Commonwealth v. Mccullough

• Decision Date: 15 March 1894
• Citation: 19 S.E. 114,90 Va. 597
• Parties: COMMONWEALTH v. McCULLOUGH. SAME v. BARRY. SAME v. DAVIS et al. SAME v. McCULLOUGH et al.1
• Court: Virginia Supreme Court

19 S.E. 114

90 Va. 597

COMMONWEALTH

v.McCULLOUGH.

SAME

v.BARRY.

SAME

v.DAVIS et al.

SAME

v.McCULLOUGH et al.¹

Supreme Court of Appeals of Virginia.

March 15, 1894.

Virginia State Bonds—Receipt of Coupons fou Taxes—Constitutional Law.

1. In an action to compel the state to receive coupons for taxes, where the constitutionality of the coupon feature of the acts relating to the settlement of the state debt is involved, the supreme court of appeals has jurisdiction, though the amount involved is less than $500.

2. Since the coupon contract authorized by the funding acts of March 30, 1871, and March 28, 1879, and expressed on the face of each coupon, —that the coupons shall be receivable, after maturity, for all taxes, debts, dues, and demands due the state, —is one entire contract, and incapable of separation, the invalidity thereof, in so far as it makes moneys due the literary fund of the state payable in such coupons, renders the whole coupon contract void. Vash-on v. Greenhow, 10 Sup. Ct. 972, 135 U. S. 716, applied.

Lewis, P., dissenting.

Error to circuit court of city of Norfolk.

Petitions by A. A. McCullough, one Barry, Davis & Co., and McCullough & Co. against the commonwealth of Virginia. From judgments for petitioners, the commonwealth brings error. Reversed.

R. Taylor Scott, Atty. Gen., Ellis & Kerr, and H. R. Pollard, for the Commonwealth.

Maury & Maury, for defendant in error.

RICHARDSON, J. These cases are precisely alike, the same questions being involved in each of them. This being so, this opinion will be delivered in the first-named case of Commonwealth v. McCullough, and is to apply equally to each of the other three cases of Commonwealth v. Barry, Commonwealth v. Davis & Co., and Commonwealth v. McCullough & Co. These cases—like the Virginia Coupon Cases, decided in April, 1885, and reported in 114 U. S. 269, 5 Sup. Ct. 903, and like Barry v. Edmunds, and other cases argued at the same time, decided in February, 1886, and reported in 116 V. S. 550, 6 Sup. Ct 501, and also like the group of eight cases, including McGahey v. Virginia, Hucless v. Childrey, and Vashon v. Greenhow, decided by the supreme court of the United States at the October term, 1889, and reported in 135 U. S. 664, etc., 10 Sup. Ct. 972—arise with respect to certain coupons alleged to have been cut from bonds of the commonwealth of Virginia issued under an act of her general assembly approved March 30, 1871, and entitled "An act to provide for the funding and payment of the public debt" or from bonds of said commonwealth issued under authority of an act of her general assembly approved March 28, 1879, entitled "An act to provide a plan of settlement of the public debt;" it being further alleged that said coupons "are by law receivable for taxes, debts, and demands due the state of Virginia." The defendant in error, A. A. McCullough, who was the petitioner in the court below, on the 20th day of May, 1892, presented his petition in the circuit court of the city of Norfolk, as follows: "Your petitioner, A. A. McCullough, respectfully represents unto your honor that he is a taxpayer of the city of Norfolk; that on the 30th day of April, 1892, being indebted to the state of Virginia $498, state tax, due by him on his real estate, other than school tax, and not liquor license tax, he tendered W. W. Hunter, treasurer of said city, and the officer appointed by law to receive said tax, in payment thereof, $498 in past-due coupons (as per schedule herewith) cut from bonds of the said commonwealth issued under an act of the general assembly approved March 30, 1871, and entitled 'An act to provide for the funding and payment of the public debt, ' or from bonds of the said state issued under authority of an act of her general assembly approved March 28, 1879, entitled 'An act to provide a plan of settlement of the public debt, ' which said coupons are by law receivable for taxes, debts, and demands due the state of Virginia, who received the same for identification and verification, and forwarded them to this court for that purpose, according to law. (See his receipt therefor herewith filed, marked 'Exhibit B, ' and prayed to be taken as a part of this petition.) And thereupon your petitioner paid him the full amount of said tax in money. Your petitioner alleges that no part of the tax for which said coupons were tendered was set apart for, or appertained to, public school purposes, or the literary fund. Your petitioner alleges that the said coupons are genuine, legal coupons, past due, and legally receivable for all taxes, debts, and demands due the commonwealth of Virginia. And your petitioner prays that the state of Virginia be summoned to answer this petition, and that when said coupons are ascertained to be genuine, legal coupons, past due, and receivable for taxes, debts, and demands due the commonwealth of Virginia, this court will so certify, to the end that your petitioner may recover back the money so paid by him as aforesaid, according to law, and your petitioner will ever pray. [Signed] A. A. McCullough, by J. W. Willcox. His Attorney." The case came on. to be heard on the 29th of June, 1892, when the defendant, the commonwealth of Virginia, moved to dismiss the petition on the grounds that the acts approved March 30, 1871, and March 28, 1879, upon which these proceedings were based, are unconstitutional and void, to the extent that the coupons attached to the bonds issued under each of these acts were thereby made "receivable for all taxes, debts, dues and demands due the state." But the court overruled the motion, and the defendant excepted. Thereupon, the defendant demurred to said petition, but the court overruled the demurrer; and then the defendant tendered five several pleas in writing, each of which was rejected. And to the action of the court, overruling said demurrer and rejecting said pleas in writing, the commonwealth took her several exceptions. The principal ground of demurrer, and the only one that need be mentioned here, is this: That the acts in the petition mentioned are In conflict with the seventh and eighth sections of article 8 of the constitution of Virginia, and with sections 2 and 113 of the act of the general assembly of Virginia passed in pursuance thereof, and approved March 15, 1884, to the extent that said acts of March 30, 1871, and of March 28, 1879, provide that the coupons therein mentioned shall be receivable after maturity for "all taxes, debts, dues and demands due the state, which shall be so expressed on their face." It appears from the record that a jury was impaneled and sworn to try the issue, and responded by their verdict as follows: "We, the jury, find for the petitioner upon the issue joined; and we also find that the coupons mentioned in the petition are genuine, legal coupons, legally receivable for the taxes, debts, and demands due to the commonwealth, of Virginia, for which they were tendered." And thereupon the circuit court adjudged and determined that "the said coupons are fully proved as genuine, legal coupons, legally receivable for the taxes, debts, and demands due the commonwealth, for which they were tendered." At the Instance of the defendant, the commonwealth of Virginia, the case is here on a writ of error to said judgment.

The first question for consideration arises upon the motion of the defendant in error to dismiss the writ of error awarded the commonwealth on the grounds—First, that the minimum jurisdictional amount is not Involved; and, second, that the constitutionality of no law is involved. This question of jurisdiction, which confronts us at the threshold, presents no serious difficulty, and is easily disposed of. One of the questions involved in the issue tried was whether the coupons tendered were legally receivable for all taxes, debts, dues, and demands due the commonwealth of Virginia. There could be no other issue, because the said acts of March 30, 1871, and of March 28, 1879, respectively, provide, expressly, that the coupons attached to the bonds issued thereunder shall "be receivable at, and after maturity for all taxes, debts, dues and demands due the state, " and said acts expressly require that this be expressed on their face. Neither of said acts authorizes coupons receivable, after maturity, merely for "taxes, debts and demands due the state, " nor for taxes other than the fund directed by the constitution to the support and maintenance of the public free schools, and the liquor license tax. On the contrary the language is, "for all taxes debts, dues and demands due the state, which shall be so expressed on their face." This quality of receivability presents the case of an entire contract, that cannot be apportioned—a case where the bargain is one, the consideration is one, and the coupon covenant is one and inseparable; and, as the legal receivability of the coupons in question must depend upon the authority conferred by one or the other, or both, of the acts last above referred to, it would seem to follow, as a matter of course, that any coupon cut from bonds issued under either of said acts, that has not on its face the words, "Receivable after maturity for all taxes, debts, dues and demands due, " etc., is not a legally receivable coupon, or, in other words, is a coupon issued without authority of law. Yet, in the petition, it is alleged "that the petitioner, being indebted to the state of Virginia $498, state tax due by him on his real estate, other than school tax, and not liquor license tax, tendered to W. W. Hunter, treasurer of said city, and the officer appointed by law to receive said taxes, in payment thereof, $498 in past-due coupons • * * cut from bonds of the said commonwealth, issued under an act of the general assembly approved March 30, 1871, * * * or from bonds of the said state issued under authority of an act of her general assembly approved March 28, 1879, * * * which said coupons are by law receivable 'for taxes, debts and...