Other suits were brought, involving questions not decided by the Supreme Court of the United States in Antoni v. Greenhow, supra. One of these suits, brought in the Hustings Court of the city of Richmond by Poindexter against Greenhow, was an action of detinue for personal property, distrained by the defendant for delinquent taxes, in the payment of which the plaintiff had duly tendered coupons cut from bonds issued by the State of Virginia under the Funding Act of March 30, 1871. The Hustings Court decided the suit in favor of the defendant; and since that court was the highest court of the State to which the cause could be taken, and since the validity of a State law was drawn in question on the ground of its incompatibility with the Constitution of the United States, the case was, by writ of error, removed to the Supreme Court of the United States. This court, in the opinion delivered by Mr. Justice Matthews in Poindexter v. Greenhow, 5 Sup. Ct. Rep. 903, considered the merits of this case at large, and laid down principles decisive not only of this case, but of several other cases before the court, coming from the State of Virginia, and relating to the coupon question.

The starting point of the deliverance by Mr. Justice Matthews is the fundamental fact that Virginia had, under the Funding Act of 1871, entered into a contract with the holders of the bonds and annexed coupons issued in pursuance of this act, which contract made the coupons "receivable at and after maturity for all taxes, debts, dues and demands due the State," and constituted a self-executing remedy in the hands of the tax payer, who in virtue of the contract had the right to tender them in payment of his taxes, just as if they were money, and who, having made such a tender, had in legal effect paid his taxes, so far as any subsequent proceedings to enforce payment are concerned. This contract being made, cannot by the State be set aside or repealed in consistency with the Constitution of the United States; and any law subsequently enacted by the Legislature of Virginia, whose effect is to impair or violate the obligation of this contract, is not law at all, and can furnish no immunity or protection to a State officer who acts under it, since it is absolutely without any authority whatThis sweeps away the act of January 26, 1882, also the amendatory act of March 13, 1884, and at least so much of the act of January 14, 1882, as requires all taxes due to the State to be paid in coin, legal tender notes, or National bank notes. Such legislation was held by the court to impair the obligation of the contract with the coupon holder, and hence to be null and void.

ever.

The legal consequence of these doctrines, as stated by Mr. Justice Matthews, is that an action or suit brought by a tax payer, who has duly tendered the tax. receivable coupons in payment of his taxes, against the person who, under the color of office as a tax collector, and acting in the enforcement of a void law passed by the Legislature of the State, and after having refused to receive the coupons so tendered, proceeds to enforce the collection of such taxes by the seizure and sale of the property of the plaintiff, is an action or suit against him personally as a wrong-doer, and not against the State, within the meaning of the Eleventh. Amendment to the Constitution of the United States; and further, that the defendant tax collector, being thus sued as a wrong-doer, and seeking to substitute the State in his place, and justify his action by its authority, cannot rest on the bare assertion of such a defense, but must establish it by producing a valid law of the State which constitutes his commission as its agent and a warrant for his act. This position was taken in answer to the argument that a suit against the tax collector is necessarily a suit against the State of Virginia, and therefore excluded by the Eleventh

Amendment to the Constitution, which was urged by counsel on one side, and also by the members of the court who dissented from the opinion of the major. ity.

The position is by no means a new doctrine in the history of the Supreme Court of the United States. As remarked by Mr. Justice Matthews, it has been repeatedly held by that court "that whenever, in a controversy between parties to a suit, of which these [the Federal] courts have jurisdiction, the question arises upon the validity of law by a State impairing the obligation of its contract, the jurisdiction is not thereby ousted, but must be exercised with whatever legal consequences to the rights of the litigants may be result of the determination." Fletcher v. Peck, 6 Cranch, 87; New Jersey v. Wilson, 7 id. 164; Green v. Biddle, 8 Wheat. 1, 84; Providence Bank v. Billings, 4 Pet. 514; Woodruff v. Trapnall, 10 How. 190; Jefferson Branch Bank v. Skelly, 1 Black, 436; aud Wolff v. New Or leans, 103 U. S. 358. These cases were decided after the adoption of the Eleventh Amendment.

The Supreme Court of the United States, in Osborn v. Bank of the United States, 9 Wheat. 738, held that although a State cannot in a Federal court be sued by a citizen of another State, and thus be made a defendant party on the record, an injunction would nevertheless lie from such a court against a State officer to prevent him from carrying into effect an unconstitu tional State law, and that the suit against Osborn, brought in a Circuit Court of the United States, was not a suit against the State of Ohio, of which State he was an officer, although the State was interested in the suit, and, through its Legislature, had enacted the law under which Osborn was acting. Chief Justice Marshall said in this case:

"If the State of Ohio could have been made a party defendant, it can scarcely be denied that this would have been a strong case for an injunction. The objection is that as the real party cannot be brought before the court a suit cannot be sustained against the agents of that party; and cases have been cited to show that a Court of Chancery will not make a decree unless all those who are substantially interested be made parties to the suit. This is certainly true where it is in the power of the plaintiff to make them parties; but if the person who is the real principal-the person who is the true source of the mischief, by whose power and for whose advantage it is donebe himself above the law, be exempt from all judicial process, it would be subversive of the best established principles to say that the laws could not afford the same remedies against the agent employed in doing the wrong which they would afford against him could his principal be joined in the suit."

The doctrines adopted in this case were reaffirmed in Davis v. Gray, 16 Wall. 203, to the following effect:

1. That a Circuit Court of the United States, in a proper case in equity, may enjoin a State officer from executing a State law in conflict with the Constitution or a statute of the United States, when such execution will violate the rights of the complainant.

2. That where a State is concerned the State should be made a party if it can be done, and that if this cannot be done, that is a sufficient reason for the omission to do it, and the case may proceed to a decree against her officers in all respects as if she were a party to the record.

3. That in deciding who are parties to the suit, the court will not look beyond the record, and that making a State officer a party does not make the State a party, although her law may prompt his action, and she may stand behind him as the real party in interest.

Mr. Justice Miller, in stating the opinion of the court

in Cunningham v. Macon & Bruns. R. Co., 109 U. S. 446, specified several classes of cases which had been decided by the court, and in regard to the second class said: "Another class of cases is where an individual is sued in tort for some act injurious to another in regard to person or property, to which his defense is that he acted under the orders of the government. In those cases he is not sued as or because he is the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defeuse he must show that his authority was sufficient in law to protect him." Mitchell v. Harmony, 13 How. 115; Bates v. Clark, 95 U. S. 204; Meigs v. McClung, 9 Crauch, 11; Wilcox v. Jackson, 13 Pet. 498; Brown v. Huger, 21 How. 305; and Grisar v. McDowell, 6 Wall. 363. These cases were referred to as embodying the principle stated.

ercise authority which it does not possess, and cannot therefore lawfully exercise. No State statute, however incompatible with the Constitution of the United States, could, upon any other principle, be, by a Federal court, prevented from being carried into effect by State officers; and no remedy in such a court would be available to the party whose rights might be invaded by the execution of such a statute.

The principles thus set forth by Mr. Justice Matthews at large in Poindexter v. Greenhow, were by the court applied as decisive in the case of White v. Greenhow, in that of Chaffin v. Taylor, and in that of Allen v. Baltimore & Ohio R. Co., 5 Sup. Ct. Rep. 923928. It was held in the last of these cases that the remedy by injunction to prevent the collection of taxes by distraint upon the rolling stock, machinery, cars, engines and other property of railroad corporations, after a tender of payment in tax-receivable coupons, is sanctioned by repeated decisions of the Supreme Court, and has become common and unquestioned practice in similar cases, where exemptions have been claimed in virtue of the Constitution of the United States, the ground of the jurisdiction being that there is no adequate remedy at law. The ruling of Judge Bond in that case, as reported in 17 Fed. Rep. 171, was affirmed.

In Marye v. Parsons, 5 Sup. Ct. Rep. 932, the court held, in the opinion delivered by Mr. Justice Matthews, that the contract right of a coupon holder under the Virginia act of March 30, 1871, whereby his coupons are receivable in payment of taxes, can be exercised only by a tax payer, and that a bill in equity for an injunction to restrain tax collectors from refusing to receive them wheu tendered in payment of taxes will not lie in behalf of a coupon holder who does not allege himself to be also a tax payer. Such a bill calls for a decree declaring merely an abstract right, and does not show any breach of the contract or other ground of relief.

To the same effect, so far as the principle is concerned, is the case of United States v. Lee, 106 U. S. 196. The original action in this case was one in ejectment, brought against the defendants, who were in possession of certain lands as officers of the United States, to which the plaintiff in the court below claimed the lawful title, of which title, as the Supreme Court held, he had not been legally dispossessed. It was conceded by the court that the United States could not, without their consent, be lawfully sued; and at the same time it was held that this doctrine has no application to officers and agents of the United States who, when as such holding for public uses possession of property, are sued therefor by a person claiming to be the owner thereof or entitled thereto, and that the lawfulness of that possession and the right or title of the United States to the property may by a court of competent jurisdiction be the subjectmatter of inquiry, and adjudged accordingly. The court affirmed the judgment giving the property to Lee, on the ground that although it was held by officers of the United States as such, who were the parties sued, still the lawful title was not in the United States, but in Lee, and hence these officers did not hold the property by any legal authority. United States v. Peters, 5 Cranch, 115; Meigs v. McClung's | Lessee, 9 id. 11; Wilcox v. Jackson, 13 Pet. 498; Georgia v. Madrazo, 1 id. 110; Osborn v. Bank of the United States, 9 Wheat. 738; Grisar v. McDowell, 6 Wall. 363; Brown v. Huger, 21 How. 305; Davis v. Gray, 16 Wall. 204; The Siren, 7 id. 152; and The Davis, 10 id. 15. These cases were cited by Mr. Justice Miller in stating and sustaining the opinion of the court.

It is not true then that a suit against a State officer is necessarily a suit against the State of which he is an officer within the meaning of the Eleventh Amendment to the Constitution. If being an officer of a State, he is acting under color of an unconstitutional State law, then in legal contemplation he is acting under no lawful authority whatever; and this makes him a wrong-doer and a trespasser, who may be sued, if in so doing he invades the rights of another party. This is precisely the predicament in which the deliverance of Mr. Justice Matthews, speaking for the court, places the tax collector of Virginia, who having refused to receive the tax-receivable coupons, proIvided for in the Funding Act of 1871, in discharge of the tax payer's taxes due to the State, proceeds to enforce payment by the seizure and sale of the tax payer's property. Such tax payer may bring an action against him as a trespasser acting without any authority of law; and in so doing he does not bring the action against the State of Virginia. Any other ruling would leave an aggrieved party without any remedy in a Federal court in any case in which a State government should, through its officers, assume to ex

These cases, especially in view of the principles adopted by the Supreme Court of the United States in determining them, would seem to settle the Virginia coupon question, so far as it can be settled by adjudication. The tax-receivable coupons are to all intents and purposes a legal tender for the payment of taxes due to the State of Virginia; and when tendered for this purpose by the tax payer to the proper officer of the State, the taxes are in legal effect paid, whether the coupons are received or not, so far as any subsequent proceedings to enforce payment are concerned. Any such proceedings on the part of the tax collector will render him personally responsible as a trespasser and a wrong-doer; and no law of the State can protect him against this liability. All existing laws of the State of Virginia, inconsistent with the contract made under the Funding Act of 1871, are simply a dead letter, and of no force. Any future legislation of the State, if having the same character, would be equally without authority. Whatever the people of Virginia may think or do in regard to the matter, such is the position of the Supreme Court of the United States.

Judge Bond, of the United States Circuit Court, as reported in the secular papers, has recently rendered a decision which gives practical effect to the opinion and order of the Supreme Court. His decree declared that when a tax payer tenders the tax-receivable coupons for his taxes due to the State of Virginia, he has thereby paid his taxes; that if the coupons be refused, the tax payer may deposit them in court, and that the clerk thereof shall give him a receipt, certifying that by order of the court his taxes are paid; that the collector of taxes is forever enjoined from levying upon the tax payer's property, and from returning said property as delinquent for taxes; and that the collec

James P. Dusenberry, administrator, etc., of Cephas M. Woodruff, deceased, brought an action of trespass on the case, in the Supreme Court, against Henry S. Little, receiver of the Central Railroad of New Jersey, to recover damages for the death of said decedent, caused by the alleged wrongful act, neglect or default of the agents of said receiver in operating said railroad, under the statute. Rev., p. 294. The deceased was a passenger on a train of cars of the Central Railroad, holding a ticket from Ocean Grove to New York city, on June 29, 1882, when the car in which he was sitting was thrown from the track at Parker's creek by an imperfect switch, on the New York and Long Branch Railroad, by which he was killed. The action was tried in the Circuit Court of Essex county, and a verdict rendered for the plaintiff. For this amount and costs, a judgment was entered in the Supreme Court, and this writ of error was brought to reverse the judgment.

John W. Taylor, for plaintiff in error.

H. C. Pitney, for defendant in error.

SCUDDER, J. The first error assigned on the bill of exceptions returned with the writ is that the receiver was not liable to this action because that under his statutory appointment he is not a common carrier, but a public officer.

This statute of February 11, 1874, enacts "that whenever any incorporated railroad company in this State shall become insolvent, and the property of such company shall have passed into the hands of a receiver by order of the chancellor, in accordance with the act to which this is a supplement, the receiver shall, and he is hereby empowered to operate said railroad for the use of the public, subject at all times to the order of the chancellor; and all expenses incident to the operation of said railroad shall be a first lien on the receipts, to be paid before any other incumbrance whatever." Rev., p. 196, § 106.

It is urged that as he was empowered by the act to operate the railroad for the use of the public, there can be no liability to individuals on his part when executing this public duty. Freeholders v. Strader, 3 Harr. 108; Cooley v. Freeholders, 3 Dutch. 415; Livermore v. Freeholders, 5 id. 245; S. C., 2 Vroom, 507; Pray v. Jersey City, 3 id. 394; Marvin Safe Co. v. Ward, 46 N. J. L. 19-21, are cited in support of this position. The exhaustive view of this disputed principle in Hill v. Boston, 122 Mass. 344; 23 Am. Rep. 332, defines its true application in protecting those who are acting *S. C., 46 N. J. L. 614.

under public authority. It agrees with the statement in the conclusion of the opinion of the court in Pray v. Jersey City, in these words: "The neglects of agents of the public in the discharge of their legitimate functions cannot constitute the basis of an action in behalf of an individual who has sustained a particular damage. Such neglects are public offenses, and must be remedied by indictment." Taking this as the settled law of our State, the first inquiry is, does this defendant, the receiver of an insolvent railroad company, stand in such position to the public that he can claim its protection?

An examination of the cases where this immunity has been given will show that it is limited to those who are strictly public officers, who are parts of the governmental agency of the State, entirely distinct from individual gain or profit, such as State, county, municipal and township boards and officers, discharg ing duties imposed on them by law, with none behind them but the public, whom they represent, and no funds to answer for damages except those that must be taken from the public treasury. The phrase in the statute, "to operate said railroad for the use of the public," does not create this public office. It imposes on the receiver appointed by the chancellor no other duty to the public than that which belongs to every railroad corporation acting under statutory authority. They must operate their railroads for the use of the public, and do so, otherwise they could have no legal right of eminent domain to condemn lauds and materials for the construction and maintenance of their roads. The object of the statute is plain, that when a railroad company becomes insolvent, it shall and may be kept in operation for the public convenience of travel and transportation. If its operation should immediately cease when its insolvency is determined, great detriment would follow to those who are de pendent on it as a highway open for the use of all who may ned it. At the trial in the Circuit, the judge in charging the jury, said that the statute "was simply designed to secure the running of the road in the interest of the public, by making the running expenses the first lien on the receipts, in priority over incumbrances." This is the obvious meaning, and there was no intention on the part of the Legislature to create a new public office, and clothe the receiver who occupied it by the appointment of the court, with the immunities of such office, and thereby enable him to shield himself, cover up the earnings and protect the stock. holders and creditors from damages to others in operating the road. It has been the judicial construction of this statute in our courts, that it does not change the obligation of the receiver, who by the appointment of the chancellor takes upon him the management of the road, and that he is liable, in his representative capacity in all respects to others for injuries, as the com. pany would be, if transacting its business in the usual way.

Klein v. Jewett, 11 C. E. Green, 474, decided that there was such liability of the receiver, and on appeal to this court, in the same case, 12 C. E. Green, 550, this point appears to have been abandoned.

Palys v. Jewett, 32 N. J. Eq. 302, was an action against the defendant, as the receiver of the Erie railway, for damages alleged to have been sustained by the plaintiff by reason of the negligence of the employees of the receiver in the management of a train of cars, and it ruled that a person having a legal cause of action, sounding merely in tort against the receiver appointed by the Court of Chancery, has a right to pursue his redress by an action of law, with the per mission of the chancellor. In the first-named case, Meara v. Holbrook, 20 Ohio St. 137; S. C., 5 Am. Rep. 633; Blumenthal v. Brainerd, 38 Vt. 402; Paige v. Smith, 99 Mass. 395, are cited with approval. In all, re

CARRIER-ILLEGAL CHARGES-MAY BE RECOVERED BACK.

OHIO SUPREME COURT, JANUARY TERM, 1884.

PETERS V. RAILROAD Co.*

A shipper has a right to have his goods transported at legal rates over the usual line of a common carrier of such goods; and if to procure the services of such carrier the shipper is compelled to pay illegal rates established by the carrier, the payment is not such a voluntary payment as will preclude recovering back the illegal charge; nor will it preclude such recovery if the payments, by arrangement of parties, are made at the end of each month. RROR to the District Court of Scioto county. The opinion states the point.

ERRO

Edward F. Hunter, W. A. Hutchins and M. A. Daugherty, for plaintiffs in error.

McClintic & Smith and Harrison, Olds & Marsh, for defendant in error.

FOLLETT, J. The plaintiffs aver that the defendant from time to time has received to and for the use of the plaintiffs several sums of money specified and set forth in tabular statements; and that the several sums

so received were for freight charges in excess of legal

rates.

It is admitted that the amounts charged were paid. The matters set up in the first defense were disposed of by this court in Campbell v. M. & C. R. Co., 23 Ohio St. 168, by holding: "Where the railroad of one company is purchased by another railroad company in pursuance of a statute authorizing the purchase, in the absence of any provision of law to the contrary, the road passes to the purchasing company subject to the same restrictions and limitations as to rates

chargeable for transportation as attached to it in the hands of the vendor." And section 12 of the act of February 11, 1848, governs this case.

In that case this court also held that: Where a railroad company is authorized to demand and receive compensation for transportation of property 'not exceeding five cents per ton per mile, when the same is transported a distance of thirty miles or more, and in case the same is transported for a less distance than thirty miles, such reasonable rate as may be from time to time fixed by the company,' it is unreasonable as a matter of law that the company should fix a greater sum for a less distance than thirty miles than the maximum allowed for full thirty miles."

In Smith v. P., Ft. W. & C. Ry. Co., 23 Ohio St. 10, this court also held: "Whether the rate of passenger fare fixed by a railroad company under section 12 of the act of February 11, 1848 (S. & C. 271), for distances less than thirty miles, be reasonable or not, is a question of fact for the jury, to be determined under such instructions by the court as the circumstances of the particular case may require."

In that case McIlvaine, J., said: "Whenever therefore the determination of the question whether the rate be reasonable involves the necessity of hearing testimony, it falls within the province of the jury.' We think the reasonableness of freight fare may be determined in the same manner.

In this case the special master heard the testimony and found the facts, and also reported the evidence, and from the peculiar facts of the case the master found a certain amount due for "the payments in excess of the rates authorized by law;" and the court below, from the same evidence, found the same facts, and added interest to that amount and found a definite sum. These findings seem conclusive; and *To appear in 42 Ohio State Reports, 275.

whether or not these particular findings be before this court for review, the majority of the court think there was no error in finding that such payments were for charges in excess of rates authorized by law. The defendant should have known what were legal rates, and should have charged no more.

The plaintiffs have paid to defendant these illegal charges-money unjustly obtained; and the remaining question is, can the plaintiffs recover back the same?

The defendant denies the plaintiffs' right to recover back, on the ground that these illegal charges were so paid voluntarily, after the services for which the same were demanded had been fully rendered and performed," etc.

The plaintiffs paid the charges for each month at the end of the month, and as the plaintiffs and defendant did not stand on terms of equality, they so paid to secure transportation for the succeeding month.

The defendant prescribed its own rates, and would carry the plaintiffs' freight only at the established rates, though these rates were illegal and unreasonable, and when, as a common carrier, it should have carried this freight at legal rates. The special master found that "the sums exacted were illegal and unauthorized, and plaintiffs were required to pay the same to procure the transportation of their property, without which the plaintiffs in each of said cases, by reason would have suffered great loss." of the character of their manufacturing business,

The defendant did not require the payments to be made in advance of carrying each shipment of freight, but the charges of each mouth were required to be paid at the end of the month, or future freight would not be carried.

Plaintiffs could compel the defendant to carry their freight ouly by a resort to the courts and at the end of litigation. The history of these suits, begun in 1867 and just ending in 1884, shows that plaintiffs could not obtain speedy and adequate redress, such as would save their business and prevent loss, simply by a resort to the courts to enforce legal rights. And as defendant would not accept the payment of legal rates, and required the full payment of its illegal charges, the plaintiffs, complaining and objecting to the increased and illegal charges, were forced to pay them. Their choice and volition were compelled. Such payments thorities and reasons of this position. are not voluntary. We will refer to some of the au

"The common principle is that if a man chooses to give away his money, or to take his chance whether he is giving it away or not, he cannot afterward change his mind; but it is open to him to show that he sup. posed the facts to be otherwise, or that he really had no choice." Pollock Prin. Cont. 523. These plaintiffs really had no choice.'

66

In 1760, in Moses v. Macferlan, 2 Burr. 1005, Lord Mansfield said: "This kind of equitable action to recover back money which ought not in justice to be kept is very beneficial, and therefore much encouraged. It lies only for money which, ex aequo et bono,

*

*

* *

the defendant ought to refund. * ** But it lies for * money got through an undue advantage taken of the plaintiff's situation, contrary circumstances." to laws made for the protection of persons under those

The plaintiffs paid this money in like situation. In Parker v. Great Western Ry. Co., 7 M. & Gr. 253, the court held that payments made to a common carrier to induce it to do what by law, without them, it was bound to do, were not voluntary, and might be recovered back. Add. Cont. *1043, approves this principle.

Mr. Justice Matthews, in Swift Co. v. United States,