Clarksville weekly chronicle. (Clarksville, Tenn.) 1873-1890, 1882-02-18
WHOLE NO. 2,41O.

y putting the obligation in such form, that nc
y future Legislature could question the settle
Is ment or change the manner of payment
Il This feature of the law seems to have had its
. origin in a want of confidence in the integ-
/ rity ofthe people and their future represen-
. tatives. In this | think the Legislature ex-
9 ceeds its power--the responsibility ofmaklng
i name of the State must be left with the peo-
= pie. II they, in an evil hour, should choose
: to violate their faith and bring reproach and
: dishonor upon themselves by repudiating
g debts that in justice they ought TO pay, IL
will indeed be sad calamity, but am not
: to presume thatsuch an event can ever oc-
guilty ofso great q folly and so great a crime !;
but If they choose to do so, do not know
l how they shall be prevented. One Legisla-
ture has no power to act upon such a pre-
sumtion and bind the people by contract
! which surrenders their sovereign powers.
1t remains then to be seen whether the court
! has jurisdiction and the necessary powers to
render decree.
JUDGE EWING'S DISSENTING oPIN-
ION.
The next question demanding the atten-
: | tion of the court is the objection to what is
called the coupon feature Of the act. The
| never, as far as l know, been presented 10
| court, except in late case in Virginia, that
| of Ant mi v. Wright, p Grafton, SS3. The
obiection in that case was held not to be
well taken by the supreme court OF tnat
State. That case is at Que with ours with
there the contract had been executed, while
in cur case 1t is only offered to the bondhol-
ders; the other that there was provision
in the Constitution OF virginia that war
ranted the contract.
In Hartman " Creenhow, IL Otto, the Su-
f. some of the Virginia coupons, and sus-
| tanned and in all respects approved the case
of Antoni ". Wright. There Delng no au-
thority upon the other side In a case In any
way similar to the present one, these TWO
| authorities might well be followed py us, II
| there is nothing in the excepIions aDoNe
j ha undef cOnS1dera- |
| ton being only one of power ON the part OF
| the legislature to enact this coupon feature, |
it would seem to me opviouS tbe aoisia Silt
| ture to make such a contract would Justiy |
| them in offering 1t. If they have no power |
| to make the contract then 1t might De Wen |
| argued that now, If possible II should be ar
| rested in fferi. 1t has been SO aIgueu put
the argument is met by want OF Jurlsdlc-
| ton The other variation may be more ser
| ious. The constitutional permission OF Nlr-
| ginia which was quoted by the court is An
toni v. wright, ana upon ,ynh Wci,o iS no1 10 he
| found In form at least our Constitution was
as follows: "The General Assembly snail
provide by law a sinking 1und 10 De applieu
solely 10 the payment of the principal OF
| the State debt, which sinking fund snail DE
continued until the extinguishment OF such
State debt on every law hereafter enacted
by the General Assembly creating debt or
| authorizing a loan shall provide sinking
aThis provision" says the Louisiana
court. "does not invest the power In the AS
sembly to appropriate part OF the annual
revenues in advance, but imposes the oDll-
CATION on il to exercise the recognized pow
er with which 1t was invested for the pur-
pose indicated in the way PROVIDED. Ana
General Assembly to create u sinking fund
by an appropriation of the revenue thirty
four years in advance, to ext1nguisE the
principal of the public debt at its maturity,
which appropriation cannot be disturbed OF
diverted from its object by subsequent as
sembly, 1t would follow that 10 make an ap-
preparation in advance for the payment OF
the Interest OF the public debt Is not contrie-
ry to the legislative function. Ana Delng
stipulated for in this case ana MADE part
of the contract its repeal by subsequent
General Assembly would fall within the
prohi6ltory clauses OF DOM t6 the Nv 9ii IN
all this the Virginia court does not regard
the Constitution as enabling the legislature
to create a sinking fund by anticipation
out of part of the revenue for each but rec
ognizing their power TO do so Imposes III up
on them as a duty. This power then exist
ing to the sinking fund with duty added,
the same power exists as legislative func-
ton to provide by anticipation as 10 the ln-
terest. NOW mere the a9ty 70 provhu9 e dot tde
ture is perfect and would not be strength
ened by being expressly made SO IN Con-
stitutlon, especially as there would be no
mode of enforcing the duty in either case.
The Legislature of either state might have
refused to discharge lts " ne narfSciS ery
sanctioned in Virginia as with us: what
then has the Constitution of Virginia TO DO
WITH the coupon IbtluIS vi IlASlA ldMs Az
was the result of the general delegation OF
legislative power to the General Assembly,
and so in our case. II the Virginia act OF
1871 was held valid by its court and the de-
cision approved by the Supreme Court of /
the United states, why may not ours be?
At any rate have the decision OF this high
ly reputable court (bolstered by that of the
Supreme Court of the United States) ad-
hered to on rehearing and approved by the
same court with different members in "A
Grattan, 1890, Crate l34 and 80 Crate 2S1, as !
a warrantin a case precisely similar for this {
opinion. The court in Antonl V, wright
did not seem much troubled by the objec-
tion that they were forging an Intangible
shaclkle upon future revenue legislation, but
only as to the question OF anuclpature APP I
propriations of any character, without ref {
erence to the danger of the creditors seiAlng
the revenue before 1t should reach the treas I
ury. To show more fully the analogy be-
tween this last case and ours some further 2
statement of it is perhaps necessary: An {
act of the Virginia General Assembly OF
1871 made the coupons of its bonds receiya- 4
BILE for all taxes and dues of the state ON
bonded debt as large as our own, ana with {
an interest of per cent. This act having Z
been carried into effect by acceptance of the )
bondholders, was repealed by an act OF 1877.
It is the validity OF this latter act act v. Which J
toni v. Wright, the State allowing itself TO {
be sued under general law. The decision I
was by majority of the court lone Judge +
dissenting against the validity of the act v
of 1872 and in support of the act of lS7l The C
case was well considered, and the opinion j.
is long and able. 1t rests itself upon reason a
New Jersey v. Wilson, \ Branch, l24, Opin- 2
ion by G. j. Marshall; Woodruft V; Irapnell, p
decided unanimously by the supreme court e
of the United States; Exchange Bank OF I
Virginia " Knox, 10 Grattan, 739; Home of 81
the Foundless V. Rouse, 8 Wallace, 430, and O
City of Richmond V. Richmond d ID. X. X. p
Co., Grattan, 604. Substantially every argu- v
ment that has been urged mere against ours 81
was urged there, and met and answered,
repeat with signal ability. ..-,...,.. j
After all, however, this case on Antonl " q
Y tod oC 4
ties and by the approval of the Supreme Il
Court of the United States is not binding Il
upon this court. / proceed then ID
further to examine this question upon rea- 81
son and principal, and shall endeaVor 70 see o
with such lights as l have whether there a
Is anything In this coupon feature manlIest- o.
ly in conflict with the Constitution of Ten b
nessee have been struck in this case eS- 81
pecially as many times before In my life at u
me y1onderfnI intellectual superstructures 81
which can be built on few false assunp- o
tions, but they are at last houses built on a
the sand and cannot endure. But proceed rC
ing If the coupon feature once adopted be ID
in fact irrepealable 1t is because its makes 81
contract that the Legislature was COMPETENT b
to make. Ifit does not make contract be- s.
cause 1t is in form irrepealaDle, ana, there- al
fore, unconstitutional, II binds nobody, OF
hurts nobody, and may be disregarded by "a
any future Legislature, when exigency de- d,
mands. 1t would stand upon the same u
footing as mere municlpal law Wnicih fl
Of the courts For the current two years the al
tax is laid to meet both coupon and other h
expenses. Inc aDDfOfElllOnl anu W IN
this extent all agree the law might be con- Il
stitutional, The presumption OF suffctency pl
Of revenue is absolute, aud the mode In pl
which the appropriation is made Is matter II
Of FORM and fmmaterial. rC
II the Federal Court should hereafter en- n
force the act when accepted, as making o Il
contract it will be because 1t Is n contract, v,
hey being the ultimate judges OF that ques- a
ion constituted such through our surrender | eS
IF sovereignty to that extent. If II be not O TI
contract because irrepealable and unconsti- tn
utional, they Will not enforce II. IL Is not OF
egitimate argument to say that they Will. cl
The real ground OF opposition TO this law as II,
[ seems to me, is not that 1t Is against the IN
Constitution of Tennessee as limited by m
he Federal Constitution, but II Is, ia n re- ti,
,alcttrant temper and feeling against that v,
Imitation itself. Can we now enjoin the III
execution of an act which may never be- ~
,ome operative as an unconstitutional law, az
md which, whenever 1t does, can be re- hi
lealed by the Legislature at once upon q m
,alI of that body by the Governor? The law 10
nay be unwise, but 1t is not for that reason hi
If IL be unconstitutional St
Ipon future contingencies there is no posi- vi
1flity of its becoming oppressive, as re
elief could always be had by legis- n,
alton, which must be sustained by II,
he courts. 1t is upon the posi- te
)ility OF its becoming oppressive that al
he argument Is made against its constitu- nj
But it Is neither unconstitutlon- M
Il in present. nor in future, because OF M
hese possibilities. Its oppression under m