Southern Argus. [volume] (Columbus, Miss.) 1834-1842, 1842-06-07

The defendants in error instituted
suit against the plaintiffs in error on a
promissory note for the sum Of eight
hundred dollars, dated the IS of March
1888, land due nine months after the 10
Of April, 1889, negotiated and paya-
BILE at the banking house Of the Union
Bank, at Jackson. The defendants
below pleaded six special pleas, all of
which, for different reasons, bring d.
rectly in question the right Of the Union
Bank to recover on notes discounted
by the Bank Tor the accommodation
OF the makers. To all these pleas the
plaintiffs below demurred, and the
Court sustained the demurrers:the de-
PENDANTS falling to plead further. judg-
ment was rendered against them, TO re-
verse which this Writ Of Error is
brought.
Each plea presents distinct ques-
ton for the consideration Of the Court;
some Of them deny the constitutional
existence ofthe corporation, and others
set up a forfeiture Of the corporate ca
pacity, and deny the right Of recovery.
After few preliminary remarks,we
shall proceed to the several questions
which have been so ably and lengthlly
discussed on both sides. On the one
side it has commended hatthe bank char
ter is unconstitutional.-On the other
that the act Of 1910, requiring the
banks to resume specie payments or
forfeit their charters,i is unconstitutional.
1t j. at all times a delicate judicial duty
to declare an act Of the legislature UNI
constitutional. In doubtful eases this
should be avoided; but fan act be pal
pably unconstitutional, the question
should be met with frmness. The
constitution is the paramount law
the supreme rule--to which all others !
must yield, and it operates with equal
force on all the departments ofgovern-
ment. To the legislature belongs the
power Of making laws, and It's for the
judiciary to expound them. We
must presume that all laws were de-
signed for the public good; hence,w what
ever our opinions may be in regard to
the good or bad policy of law, we
must still sustain it, ifpossibIe. With
The consequences we have nothing to
DO. And the good or bad effects of
l law in its practical operation, can have
10 weight in deciding whether it be
constitutional, We must look at it as
t was made, and Judge il as it would
hen have been judged. We cannot
reat lightly that which the legislature
las solemnly determined to be polite
IND necessary, although it may have
become odious. Having promised
hus much, shall proceed in the mat
er presented in the several pleas, Ia
ling them up as they stand in the rec
,rd.
The substance Of the first plea is,
hat, on the 10th day Of July, 1910,
he holder Of a note often dollars, made
~ the Bank presented it at the Bank
md demanded payment in specie,
which payment the Bank was bound to
make according to the provisions
If the act of the 21st Of Februa-
y, 1910: that payment was refused,
which refusal being made known to
he Governor, as by the act was re-
1uired, and it appearing to him that
Mt had been made, and pay
ment refused, he issued his Proclama-
lion, declaring that all the banking
powers and privileges of the Union
Bank we're forfeited. The plea states
the facts which are said to constitute
the forfeiture Of the charter, and all
the facts That are we'll pleaded and ad-
mitted by the demurrer. The demur-
rer does not admit that the charter was
forfeited, but only the truth Of the facts
pleaded, and we are therefore to en-
quire whether the facts constituted
forfeiture Of the corporate powers.
This will depend upon the provisions
of the act OF 1910, under which the
forfeiture is pleaded, and also on the
constitutionality of that act.
The act referred to is entitled can
Act requiring the several banks in this
State TO pay specie. and for other pur-
poses" BY the 8th section, it is pro-
vided that the several banks should
pay their notes ofthe denomination Of
FIVE dollars on the first day Of April, en-
suing; their notes often dollars on the
first Of July; thGir notes oftwenty dol
lars on the first day Of October; and
notes Of all denominations after the
first day Of January, 1841. The 9th
section provides that in case of failure
10 pay as directed, the President, Cash
Ter or Teller, should endorse such re-
fusal on the note, which was to be
equivalent TO a protest, and evidence
OF refusal on the note, which was to
be equivalent to protest, land evidence
Of a refusal 10 pay. The 10Th section
is in those words, "That whenever the
Governor, either from the certificate Of
the President, Cashier or Teller, as
aforesaid, or by affidavit Of the holder
of any such note, bill, or other evidence