The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1888-04-20

lo'f, ny u IclnOCratlc Legislature, Forbid
ding the payment of principal or interest
OF the said bonds, and constitutional
amendment, adopted November 3, 1880,
which repudiated and forbid the payment
OF the bonds.
:. The complainant calls on the court to
declare these several acts OF the Lcgisla-
ture and this constitutional amendment
null and void. THE amendment was
ratified by majority OF III 900 OF the
popular vote.) And he asks Tor an in
junction as necessary TO protect your
orator and the said bondholdcrs in their
federal rights" etc.
THE SUIT.
The suit was against the State and Mr..
Roberts, the Auditor OF the State. The
summons was issued 10 and served upon
the Governor, Scales; The Attorney Gen
eral, 4. /. Davidson, and the Auditor.
The Attorney General on the rule day,
came and said that the State could not CON
sent to be Il party defendant to the COM
plainant's bill, and asked the court TO dis
miss the bill as to the state.
The Auditor demurred aud denied re-
sponsiblity and authority TO disregard the
laws OF the State At the November term,
1886, the case was argued, and the dccis-
ion OF the court reserved.
AT The next term, June, 1887, at Raleigh,
the decree was made by Judge Bond in
favor of the complainant, Temple. The
decree was that the State OF North Caro-
lima was indebted TO Temple for the cou-
pons and the interest thereon, as above
stated, (which amounts the said State Is
hereby adjudged and decreed TO pay 20 the
said Temple" And il WAS ordered that
W. y. Roberts, the Auditor, must proceed
10 make payment.
A certificate of the division OF opinion
between the judges was ordered. The dis
trict judge, Seymour, held that a suit could
not be maintained in the court by citizen
OF the State against the State. but in such
cases the opinion OF the circuit OF supreme
court judge, sitting with the district Judge,
is paramount.
In the brief fled in the supreme court
by Messrs. Battle and Aiorlcrai. counsel
for the State, they rely entirely upon the
legal principle stated by the district Judge
that n citizen Of State cannot sue the
state, and they present formidable array
Of authorities in its favor. Indeed, il seems
never until recently 10 have been disputed.
The opinions OF Hamilton aud Madison, OF
Webster and others, with the uniform de-
cisions OF the courts in England and Amer
lea, are all TO that effect.
The decision OF Judge Bond Is probably
bascd on the clause Of the constitution
which, while defining the limits OF United
States judicial authority, denies 10 a citi-
zen Of another state on 10 foreigner the
night to sue State in tho federal courts
and says nothing about the citizens OF the
State suing the State in which they reside.
But upon Judge Bond's ruling q citizen Of
Virginia wishing 10 bring suit against
North Carolina has nothing 10 do but move
over the line and thus render the conslitu-
tional restriction nuga;ory.
UNCONSTITUTIONAL.
But back OF these legal impcdimenis 10
the validity OF the claim before United
States courts lies another, which thccoun-
sci for the state have not thought IL ncccs-
sary to call into recognition before the
supreme court II the United States. That
impeachment is the fact that the bonds were
issued in violation OF the constitution Of
the State.
In an analogous case before the supreme
court Of North Carolina in 1869, Chief
Justice Pearson gave AN opinion which
demonstrates the unconstitutionality Of
these special tax bonds. The case wasthat
of the University railroad against the Gov
ernor aud Treasurer
The fifth article, Section I, Of the con.
stitution provides that ''the General As.
sembly shall levy capitaiion tax on every
male inhabitant OF the State over twenty
one aud under fifty years of age, which
shall be equal on each 10 the tax on prop
erty valued nj $500 In cash. The commits
sioners Of the several couniiesmay exempt
from capiiaiion tax in special cases on ac-
count OF poverty and iniirmity, and the
State and county capitation tax combined
shall never exceed 81 on the head"
The chief justice held that: "Thc act
under consideration is in violation of the
constitution in this The tax levied by II dis
turbs the proportion which, by the constitu-
/ ton, capitaiion tax must bcart0 the tax ON
the value Of property, to-wit: The tx on u
poll shall I've equal 10 the tax OF $500 worth Of
property Here We have the proportion.
Then follows q provision: The State and
county tax combined shall never exceed
g on the head, and the necessary eflecits,
that the state and county tax on the value
/ Of property shall never exceed - on 500
worth of property, and the effect also Il,
| that II tax un poll n less than -, then
the tax on $500 worth OF property must bc
less in the same ratio. In other words.
the tax on the poll Is the standard by
which the tax on property Is levied"
The chief justice proceeds 20 show that
the poll tax was fixed at the same session
Of the Legislature which made the appro-
prialions 10 railroads In what was entitled
''the revenue act" at Sl.05 per head,
and the tax on property, therefore, could
not exceed this limit on every $500 worth.
But the limit had already been reached
before the passage OF the university act,
and hence the additional appropriation for
II, however small, WIS unconstitutional.
The appropriation 10 the Wilmington,
Charlotte 4 Rutherford railroad was OF
still later date, and hence for the greater
reason the tax levied for II transcribed
the constitutional Limitation.
The people Of North Carolina 60 still
further. For Il Is dcmonsirahlc that.tho
body claiming 10 be Legislature, which
authorized the issue OF the bonds, was NO
Legislature. II was not elected by the
voters who we've qualified by the consiilu
ton oi 1856, which gave universal suffrage
but by those only who were authorized e.
vote for the ratification OF the constitution
by the reconstruction acts Tic lcgcrde-
main by which thcrc-onlranchiscd ciiizcni
that Is TO say, the old ruling class were
cheated out OF the right 10 vote for Govern
or, State officers and congressman was 4
require the election 10 take place for thcs'
officers on the same day on which the con
sttniion was ratified. The body chosen
therefore, was no Legislature OF Nortl
Carolina, but a convention elected underi
| miltnrv order bv auch neruons "a tho mil