Daily globe., 1881-09-11

tiOn, which can rarely be brought within the
reach of judicial power, and never directly for
the purpose of compelling their perform
ance, it is more difficult to conceive
power external to the State, which
may enforce them. This difficulty, more
apparent than real, arises from confounding
the State with one of the departments of its
government, the legislative. which depart
ment the State has appointed to enforce State
in certain cases. AS soon as it is
understood that the legislature IS not the
State any more than the Judiciary is, and that
like the Judiciary there is entrusted to it the
power in cases coming within its proper
sphere of enforcing state obligations, the
difficulty of accepting the idea that there is
binding force to such obligation ceases.
Whenever any undertaking of the State, as for
instance the undertaking to use the taxing
power comes in question before court it is
the province and duty of the court to reeog-
nize it, and so far as required by the case be-
fore it, to maintain its integrity. But it is
ordinarily the province and duty of the legis-
lative department to directly enforce the obli-
cation in the first instance and of the courts
to sustain its action when its validity comes in
question in a case properly before them.
As in the case before us, if there
was binding obligation of the
and taxation, and If the amendment of 1860
impairs that obligation then it was the duty
of the legislature to whom the power is en-
trusted to employ it, and whenever, in case it
should employ it, the legality of its action
should, as it might do, come before the judi
ciary, it would be the province and duty of the
latter department to sustain and confirm the
action Of the former.
Having reached the conclusion that there
rests on the State legal obligation to perform
its contracts, that where the power and duty
to bring about performance OF them are in the
legislative department there is legislative
remedy, the destruction of which may impair
the obligation of the contract, as the taking
away a remedy within the power OF the judi
ciary may, and that the State may by contract
disable itself to abolish or fetter the power of
legislative appropriation and taxation where
they constitute the means to perform its con-
tracts, it remains to be considered, did the
State, by its contract with the bond
holders, bind itself to leave the power
in the ordinary legislative body? And did the
amendment of 1860 lessen the value of the
creditors remedy when 1T removed the power
of providing for payment'of the bonds from
the ordinary legislative department and remit
ted it to the electors at large?
And here we may refer to suggestion
which has been made that the undertaking of
the State was general to pay the money and
was not promise to employ any particular
means for payment, for instance, taxation,
| and that legislation affecting only particular
means of payment, or a a particular mode of
payment, does not impair the integrity of the
general promise to pay. The amendment takes
| from the legislature the power to employ any
means of payment by taxation or otherwise.
| Even though the treasury might have in it
millions Of unappropriated and unneeded
| funds, it could not according to the amend
| ment pay cent Of such funds upon this debt.
The proposition would be absurd that a
| !, II, 1aa -
unaffected, il it do not prohibit the debtor to
pay, but only disables him to employ the only
means through which ne can pay. The debt
or's promise to pay is usually general; it is
| rarely promise to pay only from particular
fund, as from his personal property, or from
| his real estate. But could any one say that
law which should put it out of his power to
appropriate his personal property or his real
estate to pay general debt would leave his
contract to pay unimpaired.
| By contracting this debt the State put it's
| self under an obligation to resort to taxation
to pay it certainly if 1t provided no other funds
with which to pay.
| The obligation to pay implies an obligation
to employ the means necessary for payment
The observation of the supreme court
| of the United States in Loan Association vs..
Topeka, 20 Wall, 655, $50, though in that
case applied to municipal corporation, Is
equally applicable to the State, "that all con-
| tracts creating debts to be paid in future, not
| limited to payment from some other source,
imply an obligation to pay by taxation"
! At the time the bonds here in question were
issued the constitution of the State, the same
| instrument, pursuant to which they were is
sued, provided, sec 2, art. 9: "The legislature
shall provide for an annual tax sufficient to
defray the estimated expenses of the State for
| each year; and whenever it shall happen that
| such ordinary expenses of the State for any
year shall exceed the income of the State for
| such year the legislature shall provide for
| levying tax for the ensuing year, sufficient,
| with other sources of income, to pay the de-
| fciency Of the preceding year, together with
| the estimated expenses Of such ensuing year."
| We do not regard it as OF special Importance
as relates to the question now before US that
| this power and duty of the legislature are ex-
pressed in the constitution, for had they not
been expressed, they would, in the absence of
words excluding the implication, have been i'm
piled.
But the section was there when the bonds
| were issued, and, in respect to the power and
! duty on the part of the legis-
! lature thus expressed, counsel for
respondents argue that among the
expenses which the legislature was thus di-.
rected to provide for, was the annually accru-
| ing interest, and ultimately the principal of
these bonds; bat as the State had no other
| TciIaUtc SOuTCc vi luCOmC CACCpJ OuSu ldA-
alton, the parties the State and the receivers
of the bonds, must have looked to and intended
taxation as directed by the constitute on, to-
wit: through the legislature, as the means
| through which the interest and principal of
the bonds were to be paid; that is, that it
amounted to contract that the legislature
should provide by taxation to pay the bonds,
and that such contract is as unimpairable by
the State as the contracts in the causes we
have cited; that the municipalities should pro-
vide by taxation for payment of the debts in
Cured by them. Or if that is not the case,
then that taxation by the legislature was at
| that time provided in the constitution as the
remedy, or as the principal and only reliable
remedy for creditors of the State, including
holders of these bonds. We endeavor to state,
though not in their language, the substance
of their propositions. At the time the bonds
were issued the power to tax was in the legis-
lature. Had it itremained in that body there can
be no question OF its duty to tax unless there
were other reasons to punctually pay the OBJ
legations of the State.
Was it a contract that this power and duty
should remain in the legislature? The decis-
ion of this question involves the same con-
slderation as is involved in the question
whether, treating the power and duty then in
the Legislature as a then existing remedy for
the bondholders, taking it away or changing
it as provided in the amendment of 1860, les
sens the value of the obligation to pay the
sums stipulated in the bonds. For no agree
ment to leave with the legislature the power
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