Daily Mississippi clarion and standard. [volume] (Jackson, Miss.) 1866-1866, 1866-07-03


relative to the collection, safe keeping, and
disbursement of its funds to abolish exist
ing systems altogether; and TO Substitute
such new ones as experience may recommend
The idea that the creditors OF the State nave
such vested interest in the existing mode
of administering the public Treasury, that
such regulations cannot be changed, and
new or additional safeguards thrown around
the subject, without thereby impairing the
obligation of the contracts between the State
and its citizens, is rather startling, and can
not be adopted without the most Imperative
necessity.
The State cannot be sued at law, and there
fore the idea of legal liability cannot be pre-
Dictated of its executory undertakings. The
very notion of contract, the obligation OF
which admits of being impaired by leglsla-
ton, carries with it the condition of liabll-
ity to some legal remedy for its enforcement.
States are bound by every. cAsideratiOn OF
conscience and good faith to perform their
contracts, but they cannot be compelled to
perform them. The only remedy Tor debt
due by State, is by an application to the
Legislature to make an appropriation Tor Its
payment Indeed no money can be drawn
from the Treasury, but in consequence OF
such an appropriation 1t is undoubtedly
competent for the Legislature, as 1t has usu-
ally done, to pass general and permanent APP
preparations for particular purposes, as for
the payment of the salaries OF officers, the
support of the public institutions, and the
like, and to direct the manner in which such
money shall be drawn; and it seems equally
competent for the same body at any time to
repeal or modify such general laws. So far
as the article quoted from the Code might
be construed to authorize the issuance OF
warrant in case where no appropriation
had been maCbe for its payment, it wonld it.
self be unconstitutional.
Regarding the issuance of warrant, for
the sake of the argument, as remedy to the
creditor, it has recently been solemnly de-
cided by this court, in the case of Cotfman
VS.. The Bank of Kentucky, that the remedy
does not enter into or form any part of a
| contract, but remains subject to the control
of the Legislature, subject only to the cOndi-
ton that in dealing with the remedy, the
substantial rights of the party shall not be
destroyed. or diminished, by the denial of
| any remedy whatever. Now the only RENE
| dy that exists for the collection of demands
| against the State, in ordinary casfeEis by
| and through the action of the legisfsfa &c de-
| partmont, and this remedy remains wholly
unaffected, and may be resorted to by the
| party at his pleasure In the case of con-
| tracts made by individuals there is always a
| legal Obligation and legal remedy in some
1 form for its enforcement, and it is the action
! of the Legislature upon these remedies, that
| has usually given rise to the discussions in
| our courts of justice, whether the obligation
| of the contract has been impaired legal
remedy is suit or proceeding in a court OF
| justice. The grants, and executed contracts
| of a State, are contracts within the prOtec-
| ton of the constitution But its executory
| contracts, such as promises to pay money
and the like, have no other than a moral
sanction, and depend upon good faith foI
their performance. No money can be drawn
| without an appropriation, and no court can
| compel the Legislative department to pass
law to make one. There being, therefore nc
| legal remedy to enforce n contract against
the State, the act forbidding the Auditor tC
| Issue warrants does not impair, or in any
manner interfere with, any legal remedy
which the party possessed.
Our constitution does provide that "tht
Legislature shall direct by law i'll what man
ner, and in what courts, suits shall be brought
against the State" (Art. Z, sec. 1O.) Thi,
requirement was executed, in 1888, by direct
ing such suits to be brought in the Superior
Court of Changers That Court, however
was abolished several years ago, and no new
regulation has been made on the subject
But if there had been such law in force
when the claim of the relator accrued the
power of the Legislature to repeal it cOult
hardly be denied. In Darlington VS. State
Bank of Alabama, IL Howard, q. S. ~, Justic,
Mclean, delivering the opinion of the court
| says: L NC IdCJ IllaI the state OF AlaDalns
may be sued by one of its own citizens doe
not alter the case; such law may be repealed
at pleasure, and if Judgment could be oh
tanned, the payment of it would not be en-
forced"
But this question may be vested upOl
broader grounds. 1t may be promised that
State can no more pass a law impairing tn
obligation of its own contracts, than the con
tracts between its citizens; and that Stat
| Lad g., -
fundamental law, possesses no more power
in this respect, than the Legislature. Tn
prohibition is upon the State itself No Stat
can pass any such law, no matter what form
it may assume for the purpose But it ma,
be quite confidently denied that there is an,
contract in the case, or that any public off
Ger holds his Office or receives his compensa
ton, under or by virture of any cOntrac
with the State within the purview of tn
constitution.
In the case of the Dartmouth College vs.
Woodward, Wheaton, 627, Chief Justic
Marshall, discussing the question whethe
the contract in that case was protected b.
the Constitution of the United States, says
"On the first point, it has been argued tina
the word contract in its broadcast sense
would comprehend the political relations b,
tween the Government and It's citizen,
would extend to offices held within Stat
for State purposes, and to many of thos
laws concerning civil institutions, whic
I must change with circumstances and b
modified by ordinary legislation; which deeI
lly concern the public, and which, to preserv
good government, the public judgment mus
control" Taken in its broad and unlim
i sense, the clause would be an unproftabl
t and vexatious interference with the interns
concerns of State would unnecessarily an
| unwisely embarrass its legislation, and rel
3 der immutable those civil institutions tbs
| fol liSla fo Of
eminent, and which to subserve those pu
f poses, ought to vary with varying circun
: | stances" And he remarks: THAT I'll
D trainers of the constitution did not intend [
t restrain the State in the regulation of the
: civil institutions, and that the instrumeI
: they have given MS is not to be so construe,
5 may be admitted. The provision of I'll
4 constitution never has been understood
t embrace other contracts than those whiC
q respect property, or some object of valu
e and confer rights which may be asserted in
f court of justice"
e This language of Chief Justice Marsha
g is quoted and adopted by this court in IL
& case Of the State VS.. Smedes and Marshal
# % Miss, AZ, in which case the Judge, deli
d ering the opinion, goes on to say: "Tl
y court throughout the whole opinion reco
d nizes the distinction between the charact
; of contracts protected by the constitution
: and those which in one sense exist betwet
), the State and her officers. The latter hav
n never been held or thought to receive al
l. protection whatever from the constitution
Ii provision. They are not, in either techr
s. cal or ordinary sense, contracts. In all co
s tracts there must be mutually; both parti
# must be bound. They can only be dissolve
t. discharged, or performance dispensed wit
It by their terms, or by consent of parties
It officers were placed in this situation, it wOu
!, be difficult to see how they could resign the
IS offices, when they desired to relinquish pu
n lie trusts. The proposition is so plain, th
l. it appears to be only necessary to state il,
l. show that the officers salary, or compens
IS ton, is not of the description of contract
i the protection of which is provided for
d | the constitution"
l. Officers in this country are not incorpore
G. Entertainments; nor are they the subjects
is property They are not held by grant; N
l. does the tenure partake of the quality
y character of contracts, the obligation
# which cannot be impaired by legislation.
They are mere agencies, of political L
e ture, created for the discharge of public
d ties in the administration of governmeI
It and which the government may regulate
< the general good So far from holding pl
prietary interest in their offices, tire incul
is bents are but naked agents, without an
is terest. There is no contract, express or il
D. piled, between public officer and the Go
D ernment whose agent he is. The latter G
e tiers into no agreement that he shall recei
t, any particular compensation for the time
e shall hold the Office nor that the office itst
If shall continue for any definite period. Whe
i the constitution creates the Office, or limi
% the tenure, or fixes the compensation, the
e things are beyond legislative control; b
l. that makes no contract. The people, in the
If sovereign capacity, may, by q new constit
n tuition, terminate the Office, without rega
lie to the rights, the interests, or the expect
le tions OF the incumbent. So an Office Great
y by law may be repealed by law, without n
D. erence to the term or future salary of the OF
i, eer The same sovereign power which pl
r scrlbes the duties of the Office may alt
L fham ut rnlanarIrc 4