Daily globe., 1881-08-09

Stlll lives. 1ts once Is not only TO compel
performance, but also to prevent rescission
after performance. 1t is something different,
then, from the mere remedy. (Here counsel
read at length from the decision cited regard.
ing the inhibition to the States, and
cited also other authorities, including Devsn's
Court ConsG., 477-S; Cosley's Primo. Const.,
3Ol; Cranch, 164 and 8 Wheat l-readiDg
also at length from the le tier, and comment
ing thereon. He then stated the case regard
ing the Virginia law repsali ng the law accept
ing the coupons of her new bonds for taxes
and quoted freely from the decision. (22
Graft. S4l) declaring the repeating law in
valid. Other citations were from 12 Otto,
$40 and Q Otto, 3O4, lthe Chamberlain case in
which these Minnesota State railroad bonds
are declared to be legal obligation, and con-
tinued. s
What are counsel going to do with these
declarations of the supreme court OF the Uni
ted States! They say as emphatically as Ian
guage can express it that bonds duly issued
by State are legal obligations binding
upon the State: from the obligation OF which
she cannot release herself by any subsequent
legislation without the consent of the bond
holders. a.lf5
Counsel also cited :he Arkansas and Tonnes
see bank cases, i'll which subsequent laws
were held invalid because impairing the obli-
cation of the contracts between the States and
the billholders. He next reviewed the case of
Ogden VS.. Saunders Q2 Wheat, 25S)
and quoted at length from the opinion
of Justice Washington, arguing that the
universal law does not exclusively
govern the contract, but must be taken in
strict subordinatlon to the municipal laws of
the land where the contract is made or is to
be executed. He also quoted from the opinion
of Justice johnson in the same case as to the
law or obligation of contracts where they are
not reached by municipal law. .al
white VS.. Hart, 13 Wallace, 648) Th-
constitution of Georgia, (l,86S,) prohibited
the assembly from giving jurisdiction to the
courts to try or give judgment. or enforce
slave or the hire thereof. Suit was brought
on a note given for slaves, which was valid
when given. It was held that the courts
of Georgia could take jurisdiction
and enforce payment Notwithstanding
the constitutional provision; that the
constitutional Inhibition impaired the obliga-
ton Of the contract, and that the courts
should proceed in disregard Of it. From this
| counsel argued that the legislature no more
| than the courts can be tied up by an uncon-
stitutional provision. r. Otto, 454, 4e3, 4s5,
| 40, quoted and commented upon: also IL
| Otto, 337; 10 Otto, 206; 6 Otto, 800; and 4
Little, the latter quoted by the attorney gen
eral.]
The difficulty with counsel is in con.
| IOuuQlQS C2G power Cl u SCaIc W lpalF ucT
contracts with the right to do -; in con-
| founding exemption frem judicial account
ability with Immunity and freedom from
constitutional restraints. The State has NO
more right to annul or impair her own con-
tracts than she has the contracts
OF individuals; and any act on
| her part which does SO Ii
equally unconstitutional, null and void whether
there can be any Judicial redress or not. If
| ho Srof chnuld O OIIah all ita fhot
no contract could be enforced, it
would be none the less unconsti
tutional, although there could be no redress.
[19 Wall, l24 1.-THE want of remedy and
the inability to obtain the fruits Of remedy
are quite distinct" Justice Baxter, City Of
Memphis case, Fed. Rep, VOL 8, p. $50
II ssBut fthese statutes are none the
less invalid, because they have been so framed
as to eluds the power OF the courts"
"But the obligations, moral and legal, to pay
complalnants' debts remain in full force. The
only difficulty in their way ls the want of rem
edy. o this extent, then, the remedy has been
wrongfully taken away, and there is no power
IN this court to supply another" Ibid, 344-
y, quoted at length; also Is Cal, IL. The lat
possesses the power to postpone her general
creditors Indefinitely but the right and the
power are not synonymous terms. The ex-
lstence of the power would never convert
that power into right" etc.
All acts, therefore, on the part of the State,
| which impair rights under her contracts,
have no more validity than similar acts would
have if attempted upon contracts between in
| diyiduals, although q party may have no re-
dress against the State. SAny affirmative
act of State which inpairs the obligation of
it's contracts is invalid and can never
be a legal obstacle in the way OF
the future perform noes of the con-
tract. Therefore the amendment to
the constitution, in question here, if it i'm
paired rights under the contract was invalid
and cannot be interposed or stand in the way
of the due performance of the contract on the
part of the State, whenever the legislature
sees proper to act.
When State passes an act repugnant to the
constitution, the relief comes when the State
or an individual asserts rights under the act.
| Until rights are asserted under it, it remains
dormant. But as soon as rights or exemp-
tlons are asserted under the act, then the
courts pass condemnation upon it. Then it
is that judicial redress and relief come in i.
Such is the situation of the matter now un-
der co nsideration. The amendment was
passed long ago, and has remained dormant.
Its validity could not be judlcially
tested until the legislature should act in disre-
gard of it, as it has now done; and now it il
that the State asserts its binding efficacy upon
Luc lcSISIdtuIC anu GudG lGo fdllulLy comes un-
der judicial cognizance.
So long az the legislature refused to make
provision for payment of the bonds, it was
simply breach of the contract and there was
no redress. But when the State sought by the
constitutional amendment to prohibit the leg
islature from carrying oat the agreement, it
impaired the contract, contrary to the inhihi-
tion of the federal constitutisn-the same as
if an attempt should be made to inhibit the
courts from acting, or trustee empowered to
execute a special extra judicial remedy. fChief
Justice Marshall, IL Wheat, SS7, quoted
The legislature having disregarded the con-
stitutlonal amendment, and taken action con-
trary to it's provisions, the State herself now
comes forward and claims efficacy for it a.
against the legislature. For the frst time the
matter comes before the courts for adJudica-
ton. This court is called upon to pass upon
the validity of this amendment, and this it
| should do regardless - to whether there was
| q right Of action upon the contract or not, as
| in the case Of compacts between States.
| But there is another view of this subject to
be taken, which not only shows the
falsity of the position assumed
| by opposite counsel, that the
constitution only protects from impairment
such contracts and obligations as can be judi
cially enforced, but lifts the case entirely be-
yond the reach of that question. It was
admitted and will not be disputed that an act
ruh oh ,,iyO f1,a ifsAl "a