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


5;s1rs,,,.s,,f 81 its funds: TO abolish exist
inc systems altogether; and TO substitute
such new ones as experience may Recommend
The idea that the creditors of the State have
such vested interest IN the existing MODE
of administering the pubic treasury, that
sueh regulations cannot be changed, ana
new or additional safeguards thrown around |
the subject, without thereby impalrlng 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 IFS executory undertakings. The |
very notion of a contract, the obligation OF |
which admits of being impaired by leglsIa- |
ton, carries with it the condition OF labll- |
ity to SOME legal remedy for Its enforcement
States are bound by every cmsideration OF
conscience and good faith TO perform their |
contracts but they cannot be compelled 70 |
perform them. The only remedy tor a debt |
due by State, is by an application TO the |
Legislature TO make an appropriation Tor It's
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 it has usu-
ally done, to pass general and permanent ap-
preparations for particular purposes, as Tor
the payment of the salaries OF otheers, 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 a
warrant, in case where no appropriation
had been made for its payment, IT would IL
self be unconstitutional
Regarding the issuance OF warrant, Tor
the sake of the argument, as remedy to the
creditor il 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 condl-
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 case2siEs by
| and through the action of the legisf%e;se de
| partment, and tins 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
| legal obligation, and a legal remedy in some
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. A legal
| remedy is a suit or proceeding i'll a court of
| justice. The grants, and executed contracts
| Of State, 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 for
| 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, no
| legal remedy to enforce contract against
the State, the act forbidding the Auditor to
| Issue warrants does not impair, or in any
| manner interfere with, any legal remedy
which the party possessed.
Our constitution does provide that .the
| Legislature shall direct by law i'll what man
| heT, and In what courts suits shall be brought
| against the State" art 7, sec. 100 This
| 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 could
| hardly be denied. In Darlington VS. State
Bank of Alabama, I3 Howard, e. 5. r. Justice
| Mclean, delivering the opinion of the court,
| says: " The fact that the State of Alabama
| may be sued by one of its own citizens does
not alter the case; such law may be repealed
at pleasure, and if judgment could be OBJ
tanned, the payment of it would not be en-
| forced
But this question may be vested upon
broader grounds. 1t may be promised that a
State can no more pass a law Lmpalrlng the
obligation of its own contracts than the con-
| tracts between its citizens; and that a State
Convention, assembled to frame or modify its
fundamental law, possesses no more power
in this respect, than the Legislature The
prohibition is upon the State itself. No State
can pass any such law, no matter what form
it may assume for the purpose. But it may
be quite confidently denied that there is any
contract in the case, or that any public Off
Ger holds his office, or receives his compensa-
ton, under or by virture of any contract
with the State within the purview of the
constitution.
In the case of the Dartmouth College VS..
! Woodward, 4 Wheaton, 627, Chief Justice
Marshall, discussing the question whether
the contract in that case was protected by
the Constitution of the United States, says ::
"On the first point, it has been argued, that
the word contract in its broadcast sense,
| would comprehend the political relations be
tween the Government and its citizens,
would extend to offices held within State
for State purposes, and to many of those
| laws concerning civil institutions, which
must change with circumstances, and be
modified by ordinary legislation; which deep
ly concern the public, and which, to preserve
good government, the public judgment must
control" Taken in its broad and unlimit-
and vexatious interference with the internal
= concerns of State, would unnecessarily and
unwisely embarrass its legislation, and rem
der immutable those civil institutions that
are established for purposes of internal gov.
eminent, and which to subserve those pun
f poses, ought to vary with varying circum-
= stances" And he remarks: THAT the
} | trainers of the constitution did not intend to
t | restrain the State in the regulation of theiI
civil institutions, and that the instrument
= | they have given rs is not to be so construed
5 | NAV be admitted The provision of the
I | constitution never has been understood to
t embrace other contracts than those which
1 | respect property, or some object of value
2 | and confer rights which may be asserted in a
f | court of Justice"
e This language of Chief Justice Marshall
: is quoted and adopted by this court in the
: case Of the State VS.. Smedes and Marshall
f % Miss, AZ, in which case the Judge, deliv
/ | erlng the opinion, goes on to say. THE
: ! court throughout the whole opinion reeOg
/ nizes the distinction between the character
: | of contracts protected by the constitution
: and those which IN one sense exist between
J. | the State and her officers. The latter have
4 never been held or thought to receive any
= protection whatever from the constitutions
! provision They are not, in either techni
5 cal or ordinary sense, contracts In all con
S tracts there must be mutuality; both pArtie,
f must be bound. They can only be dissolved
: discharged, or performance dispensed with
t by their terms, or by consent of parties
t officers were placed in this situation it woulC
!, | be difficult to see how they could resign thei
S offices, when they desired to relinquish pub
n lie trusts. The proposition is so plain, tina
/ it appears to be only necessary to state il, t,
l. show that the officers salary, or compensa
5 ton, is not of the description of contracts
i the protection of which is provided for il
d the constitution
l. Officers in this country are not incorporea
: hereditaments; nor are they the subjects o
S property They are not held by grant; no
I does the tenure partal1e of the quality o
/ character of contracts, the obligation o
# which cannot be impaired by legislation
They are mere agencies, of political ma
e ture, created for the discharge of public du
d ties in the administration of government
/ and which the government may regulate 70
: the general good. So far from holding pro
prietaTy interest in their offices, tire incum
S bents are but naked agents, without an in
5 terest- There Is no contract, express or i'm
}. piled, between public officer and the Coy
> eminent whose agent he is. The latter en-
e tiers into no agreement that he shall receiv,
t, any particular compensation for the time h.
e shall hold the office, that the Office itsel
# shall continue for any definite period. Wher
l. the constitution creates the office, or limit
o the tenure, or fixes the compensation thes
e things are beyond legislative control; bu
L that makes no contract. The people, in thei
# sovereign capacity, may, by new constitu
n tuition, terminate the Office, without regar,
e to the rights, the Interests, or the expecta
e tions of the incumbent So an office create,
Y by law may be repealed by law, without ref
the term tr1ra Of the off