Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1875-05-25


1t is manifest that if these provisions O
the statutes are valid, the Common Law
Court needs no jurisdiction to entertain th,
application for mandamus. The prOhi
bitiOn is explicit against the receipt of III,
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 Collector, for refusing q
receive the new issue for taxes due the
State.
It is insisted for the petitioner that these
provisions Of the statutes impair the obi
CATION Of the contract Of guaranty, BY
which the State agreed to receive the notes
OF the Bank Of Tennessee in payment 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 hold
ers had the remedy by mludamus, which,
being taken away, they are now without
any, or, at least, without any adequate
remedy. The error Of this argument is, in
assuming that the holders Cfthe notes have
ever had any remedy by suit since the
repeal Of section 2SOI Of the Code. As
| against the State there is no common law
| remedy by mandamus 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
the section 2S07 Of the Code.
We have already seen that even while the
section 2SO7 was IN force, that it did
not so incorporate itself with the 18th sec
| tiOn Of the bank charter, as 10 constitute a
part Of the contract, between the State and
the holders Of the notes. 10 was no more
than privilege or permission, granted by
the legislature to the note holders, which
was subject to be withdrawn whenever the
public interest required it. The case Of
Williams vs.. the Register Of West Tennes-
SEE, Cooke 2l4, is conclusive Of this ques-
tiOn. In that case, an application was
made for a mandamus to compel a register
to issue a grant, although the Legislature
had prohibited its issuance. Il is said by
the court, that 10 grant a mandamus in the
case, would in effect, sanction the idea that
the State may be sued. 1t was held that
the act Of the Legislature, prohibiting the
issuance of the grant was void, because Of
its repugnance to the constitution, vet the
court say they cannot perceive that they
possess any physical power to compel the
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that the disposition Of the soil was an at
tribute 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 attribute Of sovereignty be-
longs to the Legislature. That power has
forbidden its revenue officers TO receive the
new issue in payment Of taxes, and has
withheld from the courts any jurisdiction
to entertain a suit for refusal 10 receive
such payment.
1t follows that even if the statutes for
bidding the receipt Of the new issue by the
tax collectors was unconstitutional, vet 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 fOrbIdding Of any suit against the
collectors for refUsing 10 receive it, do not
violate that provision Of the Federal Con-
stitutiOn which protects the Obligation Of
contracts from impairment by state legis-
latiOn.
We have thus far considered the case
upon the assumption that the twelfth sec
tiOn Of the bank charter constitutes a con
tract between the State and the holders of
the notes Of the bank, which is valid and
biRding as between the State and the hold
ers Of the notes Issued after the 9th Of May,
1851. In this view our inquiry has been
confined to the question Of jurisdiction in
the courts to entertain the suit. Itremains
now to consider whether there is any Ob!i-
CATION on the present government Of the
State to receive the notes issued by the
bank during the existence Of the rebel State
government.
We have held in the case of the State
and Watson vs.. the Bank and others, that
as between the bank and the holders Of the
new issue, the notes were valid ard bind
ing on the bank. II does not follow that
as between the State and the holders Of this
issue, there is any obligation on the part Of
sthe State to receive the notes in payment
Of taxes due to the present State govern
ment.
When the bank was chartered in 1885,
the State undertook 10 receive She issues of
the Bank, in payment Of taxes assessed for
the support Of the State Government, then
in operation. That State Government, how
ever, was supplanted by the military and
de fGctO government which was inaugu-
rated by the Legislature, and carried out
by 4 majority Of the people in 1861, in the
acts BY which it was attempted 20 separate
the State from The Federal Union, and to
declare its independence. These acts were
invalid and void, SO far rs they were in
tended 10 affect, or to change The relation
Of the State TO the Federal Union; but they
we're etfectual, for the time, IN eNpslliug
the authority Of the United States Govern
ment, and in setting mp q new local gov
ernment in place Of the State Government
supplanted. The State remained in the
Union, and the Constitution Of the United
States continued to exist and 90 operate
within the State during all the time that
the usuTped government was I'm existence.
The laws which had prevailed before the
attempted revolution, so far as they were
not expressly repealed or changed by the
legislation Of the dc fIctO government, con-
tinued in force, as betWeenthe citizens Ofthe
new government, over their private contracts
continued under the protection of the Fed
eral Constitution.
In this way the charter OF the Bank con-
tinued in force, and its transactions as a
banking corporation were binding as be-
tween the Bank and those dealing with il.
Its capacity to receive deposits, and to is
sue q circulation, was the same after as be
fore the Inauguration Of the new govern.
ment. The contracts made by the Bank
with the citizens dealing with it were pro.
tected from impairment by the Federal
Constitution as eiiecLually during the eN-
istence Of the usuTpod government as be
fore. Hence, il was held by this court, in
the case of the State and Watson vs.. the
Bank, that the acts Of the Legislature Of
the restored State government, by which il
was sought 20 Tepudiate the issues Of the
Bank, were null and void, because they
impaired the obligation Of contracts be-
tween the Bank and the holders of its notes.
But as the State was held not TO be a party
to that suit, 10 opinion was expressed as
TO the power Of the legislature Cl the re-
stored state government TO repuIiate the
obligation of the State, under the l2h
section Of the Bank charter, 10 receive the
notes Of the Bank issued during the
usUTped government in payment OF taxes
assessed to support the restored govern
ment of the state.
1t is well settled that all legal and valid
contracts between citizens OftheTebel States
were so far under the protection
of the u. S. Constitution during
the prevalence Of the rebellion that
they could not be impaired by the leg
islature of the restored State governments.
The question presents itself, was the con-