.McCullough v. Virginia was one of a number of cases coming before the Supreme Court of the United States growing out of the attempt of the State of Virginia to avoid the acceptance, in payment of certain dues to the State, of interest coupons to certain of its bonds, which coupons by the law providing for the issuance and sale of the bonds, it had agreed so to receive. After various devices, extending through a considerable period of years, had one after another been frustrated by the decisions of the Supreme Court of the United. States declaring their unconstitutionality, during all of which time there had never been any question as to the constitutionality of the original law providing for the bonds and the acceptance by the State of the coupons in payment of public dues, and though the act had been repeatedly before the highest court of the State, that tribunal at last in McCullough v. Virginia declared that the coupon provision of the original act was in itself unconstitutional.

Inasmuch as the Virginia court in its decision did not consider the subsequent legislation of the State, but confined itself wholly to declaring the original act void, it was urged before the federal Supreme Court to which the case was brought on writ of error, that, by the decision of the state court, no subsequent legislative act had been applied, and, therefore, that the case was not brought within the rule stated in New Orleans Waterworks Co. v. Louisiana Sugar Co. and Bacon v. Texas.

65 159 U. S. 103; 10 Sup. Ct. Rep. 80; 40 L. ed. 91. 66 163 U. S. 273; 16 Sup. Ct. Rep. 1051; 41 L. ed. 157. 67 188 U. S. 10; 23 Sup. Ct. Rep. 263; 47 L. ed. 363. 68 172 U. S. 102; 19 Sup. Ct. Rep. 134; 43 L. ed. 382. 69 197 U. S. 544: 25 Sup. Ct. Rep. 522; 49 L. ed. 872.

That court, however, upheld its jurisdiction, saying: "It is true that the [Virginia] court of appeals in its opinion only incidentally refers to statutes passed subsequent to the act of 1871, and places its decision distinctly on the ground that the act was void in so far as it related to the coupon contract, but at the same time it is equally clear that the judgment did give effect to the subsequent statutes, and it has been repeatedly held by this court that in reversing the judgment of the courts of a State we are not limited to a mere consideration of the language used in the opinion, but may examine and determine what is the real substance and effect of the decision."

Whatever may have been the equities of the case, and regarding this there can be little doubt, the above reasoning seems scarcely satisfactory. Had there never been any subsequent legislation on the part of Virginia with reference to these coupons, the effect of the decision of the court of appeals of Virginia would have been exactly the same as that which in fact it did have, or rather would have had, had its judgment been affirmed. It is, therefore, difficult to see how its execution would have put subsequent legislation into force. To be sure, the same result was reached as that which would have been obtained had the later laws been enforced, but, certainly the result was not reached through their enforcement.70