Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1875-05-27

to be sued for deposits made by the rail
road cOmpsn., IN the bank in 1858
But the legislature has not stopped by
simply repeating the act Of 1855 (COdt
$500, which authorized suits TO bC
brought against the State. In 1873 by
chap. Is, it was enacted that "no cOurt
in the State, has, nor shall hereafter
have any power, jurisdiction or author.
ity to entertain any suit against the
State, or against any officer Of the
State, with a view TO reach the State, its
treasury, funds or property, etc"
By chapter A Of the acts Of 1873, il
was enacted that whenever any tax.
payer conceives that the taxes demande
OF him are unjust or illegally demanded
his only remedy is to pay the taxes
under protest, and afteTward sue the col,
lectOr; and no officer Of the State is tC
be "subj3ct to any suit for a refusal on
his part to sccept in payment ofreVenue
to the State, any kind or descriptions Ui
funds, or securities, or papers, other than
such as he msy be authorized and re-
quired to receive for the time being, by
law"
By chapter us of the acts OF 1878 it is
provided that "taX-cOlleCtOrs shall re-
ceive in discharge Of the taxes and other
dues to the State, bank notes of the Bank
Of Tennessee, known as old issue, war
rants on the treasury legally outstand-
ing, gold, silver, national bank notes,
United States legal-tender notes, and
nothing else.n
It is manifest that il these provisions
OF the statuf are valid, the common
law court needs no jurisdiction to enter
tain the application for nlGndGnl1tS.
The prohibition is explicit against the
receipt Of the notes IN controversy by
the taX-collectOrs, and against the power
or jurisdiction Of any court in the State
TO entertain any suit against such COL
lectOr for refusing to receive the new is
sue for taxes due the State.
1t is insisted for the petitioner that
these provisions of the statutes impair
the obligation Of the contract of guar
anty, by which the State agreed to re-
ceive the notes of the Bank Of Tennes-
see in pay nent OF taxes, for the reason
that they furnish no remedy by which
the holders OF the notes can enforce the
contract by suit. This position rests
upon the assumption that before these
statutes were passed the holders had the
remedy by nIdfddDllts, which, being
taken away, they are now without any,
or, at least, without any adequate reme-
dy. The error Of this argument is, in
assuming that the holders of the notes
have ever had any remedy by suit since
the repeal of section 2S07 Of the Code.
AS against the State there is no common
law remedy by DlGIldGDleIs without the
consent OF the State. There was no
such remedy when the State entered
into the contract, and there has been
none since the repeal Of section 2S07 Of
the Code.
We have already seen that even while
the section 2S07 was in force, that 1t did
not 20 incorporate itself with the twelfth
section of the bank charter as to cOnsti-
tute & part Of the contract between the
State and the holders of the notes. 1t
was no more than privilege or permis-
sion, granted by the legislature to the
nOte-hOlders, which was subject to be
withdrawn whenever the public interest
required it. The case of Williams as.
the Register OF West Tennessee, Cooke,
2l4, is conclusive of this question. In
that case, an application was made for
a ndnd0DlUS to compel a register to
issue a grant, although the legislature
had prohibited its issuance. 1t is said
by the court, that TO grant q Dla1lCldnllts
in the case would, in effect, sanction the
idea that the State may be sued. It was
held that the act Of the legislature pro-
hibiting the issuance of the grant was
void, because OF its repugnance to the
constitution, yet the court say they can
not perceive that they possess any physi-
cal power to compel the State to issue q
grant. The reason was, that the dispO-
sitiOn OF the soil was an attribute Of
sovereignty, belonging peculiarly to the
legislature. So in the present case, the
providing Of revenue for the State is an
attribute OF sovereignty, and by the
constitution The exercise of this attri-
butte of sovereignty belongs to the legis-
lstuTe. That power has forbidden its
revenue officers 60 receive the new issue
in payment Of taxes, and has withheld
from the courts any jurisdiction to en-
tertain suit fJT refusal to receive such
payment.
1t follows that even if the statutes
forbidding the receipt Of the new issue
by the tsx.cOllectOTs was unconstitu-
tional, yet the common law court had
no jurisdiction to compel its reception.
Much less does such Jurisdiction exist,
when the repeal of the act authorizing
suits. against the State and the forbid
ding Of any suit against the collectors
for refusing to receive it, do not violate
that provision of the Federal constitu-
ton which protects the obligation of
contracts from impairment by State
legislation.
We have thus far considered the case
upon the assumption that the twelfth
section Of the bank charter constitutes
q contract between the State and the
holders of the notes of the bank,
which is valid and binding as
between the State and the holders of the
notes issued after the sixth OF May,
1861. In this view our inquiry has been
confined to the question Of jurisdiction
in the courts to entertain the suit. 1t
remains now to consider whether there
is any obligation on the present govern
ment Of the State TO recover the notes
Issued by the ba TX during the existence
OF the rebel State government.
We have held in the case Of the State
and Watson Us. the Bank and 9TH
ers, that as between the bank and the
holders Of the new issue, the notes were
valid and binding on the bank. 1t does
not follow that as between the State and
the holders OF this issue, there is any OBJ
legation on the part of the State to re-
ceive the notes in payment of taxes due
to the present State government.
When the bank was chartered in 1885,
the State undertook to receive the issues
Of the bank, in payment Of taxes as
sessed for the support of the State gov
eminent, then in operation. That State
government, however, was supplanted
by the military and de fdctO govern
ment which was insugurated by the leg
islsture, and carried out by majority
of the people in 1861, in the acts by
which it was attempted t. separate the
State from the Federal Union, and to
declare its independence. These acts
were invalid and void, so far as they
were intended to affect, or
to change the relation of the
State to the Federal Union; but they
were eftectual, for the time, in expelling
the authority " the United States gov
eminent, and in setting up new local
government in place OF the State gov
ernment supplanted. The State re-
mained in the Union, ana the cOustitu-
ton of the United States continued to
exist and to operate within the State
during all the time that the usurped
government was il existence. The laws
which had prevailed before the attempt
ed revolution, so far az they were nOc ex-
pTessly repealed or changed by the Iegis-
latiOn Of the dc tdctO government, con-
tinued in force as between the citizens
OF the new government over their pri-
Vate contracts, cOntithed under the pro-