Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/595

 CH. XXXVIII.] full operation, when understood affirmatively, and in which the negative, or exclusive sense is to be so used, as to defeat some of the great objects of the article. To this construction the court cannot give its assent. The general expressions in the case of Marbury v. Madison must be understood with the limitations, which are given to them in this opinion; limitations, which in no degree affect the decision in that case, or the tenor of its reasoning. The counsel, who closed the argument, put several cases for the purpose of illustration, which he supposed to arise under the constitution, and yet to be, apparently, without the jurisdiction of the court. Were a state to lay a duty on exports, to collect the money and place it in her treasury, could the citizen, who paid it, he asks, maintain a suit in this court against such state, to recover back the money 1 Perhaps not. Without, however, deciding such supposed case, we may say, that it is entirely unlike that under consideration.

§ 1712. The citizen, who had paid his money to his state, under a law that is void, is in the same situation with every other person, who has paid money by mistake. The law raises an assumpsit to return the money, and it is upon that assumpsit, that the action is to be maintained. To refuse to comply with this assumpsit may be no more a violation of the constitution, than to refuse to comply with any other; and as the federal courts never had jurisdiction over contracts between a state and its citizens, they may have none over this. But let us so vary the supposed case, as to give it a real resemblance to that under consideration. Suppose a citizen to refuse to pay this export duty, and a suit to be instituted for the purpose of compelling him to pay it. He pleads the constitution of the United States in bar of the action, notwithstanding which the