Barry v. Edmunds

This is an action of trespass brought by the plaintiff in error. The declaration sets out the cause of action as follows:

'Robert P. Barry, plaintiff, complains of E. G. Edmunds, defendant, of a plea of trespass on the case, for this to-wit: That the plaintiff is a citizen and resident of Fauquier county, Virginia. That he owns property in said county, and that he was duly and lawfully assessed with the sum of fifty-six dollars and thirty-four cents as taxes upon said property, to be paid to the state of Virginia for the year 1884. That said taxes, by the laws of said state, were not leviable for prior to the first day of December, 1884, but if not paid prior to said last-named date were leviable for after said date. That, by a further provision of the laws of said state, if the taxes assessed for the year 1884 are not paid on or before the first day of December, 1884, the person owing the same becomes liable to pay, in addition thereto, a further sum of five per centum upon the amount of the tax so due. That the plaintiff did not pay his said tax prior to the first day of December, 1884, and thereby became liable to pay an additional sum of two dollars and eighty-one cents, making the plaintiff thus liable after the first day of December, 1884, for the sum of ($59.15) fifty-nine dollars and fifteen cents.

'That the defendant is the treasurer of Fauquier county, in the state of Virginia, and as such it is made his duty, by the laws of Virginia, to collect all taxes due to the said state by residents of said county. That in the month of June, 1885, the plaintiff tendered to the defendant, in payment of his said taxes, fifty-nine 15-100 dollars, in coupons and lawful money of the United States, the two together constituting the full amount due for said taxes. That each one of the said coupons was cut from a bond issued by the state of Virginia, under the authority of the provisions of an act of her general assembly approved March 28, 1879, entitled 'An act to provide a plan of settlement of the public debt.' That each one bore upon its face the contract of the state of Virginia that it should be received in payment of all taxes, debts, and demands due to said state, and that each one was due and past maturity. That the defendant refused the said coupons and money in payment of the plaintiff's taxes. That he refused to receive the same in payment of his taxes because an act of the general assembly of the state of Virginia, approved January 26, 1882, entitled 'An act to provide for the more efficient collection of the revenue, to support government, maintain the public schools, and to pay interest upon the public debt,' forbade him to receive them, and because another act of the general assembly of said state, approved January 14, 1882, entitled 'An act to prevent frauds upon the common wealth and the holders of her securities in the collection and disbursement of revenue,' likewise forbade him to receive them. That on the-day of June, 1885, the defendant, unlawfully, maliciously, and against the will of the plaintiff, entered upon the premises of the plaintiff, situated and being in the county of Fauquier, Virginia, with force and arms, and against the will of the plaintiff, and, acting as said treasurer aforesaid, did levy on and forcibly seize and carry away valuable personal property belonging to the said plaintiff, to-wit, one valuable horse, of the value of one hundred and twenty-five dollars, for the purpose of selling the same, and thus compelling the plaintiff to pay his taxes in another medium than that already offered by the plaintiff. That on the day when the defendant so levied on the plaintiff's property, and before he did so, the plaintiff again tendered to the defendant the said coupons and money in payment of his said taxes, but the defendant refused to receive the same in payment thereof; and the plaintiff was always ready and willirg, up to the moment of said levy, to deliver to the defendant the said coupons and money in payment of his said taxes, but the defendant always refused so to receive the same. That the defendant levied on the plaintiff's said property and carried the same away, because the eighteenth section of the act of the general assembly of Virginia, approved April 1, 1879, which is chapter 60 of the acts of the special session of 1879, commanded him so to levy upon the plaintiff's property not withstanding said tender.

'That, by reason of the contract of the state of Virginia set forth upon the face of said coupons, the plaintiff had a right to pay his said taxes with said coupons and money, and after he tendered the same to said treasurer his said taxes were, in point of law, paid and extinguished, and he held the said coupons and money for the defendant as his agent in that behalf thereafter. That, when the defendant so levied upon and seized the plaintiff's property, he knew that the supreme court of the United States had decided at its October term, 1884, in the case of Poindexter v. Greenhow, 5 Sup. Ct. Rep. 903, that a tender by a tax-payer of the state's tax-receivable coupons, such as those tendered by the plaintiff in payment of taxes due the state, pays and extinguishes said tax, and that any and all laws of said state commanding her treasurers to refuse the same, and commanding them to levy after said tender, are repugnant to the constitution of the United States, and are, therefore, null and void. That the defendant so knowing the law levied on and seized the plaintiff's property in contempt of and defiance of the law and with the deliberate intention of defying the constitution of the United States and the judicial powers thereof. That there exists in the state of Virginia a very great political party, which comprises a majority of the voters in said state, which has for its aims and purpose to enact laws that will defeat and destroy the effect of the judgment of the supreme court of the United States in said case of Poindexter v. Greenhow, and will defeat and destroy the protection afforded by the constitution of the United States to tax-payers who seek to pay their taxes with said tax-receivable coupons. That said party, being in control of the legislature of the said state, has enacted a great number, of statutes which are intended to have that effect, and it openly proclaims that it intends to enact all other and further statutes which shall be necessary to make it impossible for tax-payers to pay their taxes with said coupons.

'That the defendant is a member of said political party, and sympathizes with and shares in its aims and purposes, and actively co-operates in every way in his power in every attempt to make it impossible for tax-payers to pay taxes due to said state with said coupons. That when he refused to receive said coupons in payment of plaintiff's taxes, and when he levied on plaintiff's property as aforesaid, he did it for the purpose of aiding and assisting his said political party in its attempts to defy and unllify the constitution of the United States. That he intended thereby to intimidate the plaintiff and make him afraid to rely upon the constitution of the United States and the judicial power thereof for protection in those rights guarantied to the plaintiff by said constitution. That he intended to make an example of the plaintiff, and thereby deter him and all others from relying upon the constitution of the United States and the judicial power thereof for the protection in those rights guarantied by the said constitution. That in contempt of and defiance of the said constitution and said judicial power, the defendant made public advertisement in many parts of the county of Fauquier that he had levied on and seized plaintiff's property, because plaintiff was delinquent as a tax-payer, and that he would sell the same at public auction on a day named at the court-house of said county. That on the day named he did expose the said property to sale at public auction at said court-house, in the presence of many of plaintiff's neighbors, friends and fellow-countrymen, and publicly proclaimed that plaintiff was a defaulter and delinquent tax-payer. That by reason thereof plaintiff's credit and standing were greatly injured and his feelings cruelly wounded and mortified. That the defendant well knew when he made said levy and sale that they were forbidden by the constitution of the United States, but he did so, trusting and believing that his said political party would enact statutes of its state of Virginia that would shield and protect him from all harm. That he made said levy and sale maliciously, and with the purpose and intent to trample on the plaintiff's rights under the law, and do him all the injury in his power.

'And the said plaintiff further says that he is a citizen of Fauquier county, Virginia. That he owns property in said county, and that he was duly and lawfully assessed upon said property with the sum of fifty-six dollars thirty four cents, as taxes to be paid to the state of Virginia for the year 1884, which taxes by the laws of Virginia were not leviable for prior to the first day of December, 1884, but the same, if not paid prior to said last-named date, were leviable for after the said date. That by a further provision of the laws of said state, if the taxes assessed for the year 1884 are not paid on or before the first day of December, 1884, the person owing the same becomes liable to pay in addition thereto a further sum of five per centum upon the amount of the tax so due. That the plaintiff did not pay his said tax prior to the first day of December, 1884, and thereby became liable to pay an additional sum of $2.81, making the plaintiff thus liable after December 1, 1884, for the sum of $59.15. That the defendant is the treasurer of Fauquier county, in the state of Virginia, and as such it is made his duty, by the laws of Virginia, to collect all taxes due to the said state by residents and owners of property in said county.

'That in the month of June the plaintiff tendered to the defendant, in payment of his said taxes, coupons for $_____ each, and $_____, in lawful money of the United States, the two together constituting the sum of $59.15. That each one of said coupons was cut from a bond issued by the state of Virginia, under the authority and provisions of an act of her general assembly, approved March 28, 1879, entitled 'An act to provide a plan of settlement of the public debt.' That each one bore upon its face the contract of the state of Virginia that it should be received in payment of all taxes and demands due said state, and that each one was overdue and past maturity. That the defendant refused to receive the said coupons and money in payment of the plaintiff's taxes. That he refused to receive the same in payment of his taxes, because an act of the general assembly of the state of Virginia, approved January 26, 1882, entitled 'An act to provide for the more efficient collection of the revenue, to support government, maintain the public schools, and to pay interest upon the public debt,' forbade him to receive them, and because another act of the general assembly of the state of Virginia, approved January 14, 1882, entitled 'An act to prevent fraud upon the common wealth and the holders of her securities in the collection of revenue,' likewise forbade him to receive them.

'That on the _____ day of June, in the year eighteen hundred and eighty-five, the defendant, unlawfully and against the will of the plaintiff, entered upon the premises of the plaintiff, situate and being in the county of Fauquier, Virginia, with force and arms, and against the will of the plaintiff, and, acting as said treasurer aforesaid, he levied on and forcibly seized and carried away valuable personal property belonging to the plaintiff, to-wit, one horse, to the value of $125, for the purpose of selling the same, and thus compelling the plaintiff to pay his taxes in another medium than that already offered by the plaintiff. That on the day when the defendant so levied on the plaintiff's property, and before he did so, the plaintiff again tendered to the defendant the said coupons and money in payment of said taxes, but the defendant refused to receive the same in payment thereof, and the plaintiff was always ready and willing, up to the moment of said levy, to deliver to the defendant the said coupons and money in payment of his said taxes, but the defendant always refused to receive the same. That the defendant levied on the plaintiff's said property and carried the same away because the eighteenth section of the act of the general assembly of Virginia, approved April 1, 1879, which is chaper 60 of the acts of the special session of 1879, commanded him so to levy upon the plaintiff's property not withstanding said tender. That, by reason of the contract of the state of Virginia, set forth upon the face of said coupons, the plaintiff had a right to pay his said taxes with said coupons and money, and after he tendered the same to the said treasurer his said taxes were, in point of law, paid and extinguished, and he held the said coupons and money for the defendant as his agent in that behalf thereafter. That when the defendant so levied upon and seized the plaintiff's property he knew that the supreme court of the United States had decided at its October term, 1884, in the case of Poindexter v. Greenhow, that a tender by a tax-payer of the state's tax-receivable coupons, such as those tendered by the plaintiff, in payment of taxes due the state, pays and extinguishes said tax, and that any and all laws of said state commanding her treasurer to refuse the same, and commanding them to levy after said tender, are repugnant to the constitution of the United States, and are therefore null and void. That the defendant, so knowing the law, levied on and seized the plaintiff's property in contempt of and defiance of the law, and with the deliberate intention of defying the constitution of the United States and the judicial power thereof. That in contempt of and defiance of the said constitution and judicial power the defendant made public advertisement in many parts of the county of Fauquier that he had levied on and seized plaintiff's property because plaintiff was delinquent as tax-payer, and that he would sell the same at public auction, on a day named, at the court-house in said county. That on the day named he did expose the said property to sell at public auction, at said court-house, in the presence of many of the plaintiff's neighbors and friends and fellow-citizens and countrymen, and publicly proclaimed that the plaintiff was a defaulter and delinquent tax-payer. That by reason thereof plaintiff's credit and standing were greatly injured, and his feelings cruelly wounded and mortified. That while the said defendant was unlawfully and wrongfully upon the plaintiff's premises as aforesaid, he did many other wrongs and injuries to the plaintiff of a malicious nature, by all which wrongs and injuries the plaintiff has been injured and damaged six thousand dollars. And therefore he brings his suit.'

To this declaration the defendant filed a plea to the jurisdiction of the circuit court, alleging that, as the plaintiff and defendant were both citizens of the state of Virginia, the courts of that state had exclusive jurisdiction of the alleged cause of action. The record shows the following action and judgment of the court: 'This cause came on this day to be considered by the court upon a motion made by the plaintiff to set a day for argument of a demurrer to the special plea filed herein. Upon consideration whereof the court is of opinion that this suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of this court, for the reason that the amount of taxes due by the plaintiff to the state of Virginia was less than one hundred dollars, and the property levied on and seized by the defendant was worth less than two hundred dollars, and, therefore, that the matter in dispute in this cause does not exceed, exclusive of costs, the sum or value of five hundred dollars, ($500.) And it appearing to the court that this being an action for damages, if the jury should render a verdict for ($500) five hundred dollars damages such verdict would be excessive, and the court would feel compelled to set it aside. The court is further of opinion that this court is, for that reason, also without jurisdiction of this suit. 'The court is, therefore, for each of the aforesaid reasons, of opinion that it is required to dismiss this suit by the act of congress approved March 3, 1875, 'to determine the jurisdiction of the circuit courts of the United States, and to regulate the removal of causes from the state courts, and for other purposes;' and this suit is accordingly hereby dismissed and stricken from the docket of the court, with costs.'

The object of the present writ of error is to review this judgment.

W. L. Royall and D. H. Chamberlain, for plaintiff in error.

''Jas. V. Brooke, F. S. Blair, R. A. Ayers, and W. R. Staples'', for defendant in error.

MATTHEWS, J.