally; but to say that it is not the state that acts is to make a misuse of terms, and tends to confound all just distinctions. It also tends, in our judgment, to inculcate the dangerous doctrine that the government may be treated and resisted as a usurpation whenever the citizen, in the exercise of his private judgment, deems its acts to be unconstitutional.

3

But, then, it will be asked, has the citizen no redress against the unconstitutional acts or laws of the state? Certainly he has. There is no difficulty on the subject. Whenever his life, liberty, or property is threatened, assailed, or invaded by unconstitutional acts, or by an attempt to execute unconstitutional laws, he may defend himself, in every proper way, by habeas corpus,** by defense to prosecutions, by actions brought on his own behalf, by injunction, by mandamus. Any one of these modes of redress, suitable to his case, is open to him. A citizen cannot, in any way, be harassed, injured, or destroyed by unconstitutional laws without having some legal means of resistance or redress. But this is where the state, or its officers, moves against him. The right to all these means of protection and redress against unconstitutional oppression and exaction is a very different thing from the right to coerce the state into a fulfillment of its contracts. The one is an indefeasible sight, a right which cannot be taken away; the other is never a right, but may or may not be conceded by the state; and, if conceded, may be conceded onsuch terms as the state chooses to impose.

All the cases that are cited from the books in which redress has been afforded to individuals by the courts against state action, are cases arising out of the first class, and not out of the second; cases of state aggression, and not of refusal to fulfill obligations. The case of Osborne v. U. S. Bank, 9 Wheat.