Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1882-02-02
THE STATE DEBT.
| Synopsis of Gov. Marks's Argument for
the Defendants I'm The 1908
Injunction Suit.
Nasbville american. January 8lst.


The following is synopsis of Ex-Governo
| A. s. Marks's argument in the 1908 case
made before the Supreme Court yesterday:
l. That the act impeached attempts al
irrevocable grant of the public revenues fol
ninety-nine years, and if executed will have
| thai effect.
2. That as it will, if executed, give indi
| viduals the power to control the entire reve
| nue., independently of the will of the State
| through the agency of the courts, it, ip3t
tacto, converts the public revenue into pri
vate fund for nipety-nine years.
| 3. That the essential attributes of sovereign
| ty are inherent in the people and inalienable
by irrevocable grant by the general Assem-.
bly,, in whole or in part.
| T. That the power to raise and appropri
ate revenue is the chief fundamental attri-
! butte of sovereignty.
>. That if the power of irrevocable alien
alton can exist at all in legislature, it must
exist as an express diminutive power from a
! constitutional grant.
6. And must then be limited to partial
release only.
Z. That a partial release must be release
OF but part of the subject, and the remain
der, after separating the part released, must
be plainly sufficient to meet all of the wants
of government.
8. And that this is question OF fact,
which, like all other questions of fact when
doubtful and controverted, must necessarily
be ascertained by pleading and evidence in
Judicial proceeding.
8. That the courts of the sovereign to be al
fected are the appropriate tribunals to ascer-
tain the facts and determine the validity of
the release.
10. That while the release is in feri, their
jurisdiction is conclusive and final.
IL. That it is alleged fact that the re-
lease proposed, if effected, will embarrass
and break down the government, and that the
benefciaries under the proposed release
fraudently procured the agents of the State
to undertake to make the release.
II. That the fact being admitted, the
court cannot, in any event, permit the release
to be executed until this admission ia re-
moved.
49, That our constitution does not clothe
the general assembly with any power, either
expressly or by implication, to ALLEVIATE by
irrevocable grant or otherwise, any part OF
the essential attributes of sovereignty.
IA. That the provisions OF our constitution
are an express prohibition upon the exercise
Of such power.
10. And, if not, the power is excluded by
necessary implication.
l. That as the ninth section of the act does
not make an exception III favor OF taxes
levied for the payment of the interest on the
school fund, and as the bonds and coupons
must follow that section and will go into the
hands of innocent holders, the school fund Is
not protected and the act therefore void.
2. That the poll-tax is a constitutional tax
it cannot be excepted as tax for the sup
port of the common schools, and being pay
able in coupons it avoids the act
l. That while the general assembly has
the power to sell the property OF the State,
yet it has no power to bargain away the
trust of taxation, and as it is a fraudulent
breach of trust participated in by the beue-
ficiary, the court has the power to investigate
the question of fraud.
2. That there is difference between law
and contract. That the one is made by the
general assembly as a sovereign act, while
the other is an agreement by the public
agents with one or more, and, as it is there
fore not a sovereign act, if fraud intervene
it may be inquired into, and if the pubic
agent is shielded the fraudulent beneficiary
is not.
/. This is not suit against the State. If
the act be valid, the suit must fail; but ii
void, the funding board is without authority,
and it may be eDjoined.
2. The act of 1878 was passed to protect
the State in the control of its revenues
against the interference of the Federal
courts, and the obj ct of this suit is in har-
mony with the act.
D. taxpayers nave sucn peculiar interest
as clothes them with the right to maintain
the suit.
4. When the contract is complete the in
Jury will be irreparable, as the State courts
will then no longer have the ultimate juris-
diction.
3. The policy of the convention OF 1870,
the antecedent legislation of the State, and
the decision of this court all have attempted
to protect the revenue from infusion by the
Federal courts, and this policy indicates the
peril and the necessity Tor relief.