888.

*334

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 nothing 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.

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.

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 attempt to collect them, by seizing property or otherwise, it would be a differ

ent 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 inoney. 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.

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 right, 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.

So, if

738, was of that class; so was that of Dartmouth College v. Woodward, 4 Wheat. 518; so was that of New Jersey v. Wilson, 7 Cranch, 165. looked at carefully, were those of Davis v. Gray, 16 Wall. 203, and Board of Liquidation v. McComb, 92 U. S. 531; although these last cases approach nearer to suits against a state than any others which have received the sanction of this court. In all these cases the state has attempted to do some unconstitutional act, injurious to the party, or some act which it had entered into a contract not to do; and redress was sought against such aggressive act; they, none of them, exhibit the case of a state declining to pay a debt or to perform an obligation, and the party seeking to enforce its performance by judicial process. As for the great mass of cases in which the remedies of mandamus and injunction have been sanctioned, to compel state officers to do, or refrain from doing, some act in which the plaintiff had an interest, they have generally been cases in which the law made it the duty of the officers to do the act commanded, or not to do the act forbidden. Those of a different 'character, as where a remedy has been taken away, have been purely cases of demands by one individual against another, and not of an individual against the state. The present cases differ toto cœlo from any of these. They are attempts to coerce a state by judicial proceedings; as before stated, they are that, and nothing else. It is useless to attempt to deceive ourselves by an adroit use of words, or by a train of metaphysical reasoning. We cannot, in that way, change the nature of things.

This is the first time, we believe, since the eleventh amendment was adopted, in which a state has been coerced by judicial proceedings at the suit of individuals in the federal courts. That this is such a case, seeins one of the plainest proposition that can be stated.

As the observations already made apply equally to actions against the officers of the state brought to recover damages, or to recover property taken for taxes, as to bills for injunction and applications for mandamus, only a few words are necessary to be added in reference to the suit of Poindexter v. Greenhow, in which the first opinion was read, and to the trespass cases similarly situated. Those are actions brought, not by citizens of another state, but by citizens of Virginia herself, in her own courts; and the highest court of Virginia has adjudged them to be untenable. Our jurisdiction is invoked to reverse this decision, and to sustain the actions.

The eleventh amendment, it is true, does not prohibit the extension of the judicial power of the United States to suits prosecuted against a state by its own citizens. But the evident reason of this is that the judicial power was not granted to the United States by the original constitution in such cases; hence, as it was not granted, it was not deemed necessary to prohibit it. It was evidently supposed that the control of all litigation against a state by its own citizens was in its own power, among that mass of rights which was reserved to the states and the people. It would be very strange to say that, although a state cannot, in any case, be sued by a citizen of another state since the adoption of the eleventh amendment, yet, in a case arising under the constitution and laws of the United States, it may be sued by its own citizens. This would be to deprive the state, with regard to its own citizens, of its sovereign right of exemption from suit.

It seems to us that the absurdity of this proposition is its sufficient answer. Unless the state chooses to allow itself to be sued it cannot be sued. It has this prerogative if no other. It is admitted, in point of form, that it cannot be sued by the citizens of other states, or of foreign states, because of the eleventh amendment. The whole argument of the opinions of the majority of the court is directed to the object of showing that the state is not sued in the suits under consideration. We do not remember that it is anywhere contended that the state can be sued by its own citizens, against its own law, merely because the eleventh amendment does not in terms extend to that

case.

In our judgment none of these suits can be maintained, for the reason that they are, in substance and effect, suits against the state of Virginia. We have not thought it necessary or proper to make any remarks on the moral aspects of the case. If Virginia or any other state has the prerogative of exemption from judicial prosecution, and of determining her own public policy with regard to the mode of redeeming her obligations, it is not for this court, when considering the question of her constitutional rights, to pass any judgment upon the propriety of her conduct on the one side or on the other.

(114 U. S. 492)

ATLANTIC PHOSPHATE Co. v. GRAFFLIN.

(May 4, 1885.)

SALE-DELIVERY-DRAFTS AGAINST CARGOES-TITLE-LIABILITY FOR PRICE.

A contract was made by A., of Charleston, with D., of Baltimore, for the sale and delivery, at Charleston, of 2,500 tons of kainit, to be shipped from August to October, 1880, at a fixed price, cash on delivery of each cargo. The kainit was to come from R., at Hamburg. D. procured G., for a commission paid him by D., to send to R. a credit on London for the amount of 2,500 tons of kainit in five cargoes, under which R. obtained the money. G. paid drafts against the credit to the amount of the cargoes. The declarations and invoices by R., presented before the consul at Hamburg, named G. as the consignee at Charleston, and the bills of lading made the cargoes deliverable at Charleston to G. or his assigns. These papers were sent to A. before any of the cargoes arrived, with an invoice for each cargo in the shape of a bill made out thus: A. bought of G. a cargo of kainit shipped by such a véssel, such a quantity, such a price; and a power of attorney, under which A.'s agent, as attorney for G., entered the cargoes at the custom-house at Charleston in February and March, 1881, as imported by G., and made oath that G. was the owner. A. received and accepted the cargoes. Held, (1) G. was the owner of the cargoes, and sold and delivered them to A., to be paid for on delivery free from any claim growing out of the contract of A. with D. or R. for any breach of that contract as to the time of shipping the cargoes; (2) A. was liable to G. for the price of the cargoes, with interest from their delivery.

In Error to the Circuit Court of the United States for the District of South Carolina.

Samuel Lord, for plaintiff in error. C. N. West and Jas. Lowndes, for defendant in error.

*BLATCHFORD, J. This is an action at law, brought in the circuit court of the United States for the district of South Carolina, by John C. Grafflin against the Atlantic Phosphate Company, a South Carolina corporation. The complaint sets forth, as a first cause of action, that the defendant is indebted to the plaintiff in the sum of $2,792.60, with interest from February 24, 1881, "the same being due to the plaintiff for a cargo of kainit, sold and delivered by the plaintiff to the defendant," on that day, "at the special instance and request of the defendant." It sets forth four other like causes of action, for cargoes of kainit, amounting to $3,347.55, March 3, 1881; $1,743.37, March 15, 1881; $5,083.53, March 16, 1881; and $2,483.37, March 18, 1881. Bills of particulars are annexed, showing the vessels, quantities, and prices. The total amount is $15,450.42; and there is added a cause of action for that sum, with interest, as money advanced, laid out, and expended by the plaintiff for the use of the defendant, at its special instance and request. The cargoes are stated to amount to 2,500 tons.

The answer contains a general denial of all the causes of action. It also avers a purchase by the defendant, in May, 1880, through one Dunan, of Baltimore, representing himself as agent of one Radde, of Hamburg, of 2,500 tons of kainit, to be shipped between August 1, 1880, and October 31, 1880; further purchases by it, afterwards, from the same parties, of 1,550 tons, for future shipment, all by January 1, 1881; the receipt by it of, and payment for, 1,080 tons on the 2,500 tons' contract; its receipt of the five cargoes sued for; and its willingness to pay for the cargoes according to the contracts there

*495

for, subject to its claims for damages for the *non-performance, by the vendors, of the contract of May, 1880, in that the cargoes were not shipped within the time and in the manner specified in the contract, but arrived when the business of the year was over, and when the goods were much depreciated in value; which damages, amounting to $9,586.82, it claims to recoup.

The answer also avers that the defendant purchased the cargoes mentioned in the complaint, at Hamburg, under the contract, and received the same under the circumstances above set forth, and was, from the time of the shipment of the kainit, the owner thereof; that the invoices for all of the cargoes shipped by Radde to the defendant were in the name of Dunan; that on January 25, 1881, Dunan requested the defendant to return his invoices and substitute similar ones in the name of Grafflin, and it did so, but it never made any new contract, in regard to any of the cargoes, with Grafflin; that it never received any notice of the assignment of the contract or cargoes to Grafflin; that, if Grafflin advanced money on the cargoes, he did so subject to the rights of the defendant under the contract, and was conversant with those rights; and that Graffin was the real principal in the contract. To the counter-claim so set up the plaintiff replied, alleging that he, and not Radde, owned the kainit; that it was sold and delivered to, and accepted and received by, the defendant as the property of the plaintiff, free from the claim made for recoupment; and that he and the defendant never occupied any other relations than those of seller and buyer of the kainit, set forth in the complaint, at the prices agreed to be paid. The case was tried before a jury, and resulted in a verdict for the plaintiff for the $15,450.42, with interest on the amount of each cargo from the date of its delivery; and there was a judgment accordingly, to review which the defendant brings this writ of error.

The bill of exceptions embodies all the evidence, by a stipulation between the parties, made in this court. There was no dispute as to any material question of fact. The transactions originated in the following letter, dated April 29, 1880, from Dunan, at Baltimore, to Pelzer, Rodgers & Co., at Charleston, they being the general agents there of the defendant: "Radde cables sell Atlantic 2,500 tons best quality Eagle mine genuine raw kainit, guarantied to test not below 24 per cent. sulphate of potash by the German chemist, Dr. Ulex; to be shipped during the summer and fall months,-say from August to October, inclusive,-for $7.50 per ton of 2,240 lbs. in taking_Hamburg weights. The kainit to be delivered at your Atlantic Phosphate Company's wharf, Ashley river, port of Charleston, S. C. The price of $7.50 per ton includes cost, freight, and insurance to your wharf. From the price, as the quantity is large, I will rebate 10 cents per ton. Terms of payment, cash on delivery of each cargo.' Pelzer, Rodgers & Co. replied, by writing to Dunan, on May 10, 1880, as follows: "We will take 2,500 tons of best kainit, as described by you, to test not less than 24 per cent. sulphate of potash, to be delivered at our wharf on Ashley river, at seven dollars 50-100 per ton of 2,240 lbs."

To enable Radde to send the cargoes to the defendant, the plaintiff, who resided in Baltimore, at the request of Dunan, and for a compensation of 1 per cent. commission, paid to him by Dunan, sent to Radde, at Hamburg, a credit with Brown, Shipley & Co., of London, for the amounts of five cargoes, under which Radde drew on Brown, Shipley & Co., paying them their commission, and Brown, Shipley & Co. drew on the plaintiff. They received the shipping documents from Radde and sent them to the plaintiff, and he paid their drafts. He directed them to ship the cargoes to Charleston. The shipping documents consisted of bills of lading, charter-party, consular invoices for entry at the custom-house, certificates of analysis and weight in Hamburg, and memorandum invoices. The declarations before the United States consul, at Hamburg, were made by Radde, as owner, and they named the plaintiff as the consignee at Charleston; and they and the consular certificates