Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1875-05-25
/" NEW ISSUE"
1t is hot Receivable by the State
for Taxes.
All the Points Decided by the
Supreme Court.
An Appeal to be Taken to the
Highest Tribunal.

Justice. Il involved the great question o
the liability Of the State to receive the New
Issue Of the Bank Of Tennessee for taxes
a question which has been long discusseC
by the people and much speculsted upon
| by Spectators in the notes. Mr.. Smith
counsel for the petitioner, BlOOmstein, will
appeal from this decision to the Supreme
Court of the United States. Justice Nc
Farland read an opinion dissenting in some
respects from the decision Of the majority
Of the Court.
The "New Issue" Iarty claim to be con
fident Of obtaining reversal in the United
States Supreme Court:
| THE OPINION.
The state, etc, vs.. Thomas II. Sneed, etc.
This is a petition of Jacob BloOmsteiI
| in the Common Law Court, for a peremlr
| tory mandamus, requiring Thos. II. Sneed
] Tax Collector for Davidson county, to re
| ceive from him Sl3O in the notes of the
| Bank of Tennessee, issued after May
6, IS61,!in payment Of his State taxes for
the wear 1872. The Attorney General
for the State assigned various causes
Of demurrer, which were sustained by
Judge Guild, and the petition dismissed.
The first question raised by the demur-
rer is, as to the jurisdiction Of the Common
Law Court 10 grant the writ Of mahdamus.
The petitioner bases his application upon a
right secured to him by section II Of the
Charter of the Bank Of Tennessee, which
provides, that "the bills or notes Of the said
corporation, originally made payable, or
which shall have become payable ON de-
mand, in gold or silver coin, shall be re-
ceivable at the Treasury Of the State, and
hy all tax collectors or other pub
lie officers, in all payments for
taxes or other moneys due the State. "
II is assumed that by virtue Of this
provision Of the bank charter, the State
entered into a contract with every holder
of auy Of the bills or notes Of the bank by
which she bound herself that the same
should be received by her tax collectors, in
PAYMENT of taxes due the State; and that
the notes so rendered to Sneed as tax col
lector were issued by the bank.
II is further insisted that the obligation Of
this contract is protected from impair
ment by the constitution Of the United
States.
These positions are sustained by the hold
inc of the United States SupTems Court in
the case Of - s Wall. In which case this
same provision Of the bank charter was in
volved. In that case the notes Of the bank
rendered had been issued prior to the 9th
of Nav, 1851, and no question as to the
iurisdictiOn Of the State Court was raised.
IL was decided that the State was bound by
her contract 70 receive the notes Of the
bank issueu before May 6, 1861, in payment
of taxes. but as to the notes issued subse-
oUeut to that date, the question was waived.
Hrssr that the
contract entered into by the state, by reason
of the 18th section Of the bank charter, in
Guiding the notes rendered by petitioner to
the tax collector, the question is, did the
common law court have jurisdiction to re-
quirc the tax collector to receive them?
II is a legal as well as political axiom
that no sovereign government can be sued
in its own courts, except by Its own con-
sent. BY our Constitution, ''suits may be
brought against the State in such manner
and in such courts as the Legislature may,
by law, direct" But this constitutional
provision remains 4 dead letter until some
mode Of proceeding is pointed out by the
Legislature. Williams vs.. the Register,
etc., Cooke, 21S. At the time the Bank
charter was passed, in lS5S, the DegiSla-
ture had pointed out no mode by which the
State might be sued IN the courts. There
was then 1t that time no statute Of the
State authorizing the enforcement Of this
contract in tie courts, and consequently
no such statute entering into that contract
and constituting part Of It's obligation. The
holders Of the notes could only rely upon
the good faith Of the State, through
Legislative euactments, for the en-
forcenent Of the contract. Il Is
clear, therefore, that while the Constitution
of the United States protected the Obliga-
tion Of the contract from impairment by
the State, there was no law furnishing
remedy for its enforcement, which cOnsti-
tuied any part Of the obligation Of that con-
tract, and the State was under no obliga-
tiOn to furnish any other remedy than that
then existing.
IL is true, however, that in 1855 the State
gave her consent that suits might be
Brought against her as against individuals,
and this law remained in force until 1865,
when il was repealed, and since that time
no law has been enacted authorizing suits
against the State. Il was during the period
that the act of 1866 carried into the Code
section 2S07 was in force, that the notes Of
the bank now in controversy, were issued,
and down to its repeal in 1865, the holders Of
the notes so issued had the right TO enforce
the contract Of guaranty contained in the
18th section Of the Bench Charter.
But the act Of 1855 was all ordinary act
of legislation, regulating tie jurisdic-
tion Of the courts of the Stale,
and furnishing new remedy by
way of suits against the State. This
act contained no stipulations, that it might
not be afterwards modified or repealed, if
in the judgment of the Legislature IFS
modification or repeal should be demanded
bv the public interests. Nor could such a
contract be implied from the passage Of the
act Of 1855. As held by the Supreme
Court of the United States, in the case of
Beers vs.. the State of Arkansas, I'd vol.
Howe, $50, it was competent for the Legis-
lature to repeal the act of 1855 altogether,
and put an end to the jurisdiction Of our
courts in suits against the State; and in
exercising this power, the State would yiO-
late no contract with the parties. II would
be merely regulating the proceedings in
her own courts, and uniting ct withdraw
inc the jurisdiction it had before conferred,
by the passage Of the act Of 1855.
Il was said in the case Of Butler vs..
Penna. 10 Howe, 1IG, that the contracts
designed TO be protected by the 10th section
of the 1st article Uf the Federal COnStitu-
tion, are contracts by which perfect
rights, certain, definite, fixed private rights
Of property are vested. These are certainly
distinguishable from measures or agree
ments adopted or undertaken by the body
polite, or State government, for the benefit
of all, and from the necessity Of the case,
| and according to universal understanding To
be varied or discontinued as The public good
shall require"
IL was upon these principles, that we
held. at the present time, in the case Of the
/ NJ. q Oh. r. II. Co, ys. the State and the
| Bank Of Tennessee, that the State was not
! liable % be sued for deposits made by the
| Il. +. Co., in the bank in 1863.
But the legislature has not stopped 10y
| simply repeating the act Of 1865 (cOde
| 2S0D, which authorized suits to be brought
against the State. in 1873 by chap. IS, il
was enacted that ''no court IN the State,
| has, nor shall hereafter have any pOweI
! jurisdiction or authority 10 entertain any
| suit against the State, OF against any Olicel
Of the State, acting by authority Of the
State, with a view 20 reach the State, it;
treasury, funds or property, etc"
By CHAPTER a Of the acts Of 1873, it wa;
enacted that whenever any Taxpayer con.
ceiyes that the taxes demanded Of him are
unjust OF illegally demanded, his only rem
edy is TO pay the taxes under protest, anl
afterwards sue the collector; and no Office
OF the State is to be subjected to any sui
Il -