dissenting, said :
I dissent from the opinion of the court in this case on two grounds. The first is that, even if it were conceded that the court below was without jurisdiction, the case is prematurely here. Ho question as to the jurisdiction was raised in that court, and consequently no case is now made for issuing the writ prayed for. At common law, to authorize a prohibition to an inferior court, it was not only necessary that a formal plea to the jurisdiction should have been tendered in that court, but it *635must have been tendered before imparlance. And the common law rule, says High, is generally* applicable in this country, though not, I apprehend, in all its ancient strictness. At all events, it is well settled that where there has been no effort made to obtain relief in the court which it is sought to prohibit, the superior courts will refuse to exercise their jurisdiction by this extraordinary remedy. “For example,” says the same author, “where an injunction has been obtained in direct viola.tion of a statute, and without any jurisdiction on the part of the court (which is exactly the contention in this case), prohibition will not be granted to prevent the court from proceeding with the injunction suit, where no application has been made to dissolve the injunction.” High, Extr. Rom., section 773, and cases cited. And the obvious reason is, that prohibition is an extraordinary remedy, and therefore to he resorted to only in cases where the usual and ordinary forms of remedy are insufficient to afford redress. Id., section 770.
Nor is the rule in the remotest degree affected by the provision of the constitution of this State, which simply declares that this court “shall have appellate jurisdiction only, except in cases of habeas corpus, mandamus and prohibition.” That is all; and how these words can be construed as changing the rule above-mentioned, is more than I am able to comprehend.
Now, in the present case, not only was there no plea to the jurisdiction of the court below, but nothing appears in the record to show that the jurisdiction was objected to in any' manner. Nor was there any motion to dissolve the injunction which was awarded upon the filing of the bill. The record, it is true, recites that on a certain day the defendant “ moved the court to remove this cause to. the circuit court of the city of Richmond, to be therein finally heard and determined, which motion the court overruled.” But this motion, so far from challenging the jurisdiction of the court to entertain the suit, implies the contrary; for it is not based upon the ground that the court had no jurisdiction to entertain the suit originally, and therefore *636that the proceedings were void ab initio, as they clearly were if the theory of the majority be correct, but the application was that the suit, as a pending, valid one, be removed to another court, to be there finally heard and determined, without assigning any reason for the application whatever.
This, I take it, can no more be properly treated as a substitute for a formal plea to the jurisdiction than the motion of a citizen of another State, who is sued in one of our courts, to remove the cause to the circuit court of the United States for trial under the provisions of the act of Congress, can be considered as a plea to or denial of the original jurisdiction of the State court.'
But my second proposition is, that the court below had jurisdiction of the case, and that the circuit court of the city of Richmond had not, because the parties resided in Lynchburg, and the cause of action arose there. The Commonwealth, albeit her livery is sought to be worn by those who would deprive the complainant of his constitutional rights, has., no interest in the matter. The tender of the coupons (which upon this record are admitted to be genuine) in payment of the execution, was equivalent to actual payment thereof, so far as the purposes of this case are concerned, and, if there was payment or its equivalent, then there was no longer any execution to levy and none to enjoin. Hence the statute relating to the jurisdiction of the circuit court of the city of Richmond has no application. Upon payment, the interest of the Commonwealth in the matter ceased, and consequently the subsequent threatened levy was a threatened trespass, which the court below rightly enjoined. After the tender was made and refused, the officer to whom the execution was directed had no right to proceed further. He no longer represented the State, and had no interest of the State to protect, but became a wrongdoer, pure and simple. This I say, because it is in accord with a solemn decision of the supreme court of the United States, rendered upon a similar question, and by which decision I consider myself bound in this case.
*637In Poindexter v. Greenhow, 114 United States, 270, it was decided that it was the duty of the officer to receive the coupons tendered in that case by the tax-payer, and that his refusal to do so was an open breach of the contract of the State with the tax-payer by whom they were tendered. The tender, said the court (at page 299 of the report), “was equivalent to payment, so far as concerns the legality of all subsequent steps by the collector to enforce payment by distraint of his property. He has the right to say he will not pay the amount a second time, even for the privilege of recovering it back. And if he chooses to stand upon a lawful payment once made, he asks no remedy to recover back taxes illegally collected, but may resist the execution, and treat as a wrongdoer the officer who seizes his property to enforce it.”
That decision remains unreversed and in full force to day, and the language of the court above quoted is as applicable to this case as to that. The coupons tendered in this case were issued, as were the coupons tendered in that case, under the funding bill of 1871, and all bear upon their face the contract of the State to receive them “for all taxes, debts and demands due the State.” And I need hardly say that a judgment for costs is as much a debt as a demand for taxes.
Nor is it for me to say whether a decision of the supreme court upon a Federal question properly before it is right or wrong. It is sufficient for me that it has been rendered. And I will only add that the sooner it comes to be universally recognized that the Constitution of the United States is, as it purports to be, uthe supreme law of the land’’ and the authoritative decisions of the supreme court interpreting that instrument are respected as such, the better, in my opinion, it will be for the peace, prosperity and happiness of the whole nation. I think the petition should be dismissed.
Writ oe prohibition allowed.