Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1882-02-12
Judge Ewing

said: "No court shall have the authority to
entertain any organized suit ag inst the
State or against any officer of the State with
the view OF reaching the State. This is in
accordance with the act of 1873. | see no
objection to the chancellor Diminishing the
bill on his own molten. Before the demurrer
10 filed the court may look itself 10 see
whether the conrt has jurisdiction, and may
of It's own motion dismiss the bill. This is
a suit against the State. Whether the fund
ing board are officers or agents OF the State
they cannot be reached by this bill. The
act is prima facie the law of the land.
They do not call them officers. but it is evil
dent they are trying to reach the State. Has
not the State protected herself by the act of
1873? The State is a necessary party to
suit that interests her. The bill guid tinaet
does not lie TO protect remote injuries. The
question, 1t seems TO me, is political strug-
gle, and not to protect honest rights and
laws. The question IS asked, is there no
way OF stopping unconstitutional acts? This
seems to have been considered in the act of
1873, and thus passed to prevent any suits.
No taxpayer is at present suffering and
there is no evidence that he will suffer. The
compromise IS favorable 10 the State
and its citizsns. Certainly there can
be no irreparable mischief in denying
tine right to investigate question in ad vance;
but there is irreparable mischief in not set
thing a conflict that will forever affect the
State. Is it proper that this, our court,
should decide a question unconstitutional
for fear some other court may declare ii I'M
constitutional? Is is possible to try a ques-
ton between the taxpayer and a stranger?
Is 1t possible to try a question between the
taxpayer and an officer of the State? The
cases in regard to the removal of county
seats have no analogy to the present case.
There is no case in our State where an officer
Il. L.
the order of the State. The act is
primo faeie the law of the State
and must be held to be conclusively
so until the contrary is shown. As citizen,
| was not in favor of the 1908 bill, nor the
coupon feature in it. | was in favor of re-
ducirg it. But, as it has passed, | am, as
judge, called upon to consider it. The ques
ton as to the inability or ability to pay
debts cannot arise in the discussion OF the
question before us. That thirty taxpayers
can arrest the carrying out of counter act
by the State when there is no allegation that
they applied to the governor, and when they
have not alleged any special injury to them
different from any other taxpayer OF the
State, is not my view of the law. The cases
where suits can be brought by taxpayers are
against the municipal corporations, but the
State is not a corporation, she is
a sovereign. She is not a trustee for
the taxpayer. as in the case of the
municipal corporation, being a trustee and
the taxpayer The cestui que trust. No taxpayer
can bring suit where he cannot show that
he has Sustained a special injury. 1t seems
impossible to discuss the character of the
general assembly without they are parties to
the bill Treachery by the legislature has
never been allowed by the court to invali-
date an act. The charge of bribery may be
submitted to judge who may himself be
bribed. The judiciary cannot absorb the
power of the legislature. There are cases
which are Gbsgue injucia, and the courts can
not entertain them, and this one, think, is
one of them. The power to make the con-
tract, it seems to me, gives them the power to
incorporate the coupon feature. If the con-
tract is unconstitutional it may be repealed by
the next legislature. If it can be enforced
after it is consummated, it is because it is a
contract. Ii it is not a contract, then the
courts win not enforce it. The law may be
uuwise but it is not, Tor that reason, uncon-
stitutional. What injury will be done, then,
if the act IL constitutional, and the contract
no contract at all, and can be ignored or re-
pealed by subsequent legislature? Ii it is
unconstitutional al all, it is upon a specula-
tive possibility to repeal the contract founded
on an unconstitutional act, is not impairing
the obligation of a contract, and hence there
is no threatened damage TO the tax
payers. We are asked to prevent
something that does not exist. The subsequent
legislatures still have the right as 10 whether
they appropriate the money or not II they
do not make appropriations then it is with
them. To suppose that the Supreme Court
would decide otherwise than we would, and
therefore we should decide as they think we
would, ard in conflict with our views, is a
libel on the Supreme Court OF the State. Ii
the coupons are drawing money from the
treasury then the appropriations are already
made and the sovereignty of the State is
not take ii away from any subsequent legis-
lature. We have an existing debt which we
should settle. This act settles it at an abate-
ment of interest and does not violate any
constitutional enactment.