Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1872-06-08

Il
the effect Of this statute upon the rights Of
parties interested in the other banks, the
State being the only stockholder af1d entire
owner Of the Bank Of Tennessee, there can
/ be no doubt of the power Of the Legislature
| to legalize the removal ofthe assets OF this
Bans and 70 give to its officers as agents
Of TIE Bank, authority to do any act or
make any contract on behalf Of the Bank
In The State Of Georgia, that they would
have done or made Ia Tennessee, provided
they did net infringe the laws or public
policy of that State; and the Bank would
be as efectuaIly bound by it, as If done In
Nashville. / say the legislature would
have the power to do this. Did it do it or
intend to'doi P The act already quoted
indicates no intention to restrict or limit
the operations of the Bank In any way con-
sistent with its charter. e. or
The language Is general and would seem
to intend that their operations should be
restricted only BY their charter. It is argued
for the defendant that It would be unreas-
enable to suppose that the State or the Di-
rectors Of the bank could ever have inten-
ded e allow the officers Of the bank In
such perilous times away from its banking
house and its safe 10 Lake such gratuitous
risks. The probability is that the bank
could, and did procure as good and secure
3 house and safe in Augusta as il
had ia Nashville. The very fact that large
deposits were made with #, argues the con-
fdence the depositors bad IN the security
of their vaults, and the fact, that they were
not robbed justifies the confidence reposed.
But I can see no reason why bank in the
midst Of war should hesitate to take special
deposits, for it can only be held responsible
for gross negligence, Of which no man
ought ever to be guilty under any circum-
stances; and what Is negligence in a given
case being always dependant upon the
circumstances with which a party is
surrounded, the risk Of such a baIlee
in the midst Of danger can hardly be said
TO be greater than in times Of peace,
though it may under circumstances involve
more labor; good faith being the test Of his
liability under all circumstances. But be
this as it may, the Legislature knew the
war existed at the time the authority was
given. This act, it is true, was passed after
the 9th of May, 1861, and was after
wards by the constitution Of 1886 declared
null and void. But the act was
valid at the time it was passed, and was in
force at the time the Bank was removed to
the State Of Georgia, and at the time the de-
post was made, aud a constitutional con-
veuti0n can no more abrogate vested rights
or impair the obligation of contracts than
the Legislature. The constitution Of 1865
could only affect such contracts or acts
as occurred subsequent to its adoption.
The passage OF the act Of secession could
have no effsct upon the subsequent acts of
the same Legislature. If it was
unconstitutional it was simply void. |
The Legislature often enacts unconstitu- /
tional laws, but such an act was never held
to invalidate their subsequent legislation. /
If the act was constitutional, then of course
their subsequent legislation would be valid. /
l am therefore Of opinion that the deposit
was deposit in the Bank of Tennessee,
and that the corporation is liable for it I'M
less it has been lost to the Bank under cir
cumstances such as the law will excdse.
When the war closed the State govern
ment passed into the hands of
new party who repudiated
the policy Of their predecessors. The Gov
error, on behalf of the State, recalled the
assets Of the Bank of Tennessee, and the
men who had formerly been entrusted with
their custody, use and management, were
relieved Of the trust, and the assets restored
to the banking house at Nashville. This
was done by the order Of the Governor, act
ing on behalf of the State and as the agent
Of the State. This action of bis was subse-
quently ratified by the Legislature, and is to
be considered as the act Of the State.
The order Of the Governor was executed
By United States troops, who, for the time
being, were agents of the State of Tennes-
see QuoGd hoe, the act having been subse-
quently adopted and ratified by the Legis-
lature. The Bank of Tennessee is q pecu-
liar institution. 1t was created, not for It.
self, and its powers and franchises
were not intended for its own benefit. Its
object and Office was purely and |
entirely vicarious. 1t was simply |
an instrument of State policy = a |
financial agent Of the State. 1t was made |
the depository Of the State treasure bare,
naked trustee without any interest what |
ever in the trust fund. It neither had any |
capital OF its own nor any interest in the |
funds OF the State, nor any will of its own |
i'll the management Of those funds; but was |
at all times the subject Of Legislative will, |
and its very existence as q corporation |
was subject to be extinguished a: any |
moment by q breath from the Legislature. |
1t bad the ability to sue and be sued. |
But when it sued, its recovery |
Injured not to its own benefit, but to the |
benefit of the State. If it was suedi had |
no personal interest in defending the |
suit, for as corporation, it had nothing |
of which an execution could be levied. |
The State is directly interested, and the |
only party interested in the defense of this
suit. If the plaintiff recover the execution |
will ho lauia6 Of Y1ronortvy holopoiuor 70 Nha /
State, and not to the corporation as against |
the State. Upon this view of the transac- |
ton and of the nature of the Bank of |
Tennessee the question of ciS major is not |
in the case. The State who was the hight |
full owner of the assets of the Bank, and |
had right at all times to the immediate |
possession thereof, sent one set of agents |
to take them ont of the possession Of anoth- |
er set OF agents, to-wit: the Bank officers, |
and bring them home, so that in point of |
fact and in law the capture of the Bank |
assets, as it is called, was neither violent !
nor unlawful The State received the de- |
posits through the medium Of a set Of |
agents denomiAated the Bank of Tennes-
see. 1t than dismissed those agents and |
superseded them by band Of soldiers, to |
whom It. confded the deposits with the |
dSScbSy HHikc III LtduSltu lTOLu Augusta 10 |
Nashville. The soldiers were relieved in |
their turn and the deposits and assets were |
turned over to a new set of agents, called |
Directors of the Bank of Tennessee. In |
legal contemplation the deposits have never
been out of the possession Of the State Of |
Tennessee, unless they have been lost or stol-
en-. The State itself cannot be sued without |
its consent. But 1t has given its consent |
to be sued in the name of the Bank of Ten |
nessee for all causes of action arising out |
Of transactions with that institution. l |
say it has consented to be sued in that |
name, because every suit against the Bank
of Tennessee is, in effect, a suit against the |
State of Tennessee, the bank, and its CAPT. |
tai and assets, being the property Of the |
State, and the judgments recovered against |
it being to be satisfied out of the assets of the
bank, which belong to the State. The
bank owns nothing as against the State, and |
no one but the State has any interest in
any suit brought against it. |
The State then, being the real defendant to /
this action, cannot be heard to defend upon
the ground that the plaintiffs deposit was
lost by Uis major when the UiS was the act
of the State itself. If it was not lost by
cis major, was it lost at all? A bailee of