In re Ayres
123 U.S. 443 (1887)

Annotate this Case

U.S. Supreme Court

In re Ayres, 123 U.S. 443 (1887)

In re Ayres

Argued November 14-15, 1887

Decided December 5, 1887

123 U.S. 443

Syllabus

It is well settled in this Court that while the exercise of the power of punishment for contempt of their orders by courts of general jurisdiction is not subject to review by writ of error, or by appeal, yet, when a court of the United States undertakes, by its process of contempt, to punish a man for refusing to comply with an order which that court had no authority to make, the original order being void for want of jurisdiction, the order punishing for contempt is equally void, and if the proceeding for contempt result in imprisonment, this Court will, by its writ of habeas corpus, discharge the prisoner.

Whether a state is the actual party defendant in a suit within the meaning of the Eleventh Amendment to the Constitution of the United States is to be determined by a consideration of the nature of the case as presented by the whole record, and not in every case by a reference to the nominal parties of the record. Osborn v. Bank of the United States, 9 Wheat. 738, 22 U. S. 857, explained and limited.

In order to secure the manifest purpose of the constitutional exemption guaranteed by the Eleventh Amendment, it should be interpreted not literally and too narrowly, but with the breadth and largeness necessary to enable it to accomplish its purpose, and must be held to cover not only suits brought against a state by name, but those against its officers, agents, and representatives where the state, though not named, is the real party against which the relief is asked and the judgment will operate.

If a bill in equity be brought against the officers and agents of a state, the nominal defendants having no personal interest in the subject matter of the suit and defending only as representing the state, and the relief prayed for is a decree that the defendants may be ordered to do and perform certain acts which, when done, will constitute a performance of an alleged contract of the state, it is a suit against the state for the specific performance of the contract within the terms of the Eleventh Amendment to the Constitution, although the state may not be named as a defendant, and conversely a bill for an injunction against such officers and agents to restrain and enjoin them from acts which it is alleged they threaten to do in pursuance of a statute of the state in its name and for its use

Page 123 U. S. 444

and which if done would constitute a breach on the part of the an alleged contract between it and the complainants, is in like manner a suit against the state within the meaning of that Amendment although the state may not be named as a party defendant.

The Court does not intend to impinge upon the principle which justifies suits against individual defendants who, under color of the authority of unconstitutional state legislation, are guilty of personal trespasses and wrongs, nor to forbid suits against officers in their official capacity either to arrest or direct their official action by injunction or mandamus, where such suits are authorized by law and the act to be done or omitted is purely ministerial, in the performance or omission of which the plaintiff has a legal interest.

A bill in equity was filed by aliens against the Auditor of the State pf Virginia, its Attorney General, and various Commonwealth attorneys for its counties seeking to enjoin them from bringing and prosecuting suits in the name and for the use of the state under the Act of its General Assembly of May 12, 1887, against taxpayers reported to be delinquent, but who had tendered in payment of the taxes sought to be recovered in such suits tax receivable coupons cut from bonds of the state. An injunction having been granted according to the prayer of the bill, proceedings were taken against the attorney general of the state and two commonwealth attorneys for contempt in disobeying the orders of the court in this respect, and they were fined and were committed until the fine should be paid and they should be purged of the contempt. Held that the suit was a suit against the State of Virginia within the meaning of the Eleventh Amendment to the Constitution of the United States, and was not within the jurisdiction of the courts of the United States; that the injunction granted by the circuit court was null and void; that the imprisonment of the officers of the state for an alleged contempt of the authority of the circuit court was illegal, and that the prisoners, being before this Court on a writ of habeas corpus, should be discharged.

The Virginia act of 1877 concerning suits to collect taxes from persons who had tendered coupons in payment contains no provision as to the tender, or the proof of it, or the proof of the genuineness of the coupon, which violates legal or contract rights of the party sued.

If the holder of Virginia coupons receivable in payment of state taxes sells them, agreeing with the purchaser that they shall be so received by the state, the refusal of the state to receive them constitutes no injury to him for which he could sue the state, even if it were suable, and cannot be made the foundation for preventive relief in equity against officers of the state.

On the 11th October, 1887, these petitioners each moved through his counsel for leave to file a petition for a writ of habeas corpus. On the 12th October, leave was granted, and the writs were ordered to be made returnable on Monday, the

Page 123 U. S. 445

17th October. On the return day, return having been made, the court directed the prisoners to be placed in the custody of the marshal of the court. The same day, a motion was made and argued to release them on bail and to fix a day for hearing. On the 18th October, the court ordered the prisoners to be released on their own recognizances, each in the sum of $1,000, and assigned the cause for argument on the 14th day of the next November.

The case for argument and decision, as stated by the court, was as follows:

"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. Avers, 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 District 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:"

"On Attachment for Contempt"

"

I

n the Circuit Court of the United States"

"for the Eastern District of Virginia"

"

I

n Re RUFUS A. AYERS"

" This matter came on this day to be heard upon the rule heretofore issued against Rufus A. Avers, 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 6th 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

Page 123 U. S. 446

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 four millions of dollars

Page 123 U. S. 447

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 taxpayers 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 taxpayers at a considerable advance on the price paid for them, many of which the complainants have sold to said taxpayers; 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 taxpayers 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

Page 123 U. S. 448

counterfeit and spurious coupons, the burden of proving the same being placed upon the taxpayer, 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 taxpayer 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 taxpayers 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 taxpayer 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 taxpayers 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,

Page 123 U. S. 449

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 taxpayers 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 taxpayers 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 taxpayer who has tendered coupons, and each commonwealth's attorney is going at once to institute the suits provided for by said Act of May 12, 1887, against persons holding coupons bought from your orators, as well as against all others, and they are informed and believe, and so charge, that in every case in which tenders of coupons have been made to the auditor of the state, who is Morton Marye (and many have been made to him), the said auditor, and Hon. R. A. Ayers, who is attorney general thereof, are about to institute the suits

Page 123 U. S. 450

which said act provides for their instituting, whereby all coupons which your orators have sold to Virginia taxpayers will be condemned as spurious, although they are all genuine coupons issued by the State of Virginia, and all her taxpayers will be intimidated and deterred from buying from your orators, and all others in the future, any more of said coupons."

It is further charged in an amended bill

"That acts of the General Assembly of the State of Virginia, which are repugnant to § 10 of Article I of the Constitution of the United States, commanded the treasurer of each county to levy on and sell the property of each taxpayer who has tendered coupons in payment of his taxes, and said acts also command said treasurers to return the real property of such taxpayers delinquent where no personal property can be found to be seized and sold, and your orators charge therefore that unless said officers are enjoined from bringing said suits hereinbefore described, the treasurer of each county will proceed to execute said other unconstitutional acts by levying on such taxpayer's property or by returning the same delinquent where no personal property can be found, thus creating a cloud upon the title of such taxpayer's property."

The prayer of the bill is that

"The said Morton Marye, Auditor of Virginia, R. A. Ayers, the Attorney General thereof, and the treasurer and commonwealth's attorney of each county, city, and town in the State of Virginia may be made parties defendant hereto, and that they, their agents and attorneys, may be restrained and enjoined from bringing or commencing any suit provided for by said Act of May 12, 1887, or from doing any other act to put said statute into force and effect, and that until the hearing of a motion for said injunction, a restraining order may be made to that effect,"

and for general relief.

The Act of May 12, 1887, set out as an exhibit to the bill, is as follows:

Page 123 U. S. 451

"An act to provide for the recovery, by motion, of taxes and certain debts due the commonwealth for the payment of which papers purporting to be genuine coupons of the commonwealth have been tendered. (Approved May 12, 1887.)"

"1. Be it enacted by the General Assembly of Virginia that all taxes, including taxes on licenses, now due or which may hereafter become due to the commonwealth in payment of which any paper of instrument purporting to be a coupon detached from a bond of this state shall have been or may here after be tendered and not accepted as payment and not otherwise paid may be recovered in the circuit court having jurisdiction over the county or corporation in which said taxes shall have been assessed or, if the tender was made to the auditor of public accounts in payment of taxes which he is authorized by law to receive, the said taxes may be recovered in the Circuit Court of the City of Richmond."

"2. The court shall have jurisdiction without regard to the amount of the taxes claimed, and though the amount be less than twenty dollars."

"3. The proceeding shall be by motion, in the name of the commonwealth, on ten days' notice, and shall be instituted and prosecuted by the attorney for the commonwealth or corporation in which the proceeding is, or, if it be instituted by direction of the auditor of public accounts, in the Circuit Court of the City of Richmond."

"4. The notice may be served in any county or corporation in the state in the mode prescribed by the first section of chapter one hundred and sixty-four of the Code (edition of eighteen hundred and seventy-three), or it may be served on any agent of the defendant in the county or corporation in which the proceeding is, and the word 'agent,' as here used, shall include any person who shall have made the tender aforesaid on behalf of the defendant, or if there be no known agent of the defendant in the said county or corporation, it may be served by the publishing the same one time in some newspaper printed in the county or city where the tax was assessed; or if there be no paper printed in such county

Page 123 U. S. 452

or city, then in some newspaper published in some county or city nearest to the county or city where such tax was assessed."

"5. The motion may be tried or heard by the court or jury as motions in other civil cases. If the defendant relies on a tender of coupons as payment of the taxes claimed, he shall plead the same specifically and in writing, and file with the plea the coupons averred therein to have been tendered, and the clerk shall carefully preserve them. Upon such plea filed, the burden of proving the tender and the genuineness of the coupons shall be on the defendant. If the tender and the genuineness of the coupons be established, judgment shall be for the defendant on the plea of tender. In such case, the clerk shall write the word 'proved,' and thereunder his name in his official character, across the face of the coupons, and transmit them, together with a certificate of the court that they have been proven in the case, to the auditor of public accounts, who shall deliver the coupons to the second auditor, receiving therefor the check of the second auditor upon the treasurer, which check he shall pay into the treasury to the credit of the proper tax account."

"6. If the defendant fails in his defense, and the taxes claimed are found to be due the state, any coupon filed by him with a plea of tender (and not spurious) shall be returned to him, and there shall be judgment for the commonwealth for the aggregate amount of the taxes due, and the interest thereon from the time they became due till the date of the judgment, with interest on the said aggregate amount from the date of the judgment until payment, and costs."

"7. No antecedent lien of the commonwealth for the taxes for which any judgment is rendered shall be deemed to be merged in the judgment or otherwise impaired by the recovery of the same, but such lien shall continue in force notwithstanding the judgment."

"8. Every such judgment shall be docketed as prescribed by law in other cases, and the clerk shall issue execution thereon, directed to the sheriff of any county (or sergeant of any city), who shall account for the money collected thereon to the auditor of public accounts. "

Page 123 U. S. 453

"9. Should coupons be tendered the officer in satisfaction of said execution, he shall note the fact of such tender upon the execution, and return it to the clerk's office, and thereupon the auditor of public accounts may direct an action to be brought upon the judgment. This action shall be instituted and prosecuted in the mode herein prescribed for actions to recover judgments for taxes, and similar actions may be instituted whenever coupons are tendered in satisfaction of any judgment obtained by the commonwealth under the provisions of this act."

"10. The clerk of the court in which any such judgment is rendered in behalf of the commonwealth shall, as soon as it is rendered, transmit a certified abstract thereof to the auditor of public accounts, who shall record the same in a book to be kept for that purpose."

"11. Immediately after the passage of this act the county and city treasurers, and all other officers authorized by law to collect or receive money for taxes due the commonwealth, including the license taxes, shall report to the commonwealth's attorneys of their respective counties and cities, and also to the auditor of public accounts, the names of all persons assessed or liable therein for taxes due the commonwealth who have heretofore tendered (otherwise than for identification and verification) coupons for such taxes, and which taxes remain unpaid, the amount of the taxes due, on what account, and when they become payable, and a description, as far as possible, of the coupons tendered, and when tendered, and they shall thereafter make like reports whenever and as soon as any such tender may be made. As soon as the auditor of public accounts shall receive such reports, he shall credit the proper officer with the taxes named therein for which coupons were tendered."

"12. The attorneys for the commonwealth and the Attorney General, when it is his duty under this act to represent the commonwealth in any case in the Circuit Court in the City of Richmond, upon such report being made to them or whenever they are otherwise informed of any such tender having been made, shall forthwith institute and prosecute such proceedings as are hereinbefore required. "

Page 123 U. S. 454

"13. In any case instituted under the provisions of this act in which there is a judgment for the commonwealth, a fee of ten dollars shall be allowed the attorney for the commonwealth or the Attorney General, as the case may be, which fee and fees of the clerk and other officers for services rendered in the case, as well as such other costs as are allowed by law in other cases in which the commonwealth is a party, shall be taxed in the costs against the defendant. The commonwealth shall not be liable for any fees or costs in any proceedings under this act."

"14. If any officer fail to perform any duty required of him by this act, he shall be fined not less than one hundred dollars, nor more than five hundred dollars."

"15. This act shall be in force from its passage."

On this bill the following order was made:

"Circuit Court of the United States for the Eastern District of Virginia"

"James P. Cooper, H. R. Beeton, F. J. Burt, N. J."

"Chinnery, W. M. Chinnery, F. P. Leon, and"

"W. G. Woolsgon"

"against"

"Morton Marye, Auditor, R. A. Ayers, Attorney General,"

"the Treasurers of Counties, Cities, and Towns in"

"Virginia, and the Commonwealth Attorneys of Counties,"

"Cities, and Towns in said state, whose names"

"complainants have leave to insert as they may be"

"discovered"

"Upon reading the bill of the complainants, it is ordered that Morton Marye, Auditor, R. A. Ayers, Attorney General, each and every treasurer of a county, city, or town in the State of Virginia, and each and every commonwealth attorney for a county, city, or town in said state, be restrained from bringing or commencing any suit against any person who has tendered the State of Virginia's tax receivable coupons in payment of taxes due to said state, as provided for and directed by the Act of the Legislature of Virginia approved May 12, 1887, described in the bill, and of which a copy is attached

Page 123 U. S. 455

thereto, and that each and all of said parties, their agents and attorneys, be restrained from doing any act to put said statute into force and effect until the further order of the court."

"And it is ordered that the motion for an injunction in this case be set down for hearing at the Circuit Court of the United States at Richmond, Virginia, on the first Monday in October next, provided that the Attorney General of the State of Virginia or either of the defendants may move the court for an earlier hearing thereof after ten days' written notice to the solicitor of the complainants, and provided further that a copy of this bill and of this order be served on the Attorney General of the State of Virginia within ten days after the filing thereof."

"June 6, 1887."

A copy of this order, together with a copy of the bill, was served on the petitioner Ayers, the Attorney General of Virginia, on June 7, 1887.

On October 8, 1887, the following proceedings took place, viz.,

"And now at this day, to-wit at a Circuit Court of the United States for the Eastern District of Virginia held at Richmond, in said district, this eighth day of October, A.D. 1887:"

"J. P. Cooper and others"

"against In Equity"

"Morton Marye, Auditor, etc., and others"

"This cause came on this day to be heard upon the motion of the complainants for a preliminary injunction, and was argued by counsel, upon consideration whereof it is adjudged, ordered, and decreed, for reasons stated in writing and made part of the record, that the injunction be issued as prayed in the bill, and remain in force until the further order of the court."

"HUGH L. BOND"

"Circuit Judge"

"Thereupon the complainants, by counsel, called the attention of the court to the fact that the defendant R. A. Ayers, Attorney General of the State of Virginia, was guilty of

Page 123 U. S. 456

contempt by his disobedience of the restraining order issued in this cause on sixth day of June, 1887, and the said R. A. Ayers, being called upon to answer in this behalf, filed in open court his answer in writing, which answer is in the words following to-wit:"

"Answer of Defendant R. A. Ayers"

"The answer of R. A. Ayers, Attorney General of the State of Virginia, to a rule awarded against him by this Honorable Court."

"To the Honorable Judge of the Circuit Court of the United States for the Eastern District of Virginia:"

"By an order entered in the chancery cause of James P. Cooper et als. against Morton Marye and others, summoning him to show cause why he should not be fined and imprisoned for disobeying the injunction heretofore awarded in said suit, restraining him and others from instituting the suits required by an act of the General Assembly of Virginia entitled"

"An act to provide for the recovery by motion of taxes and certain debts due the commonwealth, for the payment of which papers purporting to be genuine coupons of the commonwealth have been tendered,"

"approved May 12, 1887, by instituting a suit against the Baltimore and Ohio Railroad Co., respondent, answering, says that he admits that he instituted the suit against the Baltimore and Ohio Railroad Company to recover taxes due by it to the State of Virginia after he had been served with the injunction order in this case; that he instituted the said suit because he was thereunto required by the act of the General Assembly of Virginia aforesaid and because he believed this Court had no jurisdiction whatever to award the injunction violated. Respondent disclaims any intention to treat the court with disrespect, and states that he has been actuated alone with the desire to have the law properly administered."

"R. A. AYERS"

"Atty.Gen. of Virginia"

"Subscribed and sworn to before me this eighth day of October, 1887."

"M. F. PLEASANTS, Clerk"

Page 123 U. S. 457

And thereupon the order was made adjudging the petitioner guilty of contempt by his disobedience of said order and requiring him forthwith to dismiss the suit of The Commonwealth v. The Baltimore and Ohio Railroad Company instituted by him in the Circuit Court of the City of Richmond fining him $500 for his contempt and directing that he stand committed in the custody of the marshal of the court until the same be paid, and he purge himself of his contempt by dismissing said suit last mentioned.

In the same case, the proceedings resulting in the commitment and imprisonment of the petitioner John Scott are as follows:

On August 23, 1887, on affidavit showing that John Scott, attorney for the commonwealth for Fauquier County, Virginia, had been served with a copy of the restraining order of June 6, 1877, and that in violation thereof he had brought certain suits against parties in said county for the recovery of taxes alleged to the due by them to the State of Virginia for the year 1886, for which they had previously tendered tax receivable coupons, said actions being brought under the Act of the General Assembly of May 12, 1887, a rule was entered upon the said Scott to show cause, on September 22, 1887, why he should not be attached for contempt. On that day, the said Scott answered the rule, justifying his action on the ground that the order which he had disobeyed was void for want of jurisdiction in the circuit court to make it. On September 24, 1887, in pursuance of leave given, the complainants filed an amendment to their bill making Scott, as attorney for the commonwealth for said County of Fauquier, a formal party defendant and alleging that a judgment had been rendered against the defendant in each of the suits brought by the said Scott under the said act, a list of which, with the amounts of the several judgments, was set out. Thereupon, on October 8, 1887, the following order was made:

"The court therefore doth adjudge, order, and decree that, for his contempt of this Court, said John Scott do pay a fine of $10, and dismiss the cases which he has brought in the Circuit Court of Fauquier County, Virginia, in violation of the

Page 123 U. S. 458

restraining order heretofore made in the cause of Cooper and others v. Marye and others on the 6th day of June, 1887, and further that he enter satisfaction of the judgments heretofore obtained by him against the defendants in said causes, and that he stand committed to the custody of the marshal of this Court until this order is obeyed and the fine hereby imposed upon him is paid. And it is further ordered that the said John Scott do pay the costs of these proceedings."

Similar proceedings were had in respect to J. B. McCabe, the commonwealth's attorney for Loudoun County, Virginia, the other petitioner. On July 11, 1887, an order was entered granting a rule against him to show cause why he should not be attached for an alleged contempt of the court in disobeying the restraining order made in the cause on June 6, 1887. Upon proof by affidavit that the said McCabe, as such attorney, had commenced proceedings under the Act of May 12, 1887, to recover taxes alleged to be due to the State of Virginia from certain parties therein named, who had previously tendered tax receivable coupons in payment thereof, he answered the rule denying the validity of the order which he had violated, and thereupon, on October 8, 1887, the matter coming on to be heard, it was ordered and adjudged by the court

"That the said J. B. McCabe is guilty of contempt in his disobedience of said order, and that he do forthwith dismiss all suits under the Act of May 12, 1887, now pending in the Circuit Court of Loudoun County. And the court doth further order and adjudge that the said J. B. McCabe, for his said contempt, be fined $100; that he be taken into the custody of the marshal of this court and by him held until the said fine be paid and he purge himself of the said contempt by dismissing the suits brought or prosecuted in violation of the restraining order of this court, and that he pay the costs of these proceedings. "

Page 123 U. S. 485

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