Year: 1879

OuAO VI Lu0 INTEREST," auu AlLQOu y


the public judgment of mAnkin


wherever the question is discussed
) will be, that to take $500, ar


nually out of an obligation of 81


44O.O 900 is very big slice, it vii


not shock the public sense and sue


bondholders as do net agree with it


will have no sympathy in the courts


Not so if we say we will pay moth


ing.


Our danger lies in question no


yet raised (; and while some may sal


that we need not raise questions 70


our creditors, true wisdom is to as


sumo that the legal profession, wheI


taxed to protect and save twenty


five or thirty millions, will quickly


see whatever is to be seen in the


way of legal redress. ...


1t is supposed our safety lies il
the Eleventh amendment to the
Constitution of the United States
in these words: The judicial power
Of the United States sball not be
construed to extend a. any suit in


aw or equity, commene ed or prose
cuted, against one Of the United
States by citizens of another State.
or by citizens or subjects of for.
eign State"


And certainly under this provision
of the Constitution, the State OF
Tennessee cannot be sued; but we
had as well make up our minds that
we will have to meet the question /;
whether the holders of our past due
coupons being citizens Of other
States can, without making the State
a party-in the United States Courts
sequestrate our revenue as it may be
collected, and by making the State
officers and collectors parties, Rp-
propriate enough of our revenue to
pay the coupons on the entire debt
as they may fall due. A careful ex-
animation of this question will salts.
fy the profession that we are in
great danger if we fall into the hands
of a progressive court, willing to
make some advance in favor of cred.
itors about to lose all. BY an ex-
animation of the case of Osborn VS..
United States Bank, 9 Wheaton 73S,
it will be found that the Supreme
Court of the United States, while
Marshall and Story we're both on
the bench, Marshall delivering the
opinion, decided that 'as the State
cannot be joined as a defendant, its
agent may be sued alone. And if
he has specific moneys and notes
wrongfully taken they may be or
dered TO be returned, and that the
prohibition to sue a State contained
in the eleventh amendment to the
Constitution does not extend to
cases in which the State is not made
q party on the record, even if the
State has the entire ultimate inter-
est in the subject of the suit"


This was a suit brought by the
Bank of the United States VS.. the
Auditor and Treasurer of the State
of Ohio, setting forth that under an
act of the Legislature Of that State,
the State had levied and collected
$98,000 from the Branch Bank of the
United States in Ohio, and that this
was illegal, the State having no right
to collect taxes from this bank. And
perhaps no case that ever came be-
fore that court was more fully con-
sidered, and at last, after re-argu-
ment the court affirmed the decision
of the Circuit Court, holding that
the State officers should restore the
money to the bank, the money hav-
ing been collected as before said
under an act of the State of Ohio
levying tax for the benefit of the
State on the branch of the United
States bank in Ohio.


Among other things the Court
said: .....e- ...-.


If the State of Ohio could have been
made party defendant, it can scarcely
be denied that this would be a strong
case for an injunction. The objection
is that, as the real party cannot be
brought before the court, suit cannot
be sustained against the agents of the
party and cases have been cited to
show that court of chancery will not
make decree, unless all those who are
ohOOG0AbAdAl1 AhtCAO6ICu DC ulhuC DdIll6S
to the suit.


This is certainly true where it is in
the power of the plaintiff to make them
parties but if the person who is the
real principal, the person who is the
true source of the mischief, by whose
power and for whose advantage it is
done, be himself above the law, be ex.
empt from all judicial process, it would
be subversive of the best established
principles to say that the laws could not
afford the same remedies against the
agent employed in doing the wrong
which they would afford against him
could his principal be joined in the suit.


An again the Court said:


The fifth objection to the decree is
that the case in the bill does not war
rant the interference of court of chan