Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1881-08-05


ment That the Court has the Power and
Should Issue the Writ of Prohibition
The Bond Act Denounced as Deceptive
and Fraud.
In the supreme court yesterday morning
Gen. Cole resumed his argument upon ques-
tions pending relative to the bond commission
or tribunal by setting forth the differences be-
tween public and private contracts as to the
powers and duties of the courts in enforcing
them. Following this he referred to Railroad
Company VS.. Tennessee, cited by the attorney
general, saying that the State allowed itself to
be sued and Judgment was rendered, and when
the question of remedy was raised 1t was held
that it lay in the legislature. Upon this he
argued at length that the case did not sustain
the attorney generals propositions. SO in the
Topeka case it was held that the validity of a
contract which has to be paid from public
tax depends on the power to levy the tax.
In the Watertown case, cited yesterday, there
was no remedy at the time, for there was no
board of supervisors to levy the tax. But the
obligation did not cease and the remedy was
revived with the taxing power. So in the case
of the city of Nashville, when its charter
was Withdrawn, it was held
that the obligation of prior and existing con-
tracts could not be impaired though the rem
edy was for the time defeated. So in the case
of the Memphis taxing district, where the city
charter was surrendered, the courts held that
the legislature could dissolve the corporation,
but not to tine extent of destroying or impair
ing the obligation of its contract In all cases
&c bol6 fhotf fLa nf nf ha
government to pay is an impairment of con-
tract, and that the obligation remained, though
the remedy was apparently suspended. And
whenever the remedy again appeared it was
enforced by the courts.
Suppose the officers of the city of Memphis
had disregarded the repeating law as invalid,
and had levied taxes and made provision for
payment of the debt, does any one doubt that
the courts would have sustained them? The
remedy was only defeated for the time by the
courts being deprived of the opportunity to
apply or defend it.
Yet, wherever there is a remedy, my friend
says, there is the obligation. Then, when the
legislature provides a remedy, as now, the OBJ
legation is reversed. And upon the.fnstant a
State energies by hairs breadth from behind
its sovereignty the courts will enforce its con-
tracts. In the Arkansas bank case it was held
that as the contract would be binding on an
individual, so was it binding on the State,
which can no more impair its own contracts
than it can those of individuals. The only
distinction between that case and this is that
the courts had an opportunity to speak, and
it obtained that opportunity indirectly. But
it does not seem to me. that the obligation of
a contract can be impaired or not, according
to the local laws, In the Tennessee case 6
Wallace, AZ there was remedy by mandamus.
If not Tennessee would have been in the same
position as was Minnesota, and the fruits of
the contract would not have been obtained by
her bilIholderS, just as our bondholders have
been unable to obtain the fruits of their con-
tract. So as to the tax, upon coupons of the
Virginia war debt funding bonds-the State
officers could be reached by mandamus. Would
those coupons been the less contracts had
there been no way of enforcing them? Sup
pose the State officers had disobeyed the
taxing law. Would not the court have sus-
tained them? If it would it will sustain the
action of this legislature.
The court may see from these cases how at
any moment a remedy may spring up Would
there, then, have been no existing obligation
because there was no existing remedy for Oh
tainlng the fruits of a contract? If the Vir-
ginia case no mandamuS could have issued but
the State treasurer had accepted coupons with
out deducting the tax, and had been sued by
the State for default, it seems clear from the
subsequent decision that his defense would
have been good. There was, then, remedy
lying perdW in that Virginia law.
Now, your honors, we come to the last
point-that the amendment of 1860 did leave
sort of remedy. 1t did not say that no tax
should be levied for payment of interest or
principal of these bonds, but only that it was
not to be levied except by vote of the people.
This, supposed, would be the only point
raised here on this amendment. But it i'm
paired the obligation of the contract practi-
cally, because of the difficulty of getting an
affirmative popular vote; the disinclination
of taxpayers to pay what they can avoid pay
ing; the lack of popular knowledge of the
subject; the charges of fraud in the air; the
popular Indifference to the State credit-be-
cause the people will not investigate the facts
because payment would be sacrifice by
voters.
Modifying the power of levying taxes, with
relation to contracts, has in every instance
been held invalid. In the johnson county
case Is Dillon, 20S) the county had been au
thorized to issue bonds, with the power in the
county court to levy taxes for their payment
A subsequent law interposed the consent of the
circuit court as requisite 70 levying taxes, and
this law was held void. The county could
not be relieved of the obligation to pay in
time and manner as agreed in its contract. In
the Jefferson county case Is Dillon, 421) the
obligation to levy taxes was held to have en-
tered into and become part OF the contract.
The only mode of payment being from tax
levy, that was the principal if not the only
value of the bond, and constituted a vital part
of the obligation. A subsequent constitu-
tiOnal Limitation of the tax levy was
held to impair the obligation of the
contract, and to be 30 far null and void.
In Planters Bank vs.. Sharp (6 How. 327)
it was held that one test of contract beng
impaired by legislation was, that its value was
lessened. in Sd Fed. Rep, 356, a subsequent
law which added another party or condition to
the contract was held void.
Counsel next read from Ex rel. Wolf vs..
New Orleans, (1s Leg. News, 2S7,) where it is
held that every obstruction to levying taxes
legation of the contract. In Ex rel. Parsons
held entitled to the levy of tax,
and the doctrine is stated that whenever the
power to contract public debt is conferred,
the power to levy taxes for its payment is to
be presumed to be conferred.
In the case at bar, the legislature having
exercised its authority for providing remedy,
will the court interfere? The legislature can
not divest itself of it's duty to provide for
maintaining the public faith without impair
ing the obligation of the contract.
Credit was given on the faith of the taxing
power. rs Wis.,, 33.) A subsequent law,
which added to the machinery of tax
collection and payment, the consent of super
viSors, was not the contract In letter OF
substance. Q0 Cal. 563.) The distinction be.
tween ripht and mower shoud NOT he over