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

! OeUeIdl helsk6ll, WIS O6clueu yGSl6Iudy
IN a very elaborate opinion prepared by
! the hief-justice. IT involved the great
! question Of the liability Of the State to
receive the new Issue Of the bank OF
! Tennessee for taXe3-a question which
has been long discussed by the people
! and much speculated upon by specula-
| tors in the notes. Mr.. Smith, counsel for
| the petitioner, BlOomstein, will appeal
! from this decision to the supreme court
Of the United States. Justice NJ Farland
read an opinion dissenting in some re-
spects from the decision OF the majority
OF the court.
The "new Issue" party claim to be
confident OF obtaining reversal in the
United States supreme court.
THE OPINION.
The State, ETC., Us. Thomas H. Sneed, etc.
This is petition of Jacob Bloomstein
in the common law court for q peremp.
tory H1dnddnlsts, req0iring Thomas II.
Sneed, tsx-collectoT for Davidson cOun-
ty, TO receive from him one hundred
and thirty dollars in the notes of the
Bank Of Tennessee, issued after May 6,
1851, in payment Of his State taxes for
the year 1872. The encouragement
for the State assigned various causes of
demurrer, which were sustained by
Judge Guild, and the petition dismissed.
The first question raised by the de-
murreT, is as to the jurisdi ction Of the
common law court to grant the writ Of
n1dndGHLs. The petitioner bases his
application upon right secured to him
by section twelve of the charter OF the
Bank Of Tennessee, which provides,
that "the bills or notes of the said cor
poration, originally made payable, or
which shall have become payable Oh
demand, in gold or silver coin, shall be
receivable at the treasury Of the State,
aud by all tsX-cOllectOrs and other pub.
lie officers in all payments for taxes or
other moneys due the State" 1t is as
sUmed that by this provision Of the
bank charter, the State entered into a
contract with every holder Of any of the
bills or notes of the bank by which she
bound herself that the same should be
received by her tsX-cOllectors, in pay
ment Of taxes due the State, and that
the notes 50 rendered to Sneed as tax
collector were issued by the bank.
1t is further insisted that the obligs-
ton of this contract is protected from
impairment Dy the constitution of the
United States
These positions are sustained by the
holding OF the United States supreme
court in the case of -, 8 Wall. In
which case this same provision of the
bank charter was involved. In that
case the notes of the bank rendered had
been issued prior TO the sixth Of May,
1861, AID no question as to the jurisdic'
ton OF the State court wss raised. 1t
was decided that the State was bound
by her contract to !eceive the notes of
the bank issued before May 6, 1861, in
payment of taxes, but as TO the notes is
sued subsequent to that date, the ques-
ton vas waived.
Assuming, then, for the present, that
the contract entered into ~ the State,
by reason of the twelfth section of the
bank charter, including the notes ten
dered by petitioner to the taX-collector,
the question is, did the common law
court have Jurisdiction to require the
taX-coilector to receive them?
1t is legal as well as political axiom,
that no sovereign government can be
sued in its own courts, except by its own
consent. By our constitution, "suits
may be brought against the State in
such manner and in such courts ss the
legislature may, by law, direct" But
this constitutional provision remains
dead letter until some mode of proceed
ing is pointed out by the legislature.
Williams as. the Register, etc,
Cooke, 2lS. At the time the bank char
ter was passed, in 1888, the legislature
had pointed out no mode by which the
State might be sued in the courts.
There was then at that time no statute
of the State authorizing the enforcement
Of this contract in the courts, and COnse-
quently no such statute entering into
that contract and constituting part Ofits
obligation. The holders of the notes
could only rely upon the good faith Of
the State, through legislative enact
ments, for the enforcement Of the con-
tract. 1t is clear, therefore, that while
the constitution at the United States
protected the Obligation OF the contract
from impairment by the State, there
was no law furnishing remedy for its
enforcement, which constituted any
part of the obligation of that contract,
and the State was under no obligation to
furnish any other remedy than that
then existing.
IT is true, however, that in 1855 the
State gave her consent that suits might
be brought against her as against indi-
viduals, and this law remained in force
until 1865, when it was repealed, and
since that time no law has been enacted
authorizing suits against the State. 1t
was during the period that the act OF
1855 carried into the Code section 2SO7
was in force, that the notes Of the bank
now in controversy, were Issued, and
down to its repeal in 1855, the holders Of
the notes so issued had the right to en-
force the contract Of guaranty contained
in the twelfth section Of the Bench
Charter.
But the act of 1855 was an ordinary
act OF legislation, regulating the Jurls-
diction Of the courts of the State, and
furnishing q new remedy by way Of suits
against the State. This act contained
no stipulatiOns, that it might not be
afterward modified or repealed, if in the
Judgment OF the legislature its moditica.
ton or repeal should be demanded by
the public interests. Nor could such
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 as. the State of ArkanEas, ID
vol. Howe, $50, il was competent for the
legislature to repeal the act of 1855 alto
getheT, and put an end to the juTisdic-
tion Of our courts in suits against the
State; and in exercising this power the
State would violate no contract with the
narties. Ii would be merely regulating
the proceedings in her own courts, and
uniting or withdrawing the jurisdiction
ii bafoTe conferred, by the passage OF the
act Of 1855.
1t wss said in the case of Butler Cs.
Penus, 10 Howe, ll6, that the contracts
designed To bs protected by the tenth
section Of the first article Of the Federal
constitution, are contracts by which per
( feet rights, certain, definite, fixed PHI
vate rights Of property are vested. These
, are certainly distinguishsble from meas
urss or agreements adopted or under
taken by the body polite, or State gov
eminent, for the benefit of all, and from
/ the necessity Of the case, spd according
/ 20 universal understanding, to be varied
or discontinued as the pubic good shail
require.
II was upon these principles that we
held, at the present time, in the case OF
/ the Memphis and Charleston railroad
company rs. the State and the Bank OF
! Tennessee, that the State Wss not liable