lI'EDERAL RJi)l'ORTER, vol. ,.
63. ,
PARSONS v. SLAUGHTER, City Treasurer. ",
(Circuit Court, E. D. 'Virginia. 'October 10, 1894.) , ' ,
LAw.,....
OF CONTlUOTS-TAX-RECEIVABLE
CO'O"
"OOtipons from bonds issued under Acts Va. March '80, 1871, and March , 28. lSl/9. bearing on their face the contract of the state that they should be receIved in payment of taxes, etc., are valid obligations of the state. for. taxel1 spd dUel1 tober, ',and when a taxpayer, in person or b,: agent, tenders such coupons In parment of taxes due by him, atilt keeps his tender g?od, he will be considered to have paid the taxes, and wlU be protected In person and property from any effort of the enforce the tI;Lx. 2. SAlttE\;-rSPIT AGAINST STAfflll OFFJOER.
tllat wheria ,state :officer co.mmits an overt. act, wrongful to the rights,and proPerty of a citizen, he takes the l'eSpOli\!iibUityof the act, andcarinot justify it by the autho'tity of the state,:.: 1I.,dercolor of,. an unconstitutionaJ Istatute; but the court will not iJ:ltel'pose to· compel· offlcer to do, an. act for the state which be made to do ,Ii she werei:luable. , .,,'
8.
SAlttE. ""
Complainant alleged tbl.\t he. owned $50,000 of tax-reCeIvable coupons of't!le'state of Virginia; that the state refused to pay such coupons; thst:aU remedies for their collection had been taken away, so that theYr,couId 9nly be in payment of taxes; that he had contracted with, taxPayers' of to ,pay their. taxes, with his coupons, for which'they were to· pay him. ,"on delivery. 'of receipted tax bills; that he had tendered to defendant, the officer appointed to collect such taxes, thea.mount ,of the taxes in coupons, and demanded receipt of bills for same; defendant refused to accept the tender or recognize the validltyof the coupons, and thr,eatened to treat the taxpayers as delinquent; tllat by such refusal complainant would lose the benefit of similar contractS with taxpayers, which· they had been accustomed to make and would "cGntlnue to make but for such refusal, and prayed for an injunction . defendant, from refusing to accept such coupons. Held, thRtthe suit was in fact ,one to compel the state to perform its contrl(.Ct, fl.bd would not lie in.favor of R taxpayer, who had made a tender' dlcoupons; that complainant, whether regarded as agent of the taxPayers, as having sold the coupons at the time of ,the tender, or as owning alid in control of them until 'delivery of receip1;ed tax bills, was in, no ,bet1;er position,. and that the bill should be diltmissed. the wrong>fUlrefusal of defendant tOl'eeognize the tender, he might
.. SAME-A,CTXQN...FOR DAlttAGES.
Itseems,llowever, that for any injUry suffered by complainant by
. recover damages in an action at law.
ure-r of the city of l'etersbqrg, Va., to cOmpel the acceptance of the
This
118uit by Edwin I'arsous against O. A. Slaughter, treas·
Par$()ns, a of the state 0f New, Yorl'Cl,,1iledhis biUL.Qf. c()IDplaint in this court, stating substantially,these facts':'Thatbe,lsthe.'.owner and holder, to the amount of $50,000, of.cQupona, .issue(bby,the state of Virginia by authority of "An act to provide for the funding and
::--}t>:, f, n
PARSONS
v.
SLAUGHTER.
877
payment of the public debt, approved March 30th, 1871," and of another similar act "to provide a plan of settlement of the public debt, appl'oved March 28th, 1879;" the coupons having been cut from bonds issued under those acts. That these coupons are all genuine, and past maturity, and bear on their face the contract of the state of Virginia that they should be received in payment of all taxes, dues, and demands due said state. That the state of Virginia refuses to pay these coupons as therein provided, and tllat all reme<}.ies heretofore existing whereby the owners were afforded means of collecting them have been taken away by the repeal of the laws granting them; so that now there is no way for or otherwise utilidng these coupons save that afforded by their legal-tender quality for the payment of taxes. That, confiding in his rights afforded by these coupons, he has made a contract "1ith several hundred of the taxpayers of Virginia to pay their taxes assessed for the support of the government with his said coupons to the full amount, and they have agreed to pay him for so doing upon the delivery to them before November 30th next, but not otherwise, of their bills for said taxes duly receipted. These contracts exceed $20,000, which is the value of the tax contracts to him. He accompanies his bill with a list of these taxpayers. That in accordance with said contract, and in performance thereof, on the 16th of August, 1894, he tendered to C. A. Slaughter, treasurer of the city of Petersburg, the officer appointed by law to collect said taxes, for eaclt and every of the taxpayers in said list, the several amounts of their said taxes as in said list appears, in s'aid coupons in payment thereof. That he waived any return when the amount in in coupons exceeded the tax, and offered to pay the money when this amount was less than the tax. That he then demanded the receipt of the bills for taxes. That he has always held, and still holds, himself ready to fulfill his tender. That at the same time he notified the treasurer of his duties under the law as settled by the supreme court of the United States, called upon him to obey and perform them, and offered to provide the treasurer, at his own expense, with able counsel to defend his action, if he complied with the tender. But that the said Slaughter, the treasurer, refused to obey and to recognize the validity of the coupons and of the tender, and to give a receipt of the demand, and declared that he would consider and treat said taxpayers delinquent unless the tax was paid in money. That there are other taxpayers for whom he eould and would have made similar tenders, but Slaughter having adopted a uniform rule in all such cases, he was deterred, and did not tender the coupons. That for years, according to a method heretofore adopted by the state of Virginia, but now abandoned by her, the taxpayers of Petersburg have been accustomed to contract with him to pay their taxes in his coupons to the extent of nearly $10,000, and that they would continue to do so but for this attitude now assumed by Slaughter, the treasurer. That if Slaughter be not compelled to abandon this attitute, in8Jly of the taxpayers who would otherwise contract with him will, for that reason alone, be deterred from so contracting, and the complainant be deprived irre-
878
FEDERAL.REl'IOR'Ji'ER,
vol. £i3.
ll'i(Ml'bly,ijl'therenJoyment 6£ his:Jights'and 'profits uhder the con· stitutionrl l1ud laws ofi the United. States. That the only reason for of that the tender was made in; c6Up6:fi8,and to intimidate and induce the fuxpayers to' withdraw-from their contract to revokletheir authority to him:;l·Undrthat heaccompHshes:this by treating-them delinquent if :their coupons) 'and threatened ithem with all the conse'9utmbe,g, t resulting therefllQDJ,.r Thus a multiplicity of suits may be caused if, the taXpayers'iare::.uo.t deterred ; and, if they are deterred) great.:injllry willbedailynmd hourly.. done to the com· prayed·:aniiujubdion directed"tothe treasurer, fOl'bidding;ahd restrairlingh:im/f1'Qmirefusing to accept the coupons as tenael'edl from receipted in full on such tendell;: When! thel>ill· was presented to the court a temporary restraining oraer,was. gt'anted' with a rule against the defMdant to show <ltliusewhy 'itbe:uotl made permanent The deatid has 'liidem:urrer on various .grounds to , . 'The 'lilligationover ithe debt of of Virginia created undel' the aets referred to' in·thebill has: the attention of the supreme: .ctlbrtof the ,Uniied The result of this 'litigation is stamdby.the in MeGahey v.Virginia, t
. to JJ{ltlial has been said,or even all tliil:t may 11ave beeji' adj,'ttdged, in: . the) preCeding cases that '. have come Defore' the.: 'on' the we' tlJin"ll: it:. clear that the, following' propo. have ·been I\'lrst. ;TMt,the.provisionsof the act of f<Jt' 'the .purpose .of relsth:fMning the' use" of tha, said coupons for '.the paymen t
. Second; to
ThlJ,t"fh,(varibus
assembly'of
p!U3sed
othEli' . dUes'to itlleISQI,oo,.!1Ud; imposIng and 1:l1l1t t9 for establ.ishing their gMllineness, do )uIllany,tespects impaIr the obligatiOn of that c6litraet,andtianno't',be' to be vaItd"6t' binding in so far !U3 they hil.v.e ',that effect. 'l'hltld,': That ,noproceedlngs can be instituted by any said com,mouwealth. of Virginia, directly by suit ,against the by name, or indirectly b,er ex.ecutiflii".dffi. tocontfl)f.'thE!.m in the ex.erc.ise of mel1" . offichtl, tunctio-ns as, agents' of the state. That any laWfUl holder of' tax-receivable cotll)cmsof the state, issue(li under the act of 1871 01" the tM act of :1819-" who tendeI1$i coupons in payment of taxes, :to tI;1e state, andcontinues to 1J01p. ready the Sltllle. III paYII?ent ther;eof, is. entitled to .from molestatiOn in person 01' goOds on account 'of SUch tkXes, debts, duesj'bi.' demands, anlFm:ay vindicate such· right in aU lawful modes of redrlllJal by.suit to 're¢O'veJ: his prope!itN"'by suit against the officer to a, sUit' l;>rought agaijJ.st· him for 'his '01" the other clahhs standing aga.itiil1tbtnt" ""':.: ' .. ' ", ' :! Ii:·... '· : t ,'[1; i 11; . , ,\,.':'\ f',' " . ..' .. , '! /L.I ,1,1 I'
of: andjtiJs equally thes(!: g01l'!)(mS
qe
:.'
.'
these,;:ouP9:q.S .are not .fol': taxes and wpep. a taxpay(!r ot that ,du£!. by lUm, and
tJ. stAUGliTE:R.
879
preserves. thi,s attitude, so as to make good his tender at any and times, he wiil thenceforth, in law and in fact, be considered to have paid the taxes,and will be protected in person and property fr()m ·any effort on the part of any state officer to enforce the tax. That is to say, the tender must either be made in person or by authority of the taxpayer for taxes due by him. The protection given by the court is given to the taxpayer. It will be observed that this tection is of a distinctive character. When the taxpayer has made his tender, producing his coupons, he has fulfilled all that is required of him, and in law the tax is paid. He has nothing more to do except to keep his coupons ready for delivery. If, after tl:/.is, any step.be taken looking to the issue of tax execution or distresS warrant, or of beginning of suit against him or his property to Gollect the tax, upon reporting his case to the court it will restrain such act. Can he go further than this? Will a bill lie to compel the treasv.rer to receive coupons,-that is to say, specifically to perform tlj.e contract set, forth in them? It is not the contract of the treasurer; it is the contract of the state of Virginia; and the only reason why it is presented to him for performance is that he is an officer of the state of Virginia. Such a bill would be, in fact, one to compel the state to perform its contract; .and such a bill would not lie in tb.is court. · .Whether a suit against the officers of a state is or is not a suit against the state itself is a question which has long vexed the supreme court' of the United States. The question is ably and e\aborately discussed by that court in Pennoyer v. McConnaughy, 140 U. S.l,11 Sup. Ct. 699, Mr. Justice Lamar delivering the opinion. His analysis of the dec4lions, and his conclusion as to the result of them, been reviewed and confirmed in Reagan v. Trust Co., 154 U. S. 388, 14 Sup. Ct. 1047. This case seems to make this distinction: 'fhat when a state officer commits some overt act wrongful in its ·character to the rights and property of a citizen, he takes upon him· self the responsibility of the act, and cannot justify it by the authority of the state under color of an unconstitutional statute. But if it be a suit not to restrain him from acting, but to make him do an act for the state which the state could be made to do were she sua· ble, then the suit is really against the state. So, if this were a suit by a taxpayer who had tendered coupons for his taxes, and now asked this court, in aid of the contract in the coupon, to compel the treasurer to give him a receipt in full therefor, the suit not be one restraining the treasurer from an act of trespass upon his property, threatened or committed, but would be a proceeding Seeking the specific performance by him of a contract made by his principal with the taxpayer, which aid this court could not grant. The language of Mr. Justice Bradley in Virginia Coupon Cases, 114 U. S. 335, 5 Sup. at. 965, is not inapplicable: "But then it wlll be asked, has the citizen no redress against the tional acts or laws of a state? Certainly b.e has. There is no difficultr. on the subject. Whenever his life, liberty, or property is threatened, assailed, or invaded by unconstitutional acts, or by any attempt to execute unconstitutionallaws, he may defend himself by any proper way by habeas corpua, by
880 {;oj
FEDER,ALREPO:QtEB',' vol.
63.
a.ctlons hIs behalf, by ,injunction, by ·.· , these m¢1;hOds'Q( ',iWress suitable to his case Is to Inm.A. cItizen. Clinnot in any way be ha:ra'ased, injured, or destroyed by unconstitutional1a:wS{Without having some legal means of resistance or redress. But this is state or its otficersmove, agalnst him. '.rhe right to all these and redress unc0:t:tstitutionaJ oPPl'?ssion. and thing from ilie righttQ coerce a state lllto a fulfillment of Its cop-tracts. The one Is an Indefeasible rigpt, a right which can· not be taken other Is never 8, right, but may, or may not, be conceded by the state, ,and, if conceded, may'1m, conceded on such terms as the state chooses.to lJ:X!.pQli!e."
Is the complilinant in a better position than the taxpayer? He is not a taxpaye,l', and no property of is liable for taxes, or is exposed to any mode of a.ttack., His case is this: He has made a contract with the taxpayel'S that he will tender his coupons in payment of their taxes, andtnat when he prese'nts to each of them a receipt in full of histax then,and not before, the taxpayer will pay him for the c()uponssoused. This contract maybe either a sale of the coupons to the taking effect at the -q.me of the tender, the price paytax bill, or it may be a sale able upop. t1,J.e delivery of the of the C0tl-POllS lDade and terminated at the time of the, delivery of .theryceipted t:axbiIl. If it be the first, and the property in the cou· pons passed to the taxpayer at the date of the tender, then the com· plainant, parting with the coupoJ1.S, lostall of his interest in the contract, and, complain that,,!twM not performed. Marye y.Parsons, 114, U. S. 329,5 Sup. Of, 982, 962. If, however, under .contract, he wall to remain the owner ofthe coupons/and in con.trol of theUl, up to and until the delivery of the tax bill receipted, tllen he has no standing in this court, for "it is only when in the of taxPliyers or other,debtors coupons are receivable for taxes ltI1d. debts due the state." Virginia Coupon Cases, S. 329, 5 epp.Ct 934. 'If has be¢n earnestly urged that the act of the complainant in making tender for all oftb,.ese taxpayers was lawful act. Of this there can be no doubt. " Bennett v. IIunter,9 Wall. 326. Anyone can ten.der orpay the tax; of another; and if, either by act or actender is ratified, or the payment itself is good, the person. tep.'derip.g the payment acts ,as ,his agent. Mr. Parsons" in tenderin.gthese may have been the agent of each one of the taxpayers; but the refusaLto receive them worked.a wrong to his principals, under whose he acted. ' ,As taxpayers, they were to make It tender,a':Qd only be'cause they were taxpayers. The wrong was done to.tMfu,as taxpayers, but no wrong by this refusal was done to him, their agent. The refusal inyolved him in responsibility. ,'tt is saig, however, that tb.ecomplainant owns inlmy of these coupons, hehas,lDade many, contracts for disposing of them, And oPpor:tllnity,' of 'many more, and that the refusal of the treasurer to'recognize the'tender defeats these' contracts. ,If this ,be so, and if the defendant'willfully or wrongfully defeated any right of the complainant, there is no obstacle to his recovery in an action at lawfQr'the wrong,a single action, in which,"each reful3al coWd be settl-pas sustaining
his
IIUBBELL 'V. LANKENAU.
881
the· cause of action. He can have no remedy in this· court. It is ordered, adjudged, and decreed that the restraining order or injunction heretofore granted be dissolved, and the complaint dismissed. HUBBELL v. LANKENAU. (Circuit Court, E. D. Pennsylvania. October 23, 1894.) No. 23. 1. EQUITY PRACTICE-FoRM OF DECREE.
An opinion filed dismissing a bill, with costs. without a formal decree attached thereto, becomes, in effect, such a decree upon the acquiescence of complainant for a pel'iod of nearly 12 years. A bill of revivor will be stricken from the record, on motion, after the lapse of 12 years of inaction from the date of the last proceeding. It is the duty of the party desiring the allowance of an appeal to prepa.re the form of a decree, and not of the court or the adverse party.
2.
SAME-Bu,L OF REVIVOR-LACHES.
SAME-ENTRY OF DECREE.
This was a motion to strike a bill of revivor from the record. The original suit was begun on January 4, 1881, by the filing of a bill in equity. On January 23,1882, an opinion was filed by BUTLER, District Judge (}fcKENNAN, Circuit Judge, concurring) dismissing the bill, with costs. There was no formal decree made. The next proceeding in the case was on October 12, 1894, when the bill of revivor in question was filed. Samuel Dickson, for the motion, advanced the following reasons upon argument before the court: (1) Because, at the time of filing the .bill of revivor·. no suit was pending, the original suit having been settled and ended by the filing of an opinion and the entry upon the docket that the suit was dismissed. with costs. (2) Because the plaintiff had been guilty of unreasonable laches. (3) Hecause the claim set forth in the original bill of complaint would have been barred by the statute of limitations within six years from the date of the last transaction. If the plaintiff had a new cause of action at the time of filing the opinion, .it would have been barred within six years from that date, and no amendment or bill of revivor can be filed introducing a new cause of action. (4) Because the plaintiff had his attention called to the state of the record within less than two years from the filing of the opinion, and, having acquiesced therein, should not now to appeal from the final decree of the court. (5) Because a court of equity considers that done which ought to have been done, and disr<>gards purely formal mistakes or omissions, and the declaration in the opinion filed of record, and in the decree upon the docket, constitutes, in substance, a finl11 decree. (6) Because the formula prescribed in the rule of court for the formal decree was only intended to obviate the necessity. of repeating in the body of the decree the pleadings already filed of record. The entry upon the docket is substantially equivalent, and, having been acquiesced in for more than double the period of time necessary to bar any claim at law, it is not now competent for the plaintiff to avoid its effect.
Chas. C. Townsend, J. B. Townsend, Jr., and F. P. Dewees, opposed. The only entry upon the docket Is of an opinion filed dismissIng the bIll. with costs. It is not even an order, and far less a decl'ee. Even if a
v.63F.no.7-56