Statement of the Case.

legislature of South Carolina, approved December 24, 1892, Acts S. C. 1892, p. 81, which provided that the assessment of property for taxation should be deemed and held to be a step in the collection of taxes; that certain enumerated sections of the general statutes, thereby declared to be in full force and effect, should be construed to mean as giving full and complete power to the county auditor independent of any rights conferred on county boards of assessors, or other offi cers, in the matter of securing a full and complete return of property for taxation in all cases, and that the action of the auditor under those sections should not be interfered with by any court of this State by mandamus, summary process, or any other proceeding, but that the taxpayer should have the right to pay his tax on such return under protest, as now provided by law. Petitioner, therefore, insisted that an adequate remedy at law was given the taxpayer for unjust and excessive taxation, and that it was not competent for a court of the United States to grant the injunction in this case, any more than it would have been for a court of the State; that the receiver's possession is that of the court, only for the parties litigant in the suit, and to the extent only of the power to subject the property to the rights of suitors, subject to the paramount right of the State to tax the property according to its own laws; that the railway company was a citizen of South Carolina, and hence that the receiver, as plaintiff in his petition, represented a citizen of South Carolina, and proceeded against the petitioner Tyler, who was also a citizen of that State; that the amount involved was less than gives jurisdiction to the Circuit Courts of the United States; that, on the grounds indicated, the court had no jurisdiction, and its order was void; and that, therefore, the order of commitment and fine was void. In conclusion petitioner insisted:

"1st. That the injunction proceeding by the receiver is a suit against the State of South Carolina; that to enjoin the functionary is to forbid the function of the State to tax by its own laws and fix and assess its amount by its own procedure; and that your petitioner, as the officer charged with this state function, is sued by the receiver, which is in fact a suit against

Mr. Jones's Argument for Petitioners.

the State, and contrary to the Eleventh Amendment of the Constitution of the United States.

"2d. That under the laws of the United States and of the State the remedy of the owner or taxpayer is ample by proceeding at law, and he can have none in equity, which is denied by the statute of the State and on general principles of equity practice, and that the exigency which induced the appointment of a receiver does not in any respect change the legal aspect of the case, but makes the order of the court of the United States illegal, void and without jurisdiction.

"3d. That to fine and imprison your petitioner for action as a legal officer, under and according to the valid laws of South Carolina, is to deny the authority of the State itself, by making it impossible for the State to execute its laws by agents, except under penalties which the United States courts cannot impose as an obstruction to the functions of the State itself.

"Wherefore your petitioner insists that he is held in custody against law, and contrary to the Constitution of the United States, the supreme law of the land."

This case was argued with Nos. 16, 18 and 19 original, post, page 191.

Mr. Ira B. Jones, (with whom was Mr. Samuel Lord on the brief,) for the petitioners in all the cases.

I. While a proceeding by habeas corpus is a civil proceeding, Ex parte Tom Tong, 108 U. S. 556; Robb v. Connolly, 111 U. S. 624, contempt of court is a specific criminal offence, and the imposition of the fine is a judgment in a criminal case. New Orleans v. Steamship Co., 20 Wall. 387; Ex parte Kearney, 7 Wheat. 38. Ever since the case of Bollman v. Swartwout, 4 Cranch, 75, it has not been doubted that the Supreme Court has authority to issue habeas corpus where a person is in custody under the warrant or order of any court of the United States. The struggle since has been as to the extent of the inquiry the court could make into the causes of the commitment.

Mr. Jones's Argument for Petitioners.

Previous to the act of March 31, 1891, establishing the Circuit Court of Appeals, and defining the jurisdiction of the United States courts, it was settled that the Supreme Court, having no jurisdiction of criminal cases by writ of error or appeal, could not, on habeas corpus, examine into the sufficiency of the evidence on which the judgment and sentence of the court was founded, but could, and it was its duty to do so, discharge by means of habeas corpus any person imprisoned under sentence of any court of the United States, in a criminal case, where there was a want of jurisdiction or an excess of the jurisdiction, power or authority of the committing court in the judgment and sentence imposed. Ex parte Hamilton, 3 Dall. 17; Ex parte Bollman, 4 Cranch, 75; Ex parte Watkins, 3 Pet. 193, 7 Pet. 568; Ex parte McCardle, 6 Wall. 318, 7 Wall. 506; Ex parte Metzger, 5 How. 176; Ex parte Kaine, 14 How. 103; Ex parte Wells, 18 How. 307; Ex parte Milligan, 4 Wall. 2; Ex parte Kearney, 7 Wheat. 38; Ex parte Yerger, 8 Wall. 85; Ex parte Lange, 18 Wall. 163; Ex parte Parks, 93 U. S. 18; Ex parte Virginia, 100 U. S. 339; Ex parte Siebold, 100 U. S. 371; Ex parte Rowland, 104 U. S. 604; Ex parte Mason, 105 U. S. 696; Ex parte Curtis, 106 U. S. 371; Ex parte Carll, 106 U. S. 521; Keyes v. United States, 109 U. S. 336; Ex parte Yarbrough, 110 U. S. 651; Ex parte Crouch, 112 U. S. 178; Ex parte Bigelow, 113 U. S. 328; Ex parte Wilson, 114 U. S. 417; Ex parte Fisk, 113 U. S. 713; In re Ayers, 123 U. S. 443.

If, therefore, the act establishing Circuit Courts of Appeals, approved March 3, 1891, authorizes the Supreme Court to review on appeal by defendants in criminal cases, the judgment of the court below on such questions as are raised in the appli-' cation for habeas corpus in these cases, there seems to be no obstacle in the way now of this court in proper cases extending the uses of habeas corpus to an inquiry into the sufficiency of the evidence on which the judgment was founded and into errors of law beyond jurisdictional errors.

This sweeping change in the appellate jurisdiction of this court seems clearly to allow defendants in criminal cases a right to appeal direct to this court in such cases above provided.

Mr. Jones's Argument for Petitioners.

II. If, however, we are mistaken in this respect, and the inquiry is limited to jurisdictional errors, then we submit that the Circuit Court "has acted without jurisdiction, or has exceeded its powers to the prejudice of the party seeking relief,” In re Lane, 135 U. S. 443; because the sheriffs in making the levy for taxes were acting as the duly authorized law officers and representatives of the State of South Carolina, acting in obedience to the requirements of the valid laws of the State and the commands of a superior officer; and that since the State cannot be made a party to these proceedings without her consent, neither can her representatives. The test whether an officer of the State can be sued, is whether the officer is a trespasser. If the officer can justify his act under a valid constitutional law of the State, he is not a trespasser and is the representative of the State which cannot be sued without its consent. Virginia Coupon Cases, 114 U. S. 269; Hagood v. Southern, 117 U. S. 52. See also Cunningham v. Macon & Brunswick Railroad, 109 U. S. 446; Poindexter v. Greenhow, 114 U. S. 270, 288; Osborn v. United States Bank, 9 Wheat. 738; Davis v. Gray, 16 Wall. 203; Board of Liquidation v. McComb, 92 U. S. 531; United States v. Lee, 106 U. S. 196. III. We concede, in its fullest scope, the doctrine that property in the hands of a receiver appointed by a court is in the custody of the law and cannot be interfered with by a trespasser or to enforce a private claim, and that any such interference with the receiver's possession may be punished as a contempt of the court. Our contention is that receiver's possession is subordinate to the right of the State in the exercise of its sovereign power, in its own authorized way, to collect its taxes which are essential to its existence against all property within its jurisdiction.

This question came up before Mr. Justice Brewer in the case of Central Trust Co. v. Wabash, St. Louis &c. Railroad, 26 Fed. Rep. 11, in which a receiver prayed protection from the payment of a tax. Injunction to restrain tax collector was refused. The same question was presented to Mr. Justice Blatchford in Stevens v. Midland Railroad, 13 Blatchford, 104. The court denied the application of a receiver for

Mr. Tucker's Argument for Petitioners.

injunction against a tax officer. To exempt property in the hands of a receiver from summary seizures for taxes is: (1) Inconsistent with the power of taxation; (2) inconsistent with the revenue laws of the State in which it is situated; (3) contrary to the settled policy of the United States, which is, not to interfere with the revenue laws of the State; and (4) contrary to the spirit, if not to the letter, of Amendment XI to the Constitution.

The orderly administration of justice requires non-interference with property in the hands of the court, without the court's permission. This is a settled principle of law. On the other hand, it is just as clearly settled that the State is sovereign in the matter of her revenue laws which do not trench upon the federal Constitution, and that a summary collection of revenues, essential to the existence of the State, is necessary. When these principles conflict, which must yield? There can be no orderly administration of justice without government, and there can be no government without revenue. The power to tax, and the right to speedy process for its collection, must stand as the first cause, the bed-rock of the government, and any other power of government which conflicts with this must yield.

Mr. Hugh L. Bond, Jr., (with whom were Mr. Henry Crawford and Mr. J. S. Cothran on the brief,) for the respondents in the cases of Tyler, Gaines and Ryser, petitioners in Nos. 16, 17 and 18.

Mr. D. A. Townsend, Attorney General of the State of South Carolina, filed a brief for all the petitioners.

Mr. Joseph W. Barnwell for the respondent in No. 17, Tyler, petitioner.

Mr. John Randolph Tucker closed for all the petitioners.

In concluding the argument, I propose to insist, without waiving the other points on my brief, only on the point that the suit was in fact a suit against the State.