[224] "That by joint resolution approved 9th Feb- thorized and required to issue the same, a new "And it was further thereby declared 'that the bonds and stocks reported by the special commissioner as valid, and the portions of the bonds and stocks also reported by him as valid, but exchanged by their holders, as herein before provided, for new consolidated bonds or stocks, are hereby declared to be valid and unquestioned obligations of the State.' And the bonds and stocks so declared to be unquestionable obligations of the State are designated and known as 'brown consols.' "That the special commissioner appointed under the Act aforesaid did perform the duties required of him by said Act, and did make to the state treasurer from time to time the report of his investigations until he had investigated and reported upon the entire consolidated debt of the State, as required by the said Act, which reports of the said special commissioner remain in the office of the state treasurer. "That by an Act entitled 'An Act to Extend the Time for Funding the Unquestionable Debt of the State,' approved December 24, 1880, the comptroller-general of the State is required to examine into the character and material of all consolidated bonds and certificates of stock of the State issued since the first day of January, 1866, together with the coupons and interest orders thereon, which may be presented to him for this purpose by the holders thereof, and to report to the state treasurer bow the said bonds, certificates of stock, coupons, and interest orders are affected by the decision of the Supreme Court of the State herein before stated, and the exact percentage of invalidity in the material reported upon as established by the said decision. "And the state treasurer is authorized and required, in lieu of the bonds, stocks, coupons, and interest orders so surrendered, to issue consolidated bonds and certificates of stock for fifty per cent of the face value of the valid material surrendered. "Whereas, from the fact that the green consols outstanding are more or less tainted with invalidity, varying with each security (which has been established by the courts and ac quiesced in by the holder), the coupons from this class of bonds cannot be received by the tax collector, but can only be paid at the state the amount of invalidity in each coupon to be ascertained: Now, therefore, in order to hasten the process now going on of the conversion of green consols into brown consols, which latter represent the unquestioned consol debt of the State, and the coupons from which are now being received in payment for taxes: "Be it resolved, That on and after the first day of January, eighteen hundred and eightythree, the interest upon the green consol bonds and stocks of the State shall not be paid at the treasury until said securities have been converted into brown consol bonds and stocks." The answer then proceeds to set forth the particulars in which it is claimed that the consolidated bonds described in the complaint are not valid obligations of the State of South Carolina, and further alleges "that the holders of the bonds Nos. 850,851, and 2290 mentioned in the complaint did not bring the same before the special 'court of claims,' and that they have never surrendered the same to the commissioner or the comptroller-general or the state treasurer to ascertain and establish the exact percentage and amount of the invalidity of the said bonds in accordance with the principles laid down in the decision of the Supreme Court of the State of South Carolina aforesaid, as provided by law, and have never received new consolidated bonds or certificates of stock equal in amount to the valid portion of said bonds, as provided by law, known as 'brown consols."" The answer further alleges that the Act en- taxes, not including school taxes;" and the de- The cause came on for trial before a jury, [225] Messrs. Samuel Lord, Clarence A. Seward and T. M. Mordecai, for plaintiff in error. The Act under which these bonds were issued is constitutional. Morton v. Comptroller-General, 4 S. C. 430, Bond Debt Cases, 12 S. C. 200; Whaley v. Gaillard, 21 S. C. 560. Recital, in a municipal bond, of facts which the corporate officers had authority by law to determine and to certify estops the corporation | from denying those facts; but a recital therein of facts which the corporate officer had no authority to determine does not estop the corporation. Dixon County v. Field,111 U. S. 83 (28: 360); Walnut v. Wade, 103 U. S. 694 (26: 530), Buchanan v. Litchfield, 102 U. S. 289 (26; 139). The existence of extraordinary expenditures, and the need for defraying them, were within the exclusive knowledge of the Legislature, and within its exclusive judgment. This judgment, when expressed, is final. Lynde v. Winnebago County, 83 U. S. 16 Wall. 13 (21:274); Marcy v. Oswego Twp. 92 U. S. 637 (23:748); Johnson County v. January, 94 U. S. 205 (24:111). The Consolidation Act was a compromise between the State and every person holding her bonds and certificates, whereby each party settled forever all questions affecting the rights of each other; and neither in equity nor law could this compromise be reviewed. the highest court of a State of the laws and Elmendorf v. Taylor, 23 U. S. 10 Wheat. The decision of the Supreme Court of South Carolina upon these points does not present a federal question. Nesmith v. Sheldon, 48 U. S. 7 How. 818 (12: 927); Fairfield v. Gallatin County, 100 U. S. 47 (25: 544); Randall v. Brigham, 74 U. S. 7 Wall. 523 (19:285); South Ottawa v. Perkins, 94 U. S. 261 (24:154); Post v. Kendall County, 105 U. S. 667 (26:1204); Elmwood Twp. v. Marcy, 92 U. S. 294 (23:713); Adams County v. Burlington & M. R. R. Co. 112 U. S. 123 (28: 678); Brown v. Atwell, 92 U. S. 327 (23:511); Murdock v. Memphis, 87 U. S. 20 Wall. 590 (22:429); Moore v. Mississippi, 88 U. S. 21 Wall. 636 (22:653) Bolling v. Lersner, 91 U. S. 594 (23:366); Detroit City R. Co. v. Guthard, 114 U. S. 134 (29:118); Otis v. Oregon Steamship Co. 116 U. S. 548 (29:719); Jacks v. Helena, 115 Louisiana v. Pilsbury, 105 U. S. 278 (26:1090); | U. S. 288 (29:392);` Jenkins v. Loewenthal, 110 Story, Cont. § 449; Story, Eq. Jur. 129-131, and cases cited; Stewart v. Stewart, 6 Clark & F 911; Stapilton v. Stapilton, 1 Atk. 10; Gibbons v. Caunt, 4 Ves. Jr. 840; Union Bank v. Geary, 30 U. S. 5 Pet. 99 (8:60); Barlow v. Ocean Ins. Co. 4 Met. 270; Durham v. Wadlington, 2 Strobb. Eq. 258; Lost Bond Cases, 15 S. C. 232; Jasper County v. Ballou, 103 U. S. 745 (26:422). Mr. Joseph H. Earle, Atty-Gen. of South Carolina, for defendant in error: A sovereign State cannot be sued in its own courts except by its consent. Memphis & O. R. R. Co. v. Tennessee, 101 U. S. 337 (25:960); South & N. Ala. R. R. Co. v. Alabama, Id. 835 (25:973). Changes in the form of action and modes of proceeding do not amount to an impairment of the obligation of a contract, if an adequate and efficacious remedy is left. Mason v. Haile, 25 U. S. 12 Wheat. 370 (6:660) Bronson v. Kinzie, 42 U. S. 1 How. 311 (11:143); Von Hoffman v. Quincy, 71 U. S. 4 Wall. 535 (18:403); Drehman v. Stifle, 75 U. S. 8 Wall. 595 (19:508); Gunn v. Barry, 83 U. S. 15 Wall. 611 (21:212); Walker v. Whitehead, 83 U. S. 16 Wall. 314 (21:357); Terry v. Anderson, 95 U. S. 628 (24:365); Tennessee v. Sneed, 96 U. S. 69 (24:610); Louisiana v. Pilsbury, 105 U. S. 278 (26:1090). The Act entitled "An Act to Facilitate the Collection of Taxes", approved Dec. 24, 1878, 16 Stat. 785, does not authorize the plaintiff in error to bring this suit. The vouchers upon which the consolidation bonds above mentioned were based were not valid debts of the State. Cooley, Const. Lim. 143, Fletcher v. Peck, 10 U. S. 6 Cranch, 128 (3:175). The established settled construction given by 127 U. S. U. S. Book 32. 9 U. S. 222 (28:129). Mr. Justice Matthews delivered the opin- [226] ion of the court: This action is not brought against the defendant in his individual capacity for a trespass or wrong alleged to have been committed by him as a natural person upon the property or personal rights of the plaintiff; it is brought against him in his official capacity as Treasurer of the County of Charleston, to recover judg ment for a sum of money voluntarily paid by the plaintiff, though under protest; demanded and received by the defendant in his official capacity, contrary, as the plaintiff alleges, to law. The judgment sought is not a personal judgment against the defendant, but for a judicial declaration that the money paid was wrongfully and illegally collected, and ought to be refunded in order that a certificate of record thereof may be issued accordingly, to the end that the amount might be repaid out of the state treasury. The action is founded expressly on the provisions of the Act of the General Assembly of the State of South Carolina, approved December 24, 1878, entitled "An Act to Facilitate the Collection of Taxes." The first section of that Act provides: "That in all cases in which any State, county, or other taxes are now or shall hereafter be charged upon the books of any county treasurer of the State against any person, and such treasurer shall claim the payment of the taxes so charged or shall take any step or proceeding to collect the same, the person against whom such taxes are charged or against whom such step or proceeding shall be taken shall, if he conceives the same to be unjust or illegal for any cause, pay the said taxes notwithstanding, under protest, in such funds and 129 [227] The Supreme Court of South Carolina, in rendering the judgment now under review (21 S. C. 560), referred in its opinion to the legis lation of the State on the subject of its bonded indebtedness, an abstract of which is given in the pleadings, beginning with the Joint Resolution adopted June 8, 1877; and declared that it "was manifestly designed to ascertain judicially, by the rules and principles of law which regulate contracts between individuals, what was the valid debt of the State, and to make ample provision for the prompt and punctual payment of the interest on the debt so ascertained." After tracing the history of this legis lation, and of the judicial and other proceedings taken thereunder, the opinion of the Supreme Court of South Carolina proceeds as follows: moneys as the said county treasurer shall be same: Provided, That such taxes shall be so paid authorized to receive by the Act of the General within sixty days from the passage of this Act; Assembly levying the same; and, upon such and any person so paying the same may do payment being made, the said county treasurer so under protest, and thereupon shall be enshall pay the taxes so collected into the state titled to all the benefits of the remedy provided treasury, giving notice at the time to the comp-in section 1 of this Act." troller-general that the payment was made under protest; and the person so paying said taxes may at any time within thirty days after making such payment, but not afterwards, bring an action against the said county treasurer for the recovery thereof in the court of common pleas for the county in which such taxes are payable; and if it be determined in said action that such taxes were wrongfully or illegally collected, for any reason going to the merits, then the court before whom the case is tried shall certify of record that the same were wrongfully collected and ought to be refunded, and thereupon the comptroller-general shall issue bis warrant for the refunding of the taxes so paid, which shall be paid in preference to other claims against the treasury: Provided, That the county treasurers shall be required to receive jury and witness tickets for attendance upon the circuit courts of the State receivable for taxes due the county in which the said services are rendered." The second section of the Act prohibits any other remedy "in any case of the illegal or wrongful collection of taxes or attempt to collect taxes, or attempt to collect taxes in funds or moneys which the county treasurer shall be authorized to receive under the Act of the General Assembly levying the same, being other than such as the person charged with said taxes may tender or claim the right to pay, than that provided in section 1 of this Act." It expressly provides that "no writ of mandamus shall be granted or issued from any court, or by the judge of any court, directing or compelling the reception for taxes of any funds, currency, or bank bills not authorized to be received for such taxes by the Act of the General Assembly levying the same;" and directs that "no writ, order, or process of any kind whatsoever, staying or preventing any officer of the State charged with a duty in the collection of taxes from taking any step or proceeding in the collection of any tax, whether such tax is legally due or not, shall in any case be granted by any court, or the judge of any court, but in all cases whatsoever the person against whom any taxes shall [228] stand charged upon the books of the county treasurer shall be required to pay the same in such funds and moneys as the said county treasurer shall be authorized to receive by the Act of the General Assembly levying the said taxes, in manner and form as above provided, and thereupon shall have his remedy under the provisions of the first section of this Act, and in no other manner." The third section of the Act is as follows: "That in all cases in which any person against whom any taxes stand charged upon the books of any county treasurer of the State has here tofore tendered in payment of the same any funds, currency, or bank bills, other than such as the said treasurer was authorized to receive by the Act of the General Assembly levying said taxes, the said treasurer shall receive from such person the said taxes without penalty in funds or moneys authorized to be received by the Act of the General Assembly levying the "In pursuance of these provisions, a very large amount of the original consolidation bonds, which were colored green and are usu ally designated as green bonds or 'green consols,' were exchanged for the new consolidation bonds, colored brown, and are usually designated as 'brown bonds' or 'brown consols,' and represent the valid, unquestioned debt of the State, the coupons on which are received for taxes or are promptly paid on presentation. But as it was impossible to tell whether a 'green bond' represented in whole or in part, and, if so, what part, any portion of the valid debt of the State, without an examination of the records of the office of the treasurer of the State, where the various reports of the special commissioner above mentioned were filed, the various county treasurers of the State are not allowed to receive the coupons of the 'green bonds' in payment of taxes until they have been examined, and any invalidity which they may contain eliminated, and the valid portion converted into 'brown bonds.' "It seems, therefore, that the scope and effect of this legislation was not to impair the obligation of any contract entered into by the State with its bondholders, whereby the State had agreed to receive the coupons of certain bonds in payment of taxes, but was simply to provide a mode of proceeding by which it could be definitely and easily ascertained whether a coupon offered in payment of taxes represented any portion of the valid debt of the State; for, unless it did, there certainly was no contract on the part of the State that it should be received in payment of taxes."***"It cer tainly cannot be pretended that because a taxpayer tenders in payment of his taxes a coupon of a bond purporting to be a consolidation bond of the State, colored green, that the State and its fiscal officers are bound to receive it without question as to whether it is valid or invalid; and as the State cannot be sued except with its own consent, and then only in the mode which it permits, it follows necessarily that the only mode by which validity of the coupon offered in payment of taxes can be tested is that which has been prescribed by the State." In answer to the objection that the present [229] plaintiff was not a party to any of the actions | payable during the year 1882, on the valid coninstituted in the court of claims to test the solidation bonds of this State, known as 'brown validity of his bonds, and that he is not bound bonds,' as required to do by the 7th section of by any adjudication therein, the opinion says: the 'Act to Raise Supplies and Make Appropria[230] This position might possibly be very well tions for the Fiscal Year Commencing Novemmaintained if the defense here was based sim- ber 1, 1881,' approved February 9, 1882 (17 ply on the doctrine of res adjudicata; but that is Stat. 1070). Practically this last mentioned Act not the ground upon which the defense rests. forbids county treasurers from receiving in The true ground is, that, as the State could not payment of taxes any coupons of bonds which be sued except with its own consent, and then have not been ascertained in the manner preonly in the mode which it had seen fit to pre- scribed by the legislation herein before menscribe, and as the State did prescribe a mode by tioned to be valid obligations of the State. which it could be sued, and the validity of its Now, if, as we have seen, the State had the debt tested upon the same principle by which right to prescribe the mode by which the validthe contracts of individuals are tested, and hav-ity of any bond purporting to be an obligaing invited all persons having claims against it, tion of the State should be tested and deterwhose claims were disputed, to come in and mined, and if, as we have also seen, such mode assert and establish their claims, one who has was prescribed, and the validity of all the varifailed to avail himself of the opportunity thus ous classes of bonds purporting to be obligaoffered cann ot afterward, in another proceed- tions of the State was passed upon and finally ing, not permitted by the State, maintain an ac- determined, it would seem to follow necessarition against the State or against any of its offi-ly that the State had a perfect right to forbid cers for refusing to do that which the laws of its officers charged with the collection of its the State forbid." revenue from receiving in payment of taxes any coupons or other form of obligation which had not only not been adjudged to be a valid obligation of the State, but which, on the contrary, had been expressly adjudged to be invalid. There certainly can be nothing illegal or wrongful in an officer of the State yielding [232] obedience to a law of the State passed in the usual form, in pursuance of a judgment of its highest judicial tribunal, from which there had been no appeal to the tribunal of last resort, though express provision had been made for such appeal.' The Supreme Court of South Carolina then proceeds to examine the contention on the part of the plaintiff, that the Act of the 24th of December, 1878, entitled, "An Act to Facilitate the Collection of Taxes" (16 Stat. 785), expressly authorizes an action against the county treasurer when such coupons as his have been tendered for taxes and refused. Upon that point its opinion is expressed as follows: "This position is, we think, based upon a total misconception of the true meaning of that Act. It certainly never was designed to afford an opportunity to a bondholder to reopen the question as to the validity of any portion of the state debt, which it was supposed had been determined by the decision of this court in the 'Bond Debt Cases,' from which no intimation of appeal had been given. The very object of the legislation of the State herein before considered was, as we have seen, to obtain a final determination of the question of the validity of the state debt; and certainly the Legislature, by an Act passed nearly a year before such final determination was reached, never intended to afford the means of reopening any of the questions thus finally determined. In addition to this, the phraseology of the Act shows that it was never designed to afford a remedy to the bondholder in case his [231] coupons were refused when tendered for taxes, but was intended solely to afford a remedy in case bills of the bank of the State were refused when tendered for taxes. But even if it should be conceded that the terms of the Act to facilitate the collection of taxes were broad enough to cover a case in which coupons of bonds purporting to be bonds of the State are refused when tendered for taxes, as well as a case in which taxes are tendered and refused in other 'funds and moneys' than the collecting officers are authorized by the Act levying such taxes to receive, we do not see how these actions can be maintained. By the express terms of the Act it must be made to appear that the county treasurer has illegally and wrongfully refused to receive payment of the taxes assessed against the plaintiff in anything else but gold and silver coin, United States currency national bank notes, and coupons which shall become After having thus decided that the present action was not maintainable under the provisions of the Act of December 24, 1878, the Supreme Court of South Carolina proceeds to review the grounds of its prior decisions in the Bond Debt Cases, 12 S. C. 263, 294, and restates and reaffirms the same, going at large into the question of the validity of the bonds held by the plaintiff as obligations of the State, adjudg ing them to be invalid. The conclusion follows and is declared that the Act of the General Assembly entitled "An Act to Raise Supplies and Make Appropriations for the Fiscal Year Commencing November 1, 1881," approved February 9, 1882, alleged by the plaintiff to be void as impairing the obligation of the State contained in the bonds and coupons, is a valid and constitutional law, and justified the defendant, as County Treasurer, in refusing to receive the coupons in payment of taxes when tendered. It thus appears that in point of fact the Supreme Court of the State of South Carolina in its opinion in this case passed upon the federal question sought to be raised by the plaintiff as the foundation of his case, and decided it adversely to him; but the analysis of the case which we have made shows clearly that the decision of that question was not necessary to the judgment. Before reaching that question the supreme court had already decided that the action of the plaintiff could not be sustained, according to the meaning of the provisions of the statute under which it was brought. The decision of that point was final, and was fatal to the plaintiff's right of recovery. That ques tion is not a federal question; it does not arise 233] [234] was presented for decision to the highest court Inasmuch, therefore, as the judgment of the The writ of error is accordingly dismissed for want of jurisdiction. under the Constitution of the United States, or | affirmatively not only that a federal question review that judgment is not within the prov- It is a well settled rule, limiting the jurisdic- ANNA E. CAMERON ET AL. Appts., v. [ASA HODGES ET AL. (See 8. C. Reporter's ed. 322-326). Jurisdiction of circuit courts-citizenship of par- 1. It is not sufficient, to give jurisdiction to a Columbia, can neither bring nor sustain a suit on 3. A distinct statement of the citizenship of the objection of the want of jurisdiction in the circuit 5. This court may reverse the decree of the court 6. Where it appears upon the face of the affidavit Argued April 5, 1888. Decided April 30, 1888. APPEAL from a decree of the Circuit Court the title to real estate. Reversed. The facts are stated in the opinion. court did, in fact, base its judgment on such The bill being on oath, the answer only makes an issue, and one witness will overturn it. McLard v. Linnville, 10 Humph. 163, Trabue v. Turner, 10 Heisk. 447. [322] |