Antoni v. Greenhow/Concurrence Matthews

MATTHEWS, J.

I concur in the judgment of the court, but prefer to rest the decision upon a ground different from that on which it is placed in its opinion.

I agree that the state of Virginia, by the act of 1871, entered into a valid contract with the holders of its bonds to receive their coupons in payment of taxes; and that any subsequent statute which denies this right is a breach of its contract and a violation of the constitution of the United States.

But for a breach of its contract by a state, no remedy is provided by the constitution of the United States against the state itself; and a suit to compel the officers of a state to do the acts which constitute a performance of its contract by the state, is a suit against the state itself.

If the state furnishes a remedy by process against itself or its officers, that process may be pursued, because it has consented to submit itself to that extent to the jurisdiction of the courts; but if it chooses to withdraw its consent by a repeal of all remedies, it is restored to the immunity from suit, which belongs to it as a political community, responsible in that particular to no superior.

I adopt, as decisive of the present case, the language of the chief justice, in expressing the opinion of the court in the cases of the State v. Jumel and Elliott v. Wiltz, [post:]

'When a state submits itself without reservation to the     jurisdiction of a court in a particular case, that      jurisdiction may be used to give full effect to what the      state has, by its act of submission, allowed to be done; and      if the law permits coercion of the public officers to enforce      any judgment that may be rendered, then such coercion may be      employed for that purpose. But this is very far from     authorizing the courts, when a state cannot be sued, to set      up its jurisdiction over the officers in charge of the public      moneys, so as to control them as against the political power      in their administration of the finances of the state.'

I do not, therefore, consider it necessary to enter upon the inquiry, whether the remedy provided by the state of Virginia, by the act of 1882, is effective and substantial, compared with that which existed in 1871, when the bonds were issued. It is sufficient to say that it is the one which the state has chosen to give, and the only one, therefore, which the courts of the United States are authorized to administer.

BRADLEY and GRAY, JJ., concurred in the judgment upon both grounds: that stated in the opinion of the court as delivered by the chief justice, and that stated in the opinion of Mr. Justice MATTHEWS.