dissenting.
After much reflection as to my duty in these cases, I feel constrained to dissent from the judgment of the Court. I do not think the decision of the Supreme Court of the United States in the case of Walker vs. Whitehead, controls or should control any other case than that in which it was pronounced.
*129As a general rule, it is the duty of a Court, from whose judgments there is an appeal, to conform to what it has good reason to know will be the judgment of the appellate tribunal. It is also generally true, that a judgment in a similar case is good evidence of what will be the holding in other cases. For this reason I have not hesitated to conform my judgment in the slave debt cases, and in the homestead cases, to the opinions announced by the Supreme Court of the United States, in the two cases in which the laws of this State on those matters were declared unconstitutional, though I thought those opinions wrong. I think, however, the opinion of that Court, in the case of Walker vs. Whitehead, in which the validity of the Act of October 13th, 1870, in relation to the payment of taxes was questioned, does not stand on the same footing.
The jurisdiction of the Federal Court, by writ of error from a State Court, is, under the Constitution and laws, of a very limited character. Indeed, it exists, but for one purpose and upon one point — to-wit: when a State Court has given a judgment claimed to be contrary to the Constitution of the United States or to a law of Congress, in conformity with the Constitution. In the exercise of that jurisdiction the Court is confined to that question; and however wrong the judgment of the State Court may be on other points of the case, unless in giving the judgment, it has enforced a principle in violation of the Constitution, or contrary to an Act of Congress, the uniform rule of the Supreme Court is not to interfere. The jurisdiction rests upon the duty and the right of the proper branches of the Federal Government to enforce the Federal Constitution and the laws of Congress, passed in pursuance of it. It does not arise by virtue of any abstract power to declare a State law unconstitutional; but it turns upon the duty of the Court to reverse a judgment which is contrary to the Constitution and laws of the United States. Nor does it make any difference whether that judgment is based on a State statute or on a principle of the common law, or what not, still, if the State Court has, by any judgment it *130has made, violated the Constitution, or gone contrary to an Act of Congress, the jurisdiction arises. It follows from the very nature of the jurisdiction, therefore, that the construction given by the State Court to a State law is the very essence of the jurisdiction of the Federal Court. Its power to interfere is not against the law, but against the construction of the law by the State Court.
However plainly it may appear to the Supreme Court of the United States that the words of a State law contravene the Federal Constitution or Act of Congress, yet if the State Court has only enforced it under a construction which does not contravene the Federal law, the Federal Court cannot interfere. It may be added, though, this is only a necessary corollary from the nature of things, that the construction of the State law is with the State and not with the Federal Court.
To apply these principles to the case in hand. The Act of October 13th, 1870, enacted “that in all suits pending on a certain class of debts, it should be the duty of the plaintiff within six months after the date of the Act, to file an affidavit that all legal taxes due upon the debts sued on had been duly paid for each year since the making of the debt, and it provides that if this affidavit was not filed, the suit should be dismissed.”
It is obvious that if this Act intended to say that if the plaintiff failed to swear that he had, at the proper time required by law, during the past year, paid the taxes, his case should be dismissed, it might be very positively said that here was a penalty for failing to do an act, which, at the time of the failure, had no such penalty. But it is equally obvious that if the Act means to give to the plaintiff six months, within which he may pay the tax, if he has not paid it; if the Act is to be construed to mean that all legal taxes have been duly paid at the time the affidavit is filed, the question would be a very different one. This Court gave the Act the latter construction. The opinion of the Court in Walker vs. Whitehead assumes this Court to have given it the former. In its decisions upon that Act, this Court has uniformly held that *131the Act was not retrospective; that under our Code, section 866, any tax payer might give in and pay taxes due for former years, but not given in and paid at the proper time; that the Act of October 13th, 1870, only operated against those who failed and refused, after the passage of the Act, to pay to the State the taxes due, and that any person might, after the passage of the Act, pay the tax, and if he did so, he was not affected by the Act. And so construing and so enforcing the Act, we held it not in violation of the Constitution of the United States, that it was not an ex post faoto law, or law impairing the obligation of contracts, because it gave to all persons affected by it a full and fair opportunity to pay the taxes and escape the operation of the law.
Had the opinion of the Court in Walker vs Whitehead declared that the Act of October 13th, 1870, was unconstitutional, even with this construction upon it, I should not have a word to say. I might think the judgment wrong, but I should conform to it, because upon such questions the Supreme Court is an appellate tribunal from this Court.
But the opinion in Walker vs. Whitehead does not do this. The Court in that case, ignoring entirely the construction this Court put upon that Act, puts a construction of its own upon it, and declares, with that meaning put upon it, the Act is unconstitutional, as it is in the nature of an ex post facto law. I am satisfied that this opinion of the Supreme Court was not made with a knowledge upon the part of the Court, of our tax laws, or of the construction put by this Court on the Act of October 13th, 1870.
It is well known as a fact that the case was not argued for the defendant in error. It is, besides, a settled rule of the Supreme Court that in such cases it will only pass upon the validity of the law, as construed by the State Courts, and that it holds itself bound by that construction. And this, not only because it is a proper rule, but because, by the Constitution and laws of the United States, the Supreme Court has no jurisdiction to pass upon a State law as an abstract thing, but only on such laws as they are expounded and enforced by the *132State Courts. The jurisdiction arises not upon the law, but upon its enforcement and upon the construction given to it by the State tribunals. It is not the custom of the Supreme Court of the United States, nor has it the legal or constitutional right to go behind the construction given to a State law by the State Courts to find a meaning to a law, and then to determine that as said law has such a meaning, it is void. If a question arises as to what a contract is — as, for intance, a charter — either Court will, m such cases, eonstrue the law. But as to what is the meaning and proper construction of the law which is claimed to impair the contract, the construction of the State Court is conclusive. And this, as I have said, both because this is a proper rule and because the jurisdiction of the Federal Court is not over the law but over the enforcement of it.
Believing, therefore, as I do, that the decision in Walker vs. Whitehead, quoted here as binding authority was made without argument, and upon a construction of the Act of October 13th, 1870, already repudiated by this Court, and never in any case enforced by it; and, believing, as I also do, that if the case was properly presented the question really involved would be differently decided, I think this Court should adhere to its former ruling in these cases until the Act of 1870, as construed and enforced by this Court, is declared void.
The above decision disposed of the following cases, all of them involving the same question :
George Winston, administrator, vs. L. Gambrill; Charlotte Stallings vs. W. S. Chipley; The Central Railroad and Banking Company vs. H. S. Smith; M. E. Beall, executrix, vs. Buckner Beasley; B. Gibson et al. vs. Buckner Beasley; Stephen Williams vs. Frances R. Leonard; Stephen Williams vs. The Mayor and Council of Columbus; George Winston, administrator, vs. L. J. Benning, administrator; Thomas B. Wooten vs. Winter’s Palace Mills; George Winston, administrator, vs. The Mayor and Council of Columbus; Stephen Williams vs. L. J. Benning, administrator; Solomon Adkins *133vs. E. Flewellen, administrator, et al.; Robert A. Lane vs. E. Flewellen, administrator, et al.; Chapman & Threewits vs. L. J. Benning, administrator, et al.; Chapman & Three-wits vs. F. R. Leonard, administratrix; George Winston, administrator, vs. Francis R. Leonard, administrator; Chapman & Threewits vs. The Mayor and Council of Columbus; Andrew Park et al. vs. L. J. Benning, administrator, et al.; George Winston, administrator, vs. Frances R. Leonard, executrix; Thomas F. Brown vs. Amanda Robinson, administratrix — all from Muscogee county. Thomas Jones vs. Abner Snelson et al., executors; V. A. Gasbill vs. Jesse Partridge et al.; William Warren vs. William F. Morris et al.; John R. Jones vs. Charles Tillman et al — all from Meriwether county. John P. Key vs. R. A. Reid, administrator, from Putnam county.