[102] Federal question. Pierce v. Somerset Rail-a judgment of said court in favor of the I am authorized to state that Mr. Justice Gray concurs in this dissent. A. A. MCCULLOUGH, Piff. in Err., v. COMMONWEALTH OF VIRGINIA. (See S. C. Reporter's ed. 102-133.) Virginia law that coupons of bonds shall be received for taxes, etc., is valid-decision of state court, when not binding on Federal court-special taxes—Federal question-limits of review of state judgments -costs-vested right not taken away by repeal of statute. 1. The coupon provision of Va. act March 30, validity of a state statute which constitutes courts. 6. Judgment for costs cannot be rendered against the plaintiff in an action which has abated. 7. ute which authorized the state to be sued. [No. 3.] Statement by Mr. Justice Brewer: *On March 30, 1871, the general assembly[103] of the state of Virginia passed an act for the refunding of the public debt. (Va. Acts Assembly, 1870-71, p. 378. See also act of March 28, 1879; Va. Acts Assembly, 1878-79, p. 264.) This act, which authorized the issue of new coupon bonds for two thirds of the old bonds, leaving the other third as the basis of an equitable claim upon the state of West Virginia, contained this provision: "The coupons shall be payable semiannually, and be receivable at and after maturity for all taxes, debts, dues, and demands due the state, which shall be so expressed on their face." Under this act a large amount of the outstanding debt of the state was refunded. This provision gave value to the bonds as affording an easy method of securing payment of the interest. This refunding scheme, however, did not prove satisfactory to the people of the state, and since then there has been repeated legislation tending to destroy or impair the right granted by this provision. Among other statutes may be noticed the following: The act of March 7, 1872 (Acts of Assembly, 1871-72, p. 141), providing that it should not be "lawful for the officers charged with the collection of taxes or other demands of the state, due now or that shall hereafter become due, to receive in payment thereof anything else than gold or silver coin, United States Treasury notes, or notes of the national banks of the United States." That of March 25, 1873 (Acts of Assembly, 187273, p. 207), imposing a tax of fifty cents on the hundred dollars market value of bonds, and directing that such amount be deducted from coupons tendered in payment of taxes or dues. At the time the act of 1871 was passed and the new bonds and coupons were issued, the court of appeals of the state had jurisdiction to grant a mandamus in any action where the writ would lie according to the principles of the common law, and *in Antoni v. Wright [104] 22 Gratt. 883, it was held by that court that mandamus was the proper remedy to compel the collector to accept coupons offered in payOn January 14, 1882, the as ment of taxes. A rightful judgment against the state gives Submitted November 2, 1896. Ordered for IN filed his petition in the circuit court of the Mr. Richard L. Maury for plaintiff in Mr. R. Taylor Scott, Attorney General of Virginia, for defendant in error on submission of case. 26, 1882 (Acts 1881-82, p. 37), the assembly passed a further act declaring that the tax collectors should receive in payment of taxes and other dues “gold, silver, United States Treasury notes, national bank currency, and nothing else," with a provision for suit by one claiming that such exaction was illegal. The act contained this proviso: "There shall be no other remedy in any case of the collection of revenue, or the attempt to collect rev-reversed by the supreme court of appeals of enue illegally, or the attempt to collect revenue in funds only receivable by said officers, under this law, the same being other and different funds than the taxpayer may tender or claim the right to pay, than such as are herein provided; and no writ for the prevention of any revenue claim, or to hinder or delay the collection of the same, shall in anywise issue, either injunction, supersedeas, mandamus, prohibition, or any other writ or process whatever; but in all cases if for any reason any person shall claim that the revenue so collected of him was wrongfully or illegally collected, the remedy for such person shall be as above provided, and in no other manner." At the same session, on February 14, 1882, a new funding bill was passed containing a proposition to the bondholders (Acts 188182, p. 88); and again at the same session, on April 7, 1882, an act was passed amending the Code of Virginia in respect to mandamus, which provided "that no writ of mandamus, prohibition, or any other summary process whatever, shall issue in any [105]case of the collection, or attempt to collect revenue, or to compel the collecting officers to receive anything in payment of taxes other than as provided in chapter forty-one, acts of assembly, approved January twenty-six, eighteen hundred and eighty-two, or in any case arising out of the collection of revenue in which the applicant for the writ or process has any other remedy adequate for the protection and enforcement of his individual right, claim, and demand, if just." (Acts 1881-82, p. 342.) Messrs. Richard L. Maury, William A. Maury, and M. F. Maury for plaintiff in error on oral argument. Messrs. A. J. Montague, Henry R. Pollard, and R. Taylor Scort, Attorney General of Virginia, for defendant in error on oral argument. *Mr. Justice Brewer delivered the opin-[106] ion of the court: more Perhaps no litigation has been tion of Virginia. That Hartman Antoni v. Greenhow, 107 U. S. 769 [27: 468]; Virginia Coupon Cases, 114 U. S. 269 [29: 185]; Poindexter v. Greenhow, 114 U. S: 270 [29: 185]; Carter v. Greenhow, 114 U. S. 322 [29: 204]; Moore v. Greenhow, On March 15, 1884, the general assembly 114 U. S. 325 [29: 205]; Barry v. Ed114 U. S. 340 [29: 240]; Marye v. Parsons, passed a general act in reference to the assessment of taxes on persons, property, and munds, 116 U. S. 550 [29: 729]; Chaffin incomes (Acts 1883-84, p. 561), the one hun- V. Taylor, 116 U. S. 571 [29: 728[; Royall v. dred and thirteenth section (p. 603) of Virginia, 116 U. S. 572 [29: 735]; Royall v. which required that all school taxes should Virginia, 121 U. S. 102 [30: 883]; Sands be paid "only in lawful money of the United Edmunds, 116 U. S. 585 [29: 739]; States." On January 26, 1886 (Acts 1885-86, P. 37), an act was passed providing that in a suit in respect to coupons tendered in payment of taxes, no expert testimony should be receivable, and that the bonds from which the coupons were cut should be produced, it demanded, as a condition precedent to the right of recovery. Section 399 of "the Code of Virginia," which was a revision and re-enactment of the general statutes of the state, adopted May 16, 1887, reads: "It shall not be lawful for any officer charged with the collection of taxes, debts, or other demands of the state to receive in payment thereof anything else than gold or silver coin, United States Treasury notes, or national bank notes." On May 29, 1892, the plaintiff in error Stewart v. Virginia, 117 U. S. 612 [29: 304]. For the first time in the history of this litigation has any appellate court, either state or Federal, distinctly ruled that the coupon provision of the act of 1871 was void. After the passage of the act of March 7, paid in cash, the case of Antoni v. Wright 1872, which in terms required all taxes to be came before the court of appeals of Virginia (22 Gratt. 833), and on December 13, 1872, was decided. Elaborate opinions were filed, and the court held the act of 1871 valid and the act of 1872 void, as violating the contract embraced in the coupon provision of the act of 1871. This decision was reaffirmed in Wise Bros. v. Rogers, 24 Gratt.[107] 169, decided December 17, 1873; Clarke v. Tyler, 30 Gratt. 135, decided April 4, 1878, | payment of taxes in cash only was uncon- We are advised by the opinion of the court of appeals of Virginia, in 22 Gratt. 833, that the debt-two thirds of which was proposed to be refunded and most of which was, in fact, refunded-amounted to $40,000,000 of principal. These refunding bonds, amounting to many millions of dollars, have passed into the markets of the world, and have so passed accredited, not merely by the action of the general assembly of the state of Virginia, but by the repeated decisions of her highest court, as well as of this court, for substantially a quarter of a century, to the effect that such coupon provision was constitutional and binding. Now, at the end of twenty-seven years from the passage of the act, we are asked to hold that this guaranty of value, so fortified as it has been, was never of any validity, that the decisions to that effect are of no force and that all the transactions which have been had based thereon rested upon nothing. Such a result is so startling[109] that it at least compels more than ordinary In this court the decisions have been uniform and positive in favor of the validity of the act of 1871. There has been no dissonance in the declarations, from the first case, Hartman v. Greenhow, 102 U. S. 672, 679 [26: 271, 275], decided at the October term, 1880, in which, referring to this act, the court said, by Mr. Justice Field: "A contract was thus consummated between the state and the holders of the new bonds, and the holders of the coupons, from the obligations of which she could not, without their consent, release herself by any subsequent legislation. She thus bound herself, not only to pay the bonds when they became due, but to receive the interest coupons from the bearer at and after their maturity, to their full amount, for any taxes or dues by him to the state. This receivability of the coupons for such taxes and dues was written on their face, and accompanied them into whatever hands they passed. It constituted their chief value, and was the main consideration consideration. offered to the holders of the old bonds to surrender them and accept new bonds for two thirds of their amount,"-to McGahey v. Virginia, 135 U. S. 662, 668 [34: 304, 306], decided at the October term, 1889, in which Mr. Justice Bradley, delivering the unanimous opinion of the court, observed: "We have no hesitation in saying that the act of 1871 was a valid act, and that it did and does constitute a contract betweeen the state and the holders of the bonds issued under it, and that the holders of the coupons of said bonds, whether still attached thereto or separated therefrom, are entitled, by a solemn engagement of the state, to use them in payment of state taxes and public [108]dues. *This was determined in Hartman v. Greenhow, 102 U. S. 672 [26: 271], decided in January, 1881; in Antoni v. Greenhow, 107 U. S. 769 [27: 468], decided in March, 1883; in the Virginia Coupon Cases, 114 U. Secondly. It is insisted that whatever S. 269 [29: 185], decided in April, 1885, may be our own opinions upon the case, we and in all the cases on the subject that have are to take the construction placed by the come before this court for adjudication. court of appeals of Virginia upon the act This question, therefore, may be considered as the law of that state. While it is unas foreclosed and no longer open for consid-doubtedly the general rule of this court to eration. It may be laid down as undoubted accept the construction placed by the courts law that the lawful owner of any such coupons has the right to tender the same after maturity in absolute payment of all taxes, debts, dues, and demands due from him to the state." Since the decision of the court of appeals of Virginia, in Antoni v. Wright, 22 Gratt. 833, that the act of 1872, providing for the We pass, therefore, to a consideration of the specific questions presented in this record. First. It is insisted that the decision of the court of appeals was right, and that the coupon provision was void. It were a waste of time to repeat all the arguments which have been heretofore presented, and we content ourselves with reiterating that which was said by Mr. Justice Bradley speaking for the entire court, in McGahey V. Virginia, 135 U. S. 662, 668 [34: 304, 306]: "This question, therefore, may be considered as foreclosed and no longer open for consideration. It may be laid down as undoubted law that the lawful owner of any such coupons has the right to tender the same after maturity in absolute payment of all taxes, debts, dues, and demands due from him to the state." vet one exception to this rule has always It may be well to here quote the language with which Mr. Justice Bradley concludes his general review of the prior litigation, and which in its last paragraph shows that this very matter was considered and determined, pages 684, 685 [34: 312.1: "Without committing ourselves to all that has been said, or even all that may have been adjudged, in the preceding cases that have come before the court on the subject, we think it clear that the following propositions have been established: "First, that the provisions of the act of 1871 constitute a contract between the state of Virginia and the lawful holders of the bonds and coupons issued under and in pursuance of said statute; "Second, that the various acts of the as restraining the use of said coupons for the payment of taxes and other dues to the state, and imposing impediments and obstructions to that use, and to the proceedings instituted for establishing their genuineness, do in many respects materially impair the obligation of that contract, and cannot be held to be valid or binding in so far as they have that effect; been denied, nor is it now, that the Supreme | it could be enforced in respect to general Court of the United States has an appellate taxes. power to revise the judgment of the supreme court of a state, whenever such a court shall adjudge that not to be a contract which has been alleged, in the forms of legal proceedings, by a litigant, to be one, within the meaning of that clause of the Constitution of the United States which inhibits the states from passing any law impairing the obligation of contracts. Of what use would the appellate power be to the litigant who feels himself aggrieved by some particular state legislation, if this court could not decide, independently of all adjudication by the supreme court of a state, whether or not [110]the phraseology of the instrument in controversy was expressive of a contract and within the protection of the Constitution of the United States, and that its obligation should be enforced, not-sembly of Virginia passed for the purpose of withstanding a contrary conclusion by the supreme court of a state? It never was intended, and cannot be sustained by any course of reasoning, that this court should, or could with fidelity to the Constitution of the United States, follow the construction of the supreme court of a state in such a matter, when it entertained a different opinion." The doctrine thus announced has been uniformly followed. Bridge Proprietors v. Hoboken Land & Improv. Co. 1 Wall. 116, 145 [17: 571, 576]; Wright v. Nagle, 101 U. S. 791,793 [25:921,922]; McGahey v. Virginia, 135 U. S. 665, 667 [34: 305, 306]; in which, in reference to this very contract, it was said: "In ordinary cases the decision of the highest court of a state with regard to the validity of one of its statutes would be binding upon this court; but where the question raised is, whether a contract has or has not been made, the obligation of which is alleged to have been impaired by legislative action, it is the prerogative of this court under the Constitution of the United States and the acts of Congress relating to writs of error to the judgments of state courts, to inquire and judge for itself with regard to the making of such contract, whatever may be the views or decisions of the state courts in relation thereto." See also Douglas v. Kentucky, 168 U. S. 488, 501 [42: 553, 557], and cases cited therein. Thirdly. It is urged that our last decision, that in McGahey v. Virginia, supra, logically leads to the conclusion that the whole coupon contract was void, and that the court of appeals of Virginia rightly interpreted the scope of that decision when it so held. The argument of that court is that because the Constitution of Virginia compels the payment of certain taxes in cash, and that therefore the coupon contract cannot be enforced as against those taxes, the whole contract must fail, the partial failure being a vice which enters into and destroys the entire contract. But the court overlooks that which was in fact decided in the eight cases reported under the title of McGahey v. Virginia, for while in two of those cases it was held that the coupon contract could not [111] be enforced against certain specific taxes and dues, it was in others as distinctly held that 172 U. S. U. S., Book 43. 25 "Third, that no proceedings can be instituted by any holder of said bonds or coupons against the commonwealth of Virginia, either directly by suit against the commonwealth by name, or indirectly against her executive officers to control them in the exercise of their official functions as agents of the state; "Fourth, that any lawful holder of the tax-receivable coupons of the state issued under the act of 1871 or the subsequent act of 1879, who tenders such coupons in payment of taxes, debts, dues, and demands due from him to the state, and continues to hold himseif ready to tender the same in payment thereof, is entitled to be free from molestation in person or goods on account of such taxes, debts, dues, or demands, and may vindicate such right in all lawful modes of redressby suit to recover his property, by suit against the officer to recover damages for taking it, by injunction to *prevent such tak-[112] ing where it would be attended with irremediable injury, or by a defense to a suit brought against him for his taxes or the other claims standing against him. No conclusion short of this can be legitimately drawn from the series of decisions which we have above reviewed, without wholly overruling that rendered in the Coupon Cases and disregarding many of the rulings in other cases, which we should be very reluctant to do. To the extent here announced we feel bound to yield to the authority of the prior decisions of this court, whatever may have been the former views of any member of the court. "There may be exceptional cases of taxes, debts, dues, and demands due to the state which cannot be brought within the operation of the rights secured to the holders of the bonds and coupons issued under the acts of 1871 and 1879. When such cases occur 385 they will have to be disposed of according to their own circumstances and conditions." It promise is void. When, however, for a legal consideration, a party undertakes to do one Neither is the argument a sound one. or more acts, and some of them are unlawignores the difference between the statute ful, the contract is good for so much as is and the contract, and confuses the two en- lawful and void for the residue. Whenever tirely distinct matters of construction and the unlawful part of the contract can be sepvalidity. The statute precedes the contract. arated from the rest it will be rejected and Its scope and meaning must be determined the remainder established. But this cannot before any question will arise as to the va- be done when one of two or more consideralidity of the contract which it authorizes. It tions is unlawful, whether the promise be is elementary law that every statute is to to do one lawful act, or two or more acts be read in the light of the Constitution. How- part of which are unlawful, *because the[114] ever broad and general its language, it can- whole consideration is the basis of the whole not be interpreted as extending beyond promise. The parts are inseparable. Withose matters which it was within the con- doe v. Webb, 20 Ohio St. 431 [5 Am. Rep. stitutional power of the legislature to reach. 664], citing Metcalf on Contracts, 246; AdIt is the same rule which obtains in the in-dison on Contracts, 905; Chitty on Contracts, terpretation of any private contract between 730; 1 Parsons on Contracts, 456; 1 Parsons individuals. That, whatever may be its on Notes and Bills, 217; Story on Prom. words, is always to be construed in the light Notes, section 190; Byles on Bills, 111; of the statute; of the law then in force; of Chitty on Bills, 94. the circumstances and conditions of the parties. So, although general language was in troduced into the statute of 1871, it is not to be read as reaching to matters in respect to which the legislature had no constitutional power, but only as to those matters within its control. And if there were, as it seems there were, certain special taxes and dues which under the existing provisions of the state Constitution could not be affected by [113]legislative action, the statute is to be read as though it in terms excluded them from its operation. Indeed, the court of appeals does not follow what it calls the logic of the decision in McGahey v. Virginia to its necessary result. The scope of its argument is that if a part of the consideration be illegal, the whole contract fails. But the promise on the part of the state, written into these coupons and authorized by the act of 1871, was a promise to pay so much money and to receive such promise in satisfaction of taxes. In refer ence to this, the court of appeals, in its opinion in this case, uses this language: "We do not assail that act as unconstitutional as an entirety. We simply hold that the coupon feature of the act, the coupon contract, which is readily separable from the rest of the act, is repugnant to sections 7 and 8 of the Constitution of Virginia, and is therefore an illegal contract. The validity of the bonds issued under and by authority of said acts of March 30, 1871, and March 28, 1879, is not denied; nor is it denied that the bondholders are entitled to the interest on the bonds, to be collected in the ordinary way; but we do deny that it can be collected through the medium of the illegal coupon, which has been most aptly designated the 'cut worm of the treasury.' 90 Va. 597606. Further, the authorities to which it refers make against the conclusion which it reaches. Thus, at the end of its argument, it quotes as a principal authority the following: "The concurrent doctrine of the text-books on the law of contracts is that if one of two considerations of a promise be void merely, the other will support the promise; but that if one of two considerations be unlawful the "And in the same case it is said: 'Whilst a partial want or failure of consideration avoids a bill or note only pro tanto, illegality in respect to a part of the consideration avoids it in toto. The reason of this distinction is said to be founded, partly at least, on grounds of public policy, and partly on the technical notion that the security is entire and cannot be apportioned; and it has been said with much force, that where parties have woven a web of fraud or wrong it is no part of the duty of courts of justice to unravel the threads and separate the sound from the unsound;' citing Story on Prom. Notes, and Byles on Kills, supra, and then adds: 'And, in general, it makes no difference as to the effect whether the illegality be at common law or by statute.'" This decision declares that when the consideration is illegal, the promise fails; and to like effect are the other authorities cited. But in the case at bar there is no illegality in the consideration. That was furnished by the bondholder in the old bond, and that bond was the sole consideration. It is no where suggested that there was any vice or |