Ex parte Ayers. Ex parte Scott. Ex parte McCabe

Decision Date05 December 1887
Citation31 L.Ed. 216,8 S.Ct. 164,123 U.S. 443
PartiesEx parte AYERS. Ex parte SCOTT. Ex parte MCCABE
CourtU.S. Supreme Court

Petition for writ of habeas corpus.

[Syllabus from pages 443-444 intentionally omitted] A writ of habeas corpus, directed to the marshal of the United States for the Eastern district of Virginia, having heretofore been issued by this court on the application of Rufus A. Ayers, attorney general of the state of Virginia, the marshal has made return thereto that the petitioner, whose body he produces, was in his custody and detained by him by virtue of an order, judgment, decree, and commitment of the circuit court of the United States for the Eastern districts of Virginia, a certified copy of which is attached as a part of the return; and further returned that the petitioner had not paid, and refuses to pay, the fine imposed upon him by said order. The order of commitment, dated at Richmond, October 8, 1887, is as follows:


In re Rufus A. Ayers.

'This matter came on this day to be heard upon the rule heretofore issued against Rufus A. Ayers, attorney general of the state of Virginia, to show cause why he should not be attached for contempt in disobeying the restraining order heretofore granted in the suit of Cooper et al. v. Marye et al., on the sixth day of June, 1887, and his answer thereto; on consideration whereof the court is of opinion, and doth order and adjudge, that the said Rufus A. Ayers is guilty of contempt in his disobedience of said order, and that he do forthwith dismiss the suit of The Commonwealth v. The Baltimore & Ohio Railroad Company, instituted by him in the circuit court of the city of Richmond, and that for his said contempt he be fined the sum of $500, and stand committed in the custody of the marshal of this court until the same be paid, and he purge himself of his contempt by dismissing said suit last herein mentioned.'

A transcript of the proceedings, orders, and decrees of the circuit court of the United States for the Eastern district of Virginia in the suit of Cooper et al. v. Marye et al., referred to in the order of commitment, is also produced, and set out in full as a part of the record in this matter. From that it appears that on June 6, 1887, James P. Cooper and others, suing on their own behalf and for all others similarly situated, being aliens, subjects of Great Britain, filed their bill of complaint in the circuit court of the United States for the Eastern district of Virginia against Morton Marye, auditor of the state of Virginia, Rufus A. Ayers, the attorney general thereof, and the treasurers of counties, cities, and towns in Virginia, and the commonwealth attorneys of counties, cities, and towns in said state, whose names they prayed they might be allowed to insert in the bill as defendants when discovered.

In that bill it is alleged that, by an act of the general assembly of Virginia approved March 30, 1871, and another approved March 28, 1879, the state of Virginia had provided for the issue of a large number of bonds bearing interest coupons, which she thereby contracted should be received in payment of all taxes, debts, and demands due to her, of which large numbers, amounting to many millions of dollars, had been in fact issued; that said coupons, issued under both of said acts, are payable to bearer, and both as a contract to pay interest, and as a contract that they shall be received in payment of taxes, are negotiable instruments, free in the hands of any bona fide purchaser for value from any equity or burden whatever; that there are outstanding and overdue in the hands of the public at large more than $4,000,000 of these overdue coupons; that, in pursuance of a plan subsequently conceived and adopted to destroy the marketable value of these coupons, the general assembly of the state of Virginia, by the fifteenth section of an act dated February 14, 1882, forbade all the officers of the state to pay and redeem the same according to the tenor of the contract contained therein, and by an act dated January 26, 1882, the collectors of taxes were forbidden to receive the same in payment of any taxes due to them; that nevertheless these statutes were declared by the supreme court of the United States to be unconstitutional and void; that thereafter the complainants, on the faith of said decision, and the belief caused thereby that the said state would be utterly unable by any legislative enactment to impair the value of said coupons as a tender for taxes, had bought a large quantity of said coupons in the open money market of the city of London and elsewhere, amounting to more than $100,000 nominally, at a cost of more than $30,000; that this purchase was made for the purpose of selling said coupons to the tax-payers of Virginia, to be used by them as tenders for taxes due said state, the complainants believing that they would be able to sell said coupons to such tax-payers at a considerable advance on the price paid for them, many of which the complainants have sold to said tax-payers; that the general assembly of Virginia enacted another statute, dated May 12, 1887, a copy of which is set out as an exhibit to the bill, whereby, as is alleged, 'the treasurer of each county, city, and town in the state is ordered to furnish to the commonwealth's attorney thereof a list of all persons who have tendered the said state's coupons in payment of their taxes, and said commonwealth's attorneys are ordered to institute suits by summary proceedings in the name of said state against all such persons to recover a judgment against them for the amount of said taxes so previously due by them; that the said tax-payers are thereby required to submit to a judgment against them by default, or to appear in court and plead a tender of said coupons, and then prove affirmatively that the coupons tendered by them are the state's coupons, and not counterfeit and spurious coupons, the burden of proving the same being placed upon the tax-payer, and the coupon being taken to be prima facie spurious and counterfeit.'

In the bill it is further alleged 'that said act is repugnant to section ten of article one of the constitution of the United States, for the reason that, taken in connection with said act before mentioned of January 26, 1882, it first commands the state's officers to refuse to receive those coupons which are undoubtedly her own, as well as those which are spurious, (and your orators charge that there are none such,) and then commands her officers to bring said suits against those who have tendered said coupons of said state, as well as against those who have tendered spurious coupons; that it imposes upon the defendants heavy costs and fees, although all taxes due by them were paid by said tender; and it makes the judgment to be recovered in said suit a perpetual lien upon all the property of said tax-payer for said taxes, and for said costs and fees also; thus fixing a perpetual cloud upon the title of said taxpayer to his property.'

It is further alleged in the bill 'that, by another act of the general assembly of said state approved January 26, 1886, it is provided that upon a trial of the issue to be made up under said act of May 12, 1887, the defendant shall produce the bond from which the coupon so tendered by him was cut, and prove that it was cut from said bond;' and that, as very few of said bonds are owned by persons residing in Virginia, the tax-payers would be utterly unable to produce said bonds, as required by said act.

It is further alleged therein 'that, by another act of said general assembly, approved _____, 1886, it is provided that the tax-payer undertaking to prove said tender shall not be allowed to introduced expert evidence to prove the genuineness of said coupons, and all that have been issued under either of said acts are engraved only, as said acts provided they may be, and are not signed manually.' Wherefore it is alleged that 'said tax-payers who cannot produce said bonds will be utterly unable to prove their coupons to be genuine upon said trial, the state thus forcing them into a lawsuit in her own courts in which she has taken effectual precautions beforehand to make it impossible they can win, and to make it a legal certainty that they must lose when they cannot produce said bonds; that said act is a device and trick enacted to take away from and deprive said coupons of their value as tender for taxes.'

It is further alleged therein that the supreme court of appeals of the state of Virginia has decided that said last-named two acts, requiring said bonds to be produced, and forbidding the use of expert testimony, are valid laws, not repugnant to the constitution of the United States. It is further alleged in the bill that, as the great bulk of the tax-payers of Virginia pay small sums, 'if her officers are allowed to enforce said act of May 12, 1887, against them, the profit to be derived from purchasing year orators' coupons will be too small to induce them to do so, and, indeed, it will be impossible for them to use said coupons at all, except in the very limited cases in which they can produce said bonds;' and that 'your orators will not only loss the profit which they had a right to expect they would make when they purchased said coupons, but they will be unable to sell them to Virginia's tax-payers at any price, and thus their entire property in the same will be destroyed; and your orators charge and aver that, in any event, unless they are granted the injunction hereinafter prayed for, they will lose a sum greater than $2,000.'

It is further charged in the bill 'that the treasurer of each county, city, and town in said state is about to report to each commonwealth's attorney the name of every tax-payer who has tendered coupons, and each commonwealth's attorney is going at once to institute the suits provided for...

To continue reading

Request your trial
457 cases
  • 4115,4116,| United States ex rel. Miller v. Clausen
    • United States
    • U.S. District Court — Western District of Washington
    • July 13, 1923
    ... ... 91, 27 L.Ed ... 468; In re Ayers, 123 U.S. 443, 8 Sup.Ct. 164, 31 ... L.Ed. 216; ... ...
  • Morrill v. American Reserve Bond Co. of Kentucky
    • United States
    • U.S. District Court — Western District of Missouri
    • January 10, 1907
    ... ... 203, 221, 21 L.Ed ... 447; Ex parte McNeil, 13 Wall. 236, 20 L.Ed. 624; Cowley ... ...
  • Gainer v. School Board of Jefferson County, Ala.
    • United States
    • U.S. District Court — Northern District of Alabama
    • November 4, 1955
    ...608, 29 L.Ed. 805; State of Louisiana ex rel. Elliott v. Jumel, 1883, 107 U.S. 711, 2 S.Ct. 128, 27 L.Ed. 448; In re Ayers, 1887, 123 U.S. 443, 8 S.Ct. 164, 31 L.Ed. 216; Smith v. Reeves, 1900, 178 U.S. 436, 20 S.Ct. 919, 44 L. Ed. 1140; State of Missouri v. Fiske, 1933, 290 U.S. 18, 54 S.C......
  • Rhode Island Dept. of Environmental Mgmt. v. U.S.
    • United States
    • U.S. Court of Appeals — First Circuit
    • April 8, 2002
    ...long been understood as one of the primary indignities the doctrine of sovereign immunity serves to prevent. See In re Ayers, 123 U.S. 443, 505, 8 S.Ct. 164, 31 L.Ed. 216 (1887) ("The very object and purpose of the eleventh amendment were to prevent the indignity of subjecting a state to th......
  • Request a trial to view additional results
14 books & journal articles
  • Keeping the Arms in Touch: Taking Political Accountability Seriously in the Eleventh Amendment Arm-of-the-state Doctrine
    • United States
    • Emory University School of Law Emory Law Journal No. 64-3, 2015
    • Invalid date
    ...Treasury, 323 U.S. 459, 464 (1945), overruled on other grounds by Lapides v. Bd. of Regents, 535 U.S. 613 (2002))); see also In re Ayers, 123 U.S. 443, 488 (1887).36. See Jonathan W. Needle, Note, "Arm of the State" Analysis in Eleventh Amendment Jurisprudence, 6 REV. LITIG. 193, 207 (1987)......
  • Vectoral Federalism
    • United States
    • Georgia State University College of Law Georgia State Law Reviews No. 20-2, December 2003
    • Invalid date
    ...but an exemplification."); Hans v. Louisiana, 134 U.S. 1, 12 (1890) (emphasizing the "force and meaning of the amendment"); In re Ayers, 123 U.S. 443, 505-06 (1887) ("To secure the manifest purposes of the constitutional exemption guaranteed by the Eleventh Amendment, requires that it shoul......
    • United States
    • University of Pennsylvania Law Review Vol. 169 No. 3, February 2021
    • February 1, 2021
    ...record, e.g., Osborn v. Bank of the U.S., 22 U.S. (9 Wheat.) 738, 838-42, 857-58 (1824), the real party in interest, e.g., Ex parte Ayers, 123 U.S. 443, 488 (1887), or the legal capacity of the entity under state law, e.g., Workman v. New York City, 179 U.S. 552, 565 (1900); P.R. Ports Auth......
  • The Principled and Unprincipled Grounds of the New Federalism: a Call for Detachment in the Constitutional Adjudication of Federalism - Scott Fruehwald
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 53-2, January 2002
    • Invalid date
    ...235. Id. at 743-48. 236. Id. at 744. 237. Id. at 745. 238. Id. 239. Id. at 748. 240. Id. 241. Id. 242. Id. 748-49 (quoting In re Ayers, 123 U.S. 443, 505 (1887)). 243. Id. at 749. 244. Id. at 750-52. The Court contended that "[w]hile the judgment creditor of a State may have a legitimate cl......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT