# Lynn v. Polk

> Tennessee Supreme Court · December 15, 1881 · 76 Tenn. 121

URL: https://www.frixlaw.com/law-library/cases/8297040

## Case

- **Full name:** Henry J. Lynn v. M. T. Polk
- **Court:** Tennessee Supreme Court
- **Decided:** December 15, 1881
- **Citations:** 76 Tenn. 121
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Turney
- **Judges:** Deaderick, Ereemakt, Ewing, McEahlakd, Turney
- **Cited by:** 17 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8297040

## Opinion text

Turney, J.,
said:
On the 5th of April, 1881, the Legislature passed an act entitled “an act to settle and compromise the bonded indebtedness of the State.” The 3d section of the act is as follows:
“Be it further enacted, that the coupons on said compromise bonds, on and after their maturity, shall be receivable in payment for all taxes and debts due the State, except for taxes for the support of the common schools and for the payment of the interest upon the common school fund, and said coupons shall show upon their face that they are so receivable.”
The 9th section provides the form of the compromise bond, in which it is declared: “The coupons of the bonds as they become due are receivable for- *123 all taxes and debts due tlio State of Tennessee”— omitting the exception designated by the 3d section.
The 10th section .makes it the duty of the funding board (composed of the Secretary of State, Comptroller and State Treasurer), immediately upon the receipt of the original bond or bonds and the issuance of the compromise bond or bonds, to cancel said original bond or bonds.
This bill was filed on the 24th of May, 1881, attacking the act for various' causes, among them alleging its unconstitutionality, and alleging that complainants are all resident citizens of the State of Tennessee; have been for many years ; are now holders of property not exempt from taxation; and that thej' pay taxes to the State on their property. The bill charges that defendants are preparing with all possible haste to commence the work of funding. One of the circuit judges for the State granted a fiat enjoining action upon the part of Polk, Nunn and Nolan, the members of the funding board. There-was a motion to dissolve the injunction. On its hearing the chancellor, of his own motion, dismissed the-bill, and complainants appealed.
In support of the action of the chancellor, it is,, first, insisted complainants cannot sue at this time- and in this manner. As we have seen, they are citizens and tax-payers of the State. It must be that, to the extent of taxes for which they are respectively liable, each has an interest in the questions ’ raised. The act of the Legislature and the defense to the bill constitute an effort in the direc *124 tion to make each pay such an amount of money aá may be assessed upon his property, to the end that' the law shall be carried out. The act points as distinctly to each of the complainants and as directly affects his estate as if he were mentioned by name, his property enumerated in a statement of its character and kind, with an actual calculation of the proportion of the amount of the debt and interest it must pay, with the _ bonds and coupons specifying the facts and the individual 'obligation of each complainant. If the law is valid, it makes an increase of taxes to be collected of each tax-payer, to be proportioned in the distribution of the additional levy of the annual three per cent, interest on the funded debt. The act, Avhile in its present shape, is merely a proposal to contract. If the injunction is cut loose, and the creditors accept its terms and fund their debts, it is then an executed contract, and gives to the creditor the right and power to collect by law three per cent, of taxes annually, more than can now be collected by law. Without the contract the creditor is unable to force a payment of any part of the debt due him. The argument that the tax-payer is bound in honor and morals to pay, under existing laws, the debt and six per cent, interest,' and therefore can sustain no injury from a compulsion to, pay by law one-half that interest, and therefore ought not to be heard to complain, cannot avail with the courts. "We .have nothing to do with the honor or morals of complainants; these they must decide uj>on for them.selves. The only question for us to decide, upon the *125 right to sue, is, have complainants an interest in the subject-matter of the suit such as will entitle them to invoke the judgment of the court upon legal questions? It is an inherent power of courts of equity to prevent, as well as to redress grievances, and if it is unlawful to compel debtors to pay three per cent, upon a contract drawing six per cent., but which rested upon no law save the honor and morals of the debtor, then the debtor may say he is aggrieved, and ask the intervention of the courts to prevent the enforcement in part of that agreement. which the creditor accepted solely upon his faith in the honor of the debtor. In such case, why may he not say, “the law must leave us as it found us”? And as it is, the creditor is not permitted to say to the debtor, “your security of honor and morals is not available, and I will make a contract to bind you in law as well as. morals.” Then, as these complainant tax-payers could not by the law at the time of the contract, and which is part of that contract, be compelled to pay anything, now that it is attempted to change the contract and the law, so as to compel the payment of three per cent, yearly on the $27,000,000 of indebtedness, or their proportionate share of the additional annual tax of $810,000, it must be that they have a direct and personal interest in the questions, and are proper parties to make them.
I am unable to appreciate the argument that, in any event, the suit is prematurely brought; that if complainants would have the right to sue at all, they must wait for some wrong, actual or threatened. The *126 latter lias already transpired, so far as the abstract right to sac is involved. As we have seen, the defendants are making all possible haste to comply with the act, fund the debt, and fasten the per centum on the tax-payer. This is not denied. On the contrary, the effort to be relieved of the injunction sustains the allegation. If, when the act is a complete or, executed contract and 'is being directly enforced, the tax-payer may resist it and relieve himself from its impositions, I can see no good and substantial reason why he may not strike it at the- threshold and destroy it in its half-grown life. If ■ the taxpayer may move at all, he may certainly move when he is . imminently threatened, as here. A preparation to affect him is the beginning of his right of action, and he may commence defensive and protective proceedings. If the tax-payer may not move in this matter no one can, and there may be a palpable and egregious wrong without any means of redress — a condition never admitted in the law.
If there is no precedent for taking cognizance of the question, we must do as the courts of all ages have done in novel matters, — make one, founded in reason and solid justice. On this question we really need no case antecedent; general principles are broad enough to and do embrace it. I think, however, we have precedents in our reports. In Bradley v. Commissioners, etc., 2 Hum., 428 , the Legislature had passed an act establishing the new county of Powell, and appointing commissioners to organize it. The bill was filed to enjoin the commissioners from or *127 .ganizing the county as directed by act of 1832. It was argued that one or two private individuals cordd not seek the aid of a court of chancery for the purpose of the bill. Judge Turley said: “The convention of the State, which formed the Constitution, thought proper to place restrictions upon the power of the Legislature to form new counties, and of consequence, any attempt to do so contrary to the restriction is a void exorcise of the power, which can and mud be dapped by the judicial department of the State. There is no other place to which an appeal can be made, and if the courts cannot interfere, the Constitution, if violated, is a dead letter. * * * It is the inability of courts of law to operate prospectively by prohibition for the prevention of mischief, that has; established upon clear .and definite grounds that portion of chancery jurisdiction which rests upon the doctrine of quia timet. It embraces a great variety of interests, which we need not and do not design to investigate here. It sufficeth for this case to say, that it always applies where great and irreparable mischief may be the consequence of the illegal action, which the common law counts cannot stop. * * * If the establishment of the •county be unauthorized, its organization ought to be prohibited, and this no court but’ one of chancery can do. It is submitted, whether one or two private individuals can seek the aid of a court of chancery for this purpose. We think that any person aggrieved by the proceedings may apply for the remedy.”
In that case the liill was filed to prevent action. *128 on the part of those named in the act as its executors. Two citizem complained “that they were about to be aggrieved.” In this case the complaint is, to say the least, equally as strong, and the grievance to be suffered equally as’ great. The cases are in principle identical. In the one preventivo relief was granted, then why should not the same relief be had in the other'!
The same principle governed and was announced in the cases of Cocke v. Gooch, 5 Heis., 305, decided in 1871, and Bouldin v. Lockhart, 1 Lea, 195 , decided in 1878.
In Ford v. Farmer, 9 Hum., 154 , Bradley v. Commissioners was reviewed and reaffirmed. In the later case, Judge Turley said: “The act of the Legislature is a' nullity and void, -and every act done in pursuance of it is void, and not merely voidable, — an act which they have no right to pass, an authority which they could not delegate,' — and the acts of the commissioners stand just as though they were self-constituted authorities, and the officers and others as usurpers without color of authority.”
It is next insisted “the suit is against the State.”
We are referred to cli. 13, sec. 2, of the Acts of 1873, which is: “That no court in the State of Tennessee has, nor shall hereafter have any power, jurisdiction or authority to entertain any suit against the State, or against any officer of the State acting by authority of the State, with a view to reach the State, • its treasury, funds or property.”
The court must necessarily inquire, are the defend *129 ants officers of the State? The act does not make them so by simply constituting the incumbents of the offices of Treasurer, Comptroller and Secretary of State a funding board. The selection was a means of convenience and a mode of preventing vacancies by so arranging the appointments as to have always a full board, notwithstanding deaths, resignations, removals, etc. It would have answered the same end to have declared that the sheriffs or any other officers in three of the counties in the State should have constituted the board. But if wc admit that a funding board properly created are officers of the State, then are these in the present case so created, and are they acting by “authority of the Statet” The authority of the State can only exist in a commission or coihmand issued or ^given in conformity to the requirements of the Constitution. Á legislature is the creature of the Constitution, and cannot rise above it or go beyond it. The Constitution is its chart and guide, and by it the Legislature must be governed and controlled. Whenever the law-making power violates the Constitution, its act is a nullity, and, being a nullity, is not an authority of the State. Some cases are presented in which it is said that it can make no difference that the law under which the officer assumes to act is unconstitutional, that still he • is an officer of the State, and a suit against him is a suit against the State. No good reason, it seems to me, is given for such holding, nor am I able to see how it is possible to give a reasonable reason for. such holding. It can only be worked out through the assumption *130 that the Legislature, the creature, is superior to the Constitution, the creator. Legislatures may be abolished by constitutions, but constitutions can never be abolished by legislatures. One may make and unmake, may create or destroy, enlarge or contract the other, while that other, dependent upon the one for its creation and life, must yield .to it implicit obedience and reverential deference. The officers of the State constituting the three departments of government derive all power and authority from the Constitution. That instrument is the master, the governmental departments the servants. The one is the work of the people and can only be invaded, altered or changed by the people. The latter are works of the Constitution through the people. By what rule does the servant rise above the master? There is no higher law than the Constitution, and if its written and solemn injunctions may be lightly overlooked, the experiment of attempting a limit or restriction to power is a_ failure and the Constitution “a dead letter.”
If the mandates of the Constitution are to be observed, there is not, nor can there be such thing as an officer of the State acting by authority of the State in pursuance of an unconstitutional law. If the officer and his office are created by the unconstitutional exercise of power or the exercise of power not conferred by the Constitution, the first is a violation of power, the second its usurpation. A law unconstitutional is void, and confers neither right nor authority. Officers created by it are wrongdoers whenever they attempt its execution.
*131 I am compelled to confess my utter incompetency to comprehend the reasoning upon which it has been hdlden that unconstitutional enactments may be, or must -be treated as authority of the State. To my mind,' it is the climax of absurdity.
Then, if the funding act of 1881 is unconstitutional, this suit, against officers brought into being by it, is not a suit against “officers of the State,” but is a suit against persons attempting to commit a wrong, and may be maintained. See cases already cited from 2 Hum., 9 Hum., 5 Heis. and 1 Lea.
The argument that the bondholders are not before the court, and that therefore the relief sought (other questions out of the way) cannot be granted, is untenable for the reason that the bondholders are as yet no parties to the action charged to be the purpose of the defendants. The act is how merely in the nature of a proposition to be- offered to the bondholders by the defendants; there is nothing up to this time connecting them with the defendants or the act they are proposing to execute. The bill is filed to prevent the tender of a contract of settlement, and therefore the bondholders are neither necessary or even proper parties.
The next question is: Is the act called the funding or 100-3 statute constitutional?
Several objections are assigned in the bill and also in argument of counsel. The first I will notice is, that section 3 of the act violates so much of art. 11, sec. 12, of the “ State Constitution as ordains: “ The State taxes derived hereafter from polls shall be ap *132 propriated to educational purposes, in sucli manner as the General Assembly shall from time to time direct by law.” This section of the act only excepts from payment in coupons such taxes as are for the support of the common schools and for the payment of interest upon the common school fund. A reading of the 12th section of the Constitution referred to shows very plainly that the common school fund is one thing and the educational fund to be raised from polls quite another. The common school fund is defined as a fund heretofore appropriated by law by the General Assembly for the use of common schools. The educational fund is to be hereafter derived from polls, and may be more comprehensively appropriated to educational purposes, including not only common schools, but colleges, academies, public and private schools, libraries,, in fact every enterprise that may in its nature be “educational” or an “educational purpose.” Besides, it is made the duty of the Legislature, by sec. 28 of art. 2 of the Constitution, to levy a poll tax of not less than fifty cents nor more than one dollar, and by see. 1 of art. 4 it is ordained that each voter shall . give to the judges of election satisfactory evidence that he has paid his poll tax,without which his vote cannot be received. Thus we see that the Constitution not only creates a general educational fund, but guarantees its perpetual existence by making the elective franchise depend upon contribution to it.
Now, if sec. 3 of' the act is valid, it will divert this educational fund from a constitutional to a legislative appropriation, and in a very different direction *133 t<3 the organic intention. For the present, the poll-tax fund may be protected under the third section by virtue of sec. 962a of the Code, but if the funding act becomes the law, the Legislature would be cut off from the constitutional right of repealing that section of the Code and applying the fund to an educational purpose other than common schools. It is only so long as it remains a common school fund that it is not payable in coupons. Whenever it is impressed by the Legislature with another than a common school feature, it fails of the protection of exception. It is, it seems to me, begging the question to suppose the present law of the Code will never be repealed. The Legislature has the right to repeal, -and it is not our province to impugn that right by suppositions.
The question, then, is, which must succumb, the Constitution or the act of the Legislature?
In this connection, it may as well be noticed that the exception of the third section of the act is omitted in the ninth, prescribing the form and conditions of the compromise bonds. That form, which is as much a part of the act as the third section, makes the coupons receivable for all taxes and debts, thereby including the common school fund and the interest upon it, so that in fact the entire 12th section of article 11 .is directly violated.
It is also objected that the Legislative enactment violates sec. 24 of art. 2 of the Constitution, which ■declares: “Ho money shall be drawn from the treasury but in consequence of appropriations made by *134 law; an accurate statement of the receipts and expend^ itures of the public money shall be attached to and published with the laws at the rise of each stated session of the General Assembly.” This clause of the-Constitution must be considered in connection with sec. 3 of the same article, which is: “The legislative authority of the State shall be vested in a General Assembly, which shall consist of a Senate and House-of Representatives, both dependent on the people, who-shall hold their offices for two years from the day of the general election.”
To rightly construe these two clauses, I will try-to put them into one and give them such meaning as it seems to me was the purpose of their authors. I render them thus: The Legislature shall consist of a Senate and House of Representatives, the term of office as Senators and Representatives to be just two years from the day of the general election. At the end of the two years their representative capacity ceases, and it will be for the people to say at the ballot-box who shall compose the Legislature for the next two years. Each Legislature shall cause to be made and published with the laws it shall have made an accurate statement of the receipts and expenditures of the public money for the last two years before the rise of its session. It may have the power during its session to make the necessary appropriations of money to be drawn from the treasury in conformity to such law as it may pass for that purpose, the money so appropriated to be drawn and used for the benefit of the State in the vacation between one stated *135 session of the Legislature and the beginning of the next.
It is conceded to be the general rule that one legislature cannot bind or commit its successor to its laws or policy. It was certainly the policy of the people in convention to so frame their organic law as to enable them to test the wisdom, from its results, of any legislative act, and to reserve to themselves, to be exercised through their legislatures, the right of repealing or modifying' legislation to conform to their needs and wants, hence a limitation upon the terms of office of the law-making department. It was the-object of the convention to leave no room for confusion or dilemma because of inability to reach the treasury; and also, at the same time protect it from drainage by a legislature for a longer time than its own existence. The unforeseen exigencies that might arise, the changes that might come to the State, its wants, its advancement, its prosperity or adversity, were studiously left for the consideration and action of each biennial General Assembly. The two years afford ample time for development and the' suggestion of the necessary changes in laws, and to bring to public attention the demand for taxation, and its amount, and the capacity of the people to pay it.
Tt seems to me clear indeed that it was the fixed determination in the adoption of the clauses last cited, that no legislature should exceed the length of its own life in its appropriations of public moneys, and that each legislature should only be credited with foresight *136 sufficient to provide for the contingencies of the two years intervening between stated sessions.
I do not doubt the power of the Legislature of 1881 to have provided for the payment, of the interest on the State debt for two years, and to have made an appropriation of money therefor. This action would not have interfered with its successor.
If it be determined that it may have gone further, as it has attempted in the act before us, and have appropriated for ninety-nine years, the result is that each of about fifty consecutive legislatures must of necessity take, as a basis of their action in providing for the expenses of the State and the revenue to be collected, the law of that Legislature, and declare that an annual tax of about $810,000, is already riveted upon them and must be paid before the natural, necessary and inevitable governmental expenses; that it has priority over every other consideration, and is the beginning point in the item of taxes to be assessed. It must decide that whatever may be the condition of the State, either for prosperity or adversity, in peace or war, in health or pestilence, in plenty or famine, still nothing can be drawn from the treasury until the creditor has been paid annually eight-tenths of a million dollars. This obstruction must be removed before any legislature can give its attention to the affairs of State. Such contingencies were meant to be guarded against in the limitations upon the legislature in the length of official term and mode of drawing money from the treasury.
One general assembly has as much in its ’ favor *137 the presumption that it will do right, as another. The same confidence is reposed in all alike; the duties of one are precisely in ' all things as those of another. The constitutional powers of the law-making body of 1881 are in nothing different from those that will attach to the legislatures of ten, twenty or ninety-nine years hence; all are alike defined and restricted. It is presumed that each legislature will hereafter do all in its legitimate sphere to protect, defend and preserve the honor, faith and credit of the State, and that it will use all possible lawful means to pay or settle the debt of the State for which its faith and credit are pledged. It was to this the creditor looked when he became such, and I think he is in no danger of loss by repudiation. He has not now, at all events, a right to demand or expect a first mortgage upon the life of the State, i. e., its taxes and taxing power.
Another purpose of the restrictions mentioned is to prevent oppression and secure ’ protection, not only against extravagance and corruption, but against mistake. This act, if recognized,- will very likely become oppressive. When we consider the uncertainty of the future, and the great length of time during which the contract is proposed to operate, not only as a legislative enactment, but also in effect as an organic one, we cannot conclude the convention meant to confer such latitudinal authority upon the legislature as is here assumed. Put the question to any thoughtful man, would the convention, if it had been proposed, have given to the legislature the authority *138 to fix by statute a specified tax upon the people for a long term of years to pay interest upon the public debt? The answer would be promptly, no. Ask further, why not? The answer is, because that convention was framing a chart for the safety and good government of the people of the State, and would not have been willing to have risked so much to the frail judgment of legislators, to say nothing of their-exposures to temptation to dishonesty. To have grant-ed the power, would have been against the plain and obvious dictates of reason. In the case of Bank of the State v. Cooper, 2 Yer., 603 , Judge Green says: “It does not follow that because there may be no restriction in the Constitution prohibiting a particular-act of the legislature, that such act is therefore constitutional. Some acts, though not expressly forbidden, may be against the plain and obvious dictates of reason. The common law, saith Lord Coke, adjudgeth a statute so far void.” I think the principle sound, and, in the absence of constitutional restriction, would apply it in this case.
Another and the most serious objection to the act is, the legislature, being the financial agent of the State and having no authority to delegate that agency, has in fact assumed to do so by this legislation. If the proposal to compromise is held good and shall be accepted by the bondholders, it will then be out of the power of any legislature to at all interfere with the law under any . circumstances. The provision that the coupons shall be receivable for taxes and all debts due the State, becomes a contract. The language of *139 tbe provision gives to the holder the right to employ such means and legal process as will compel compliance, and so far, the financial agency ydll be transferred to the creditors and through. them to the courts,, thus taking the management and control of the treasury out of the hands of the legislature and placing them beyond the protection of the courts of the State. The moment the contract is executed it becomes the-subject of Federal jurisdiction, and all the State courts are subordinate jurisdictions, and whatever may be the rulings of the State courts, and wherever suit may be instituted for the enforcement of the contract, the Supreme Court of the United States will have the final, and of course conclusive, jurisdiction; and its decisions will be binding upon the State courts.
This will be a surrender of sovereignty. The State-will no longer be its own guardian, with power to make provision for its support and existence, but will be the ward of the Federal Government for ninety-nine years, its estate to- be administered at the beck and nod of the bondholder, — a centralization of the worst form.
A further consequence of the act will be &t surrender by the State of its inherent, as well as constitutional right of determining when and in what court and in what form it may be sued, or of withholding or withdrawing its liability to suit at its pleasure.
It is the right and duty of the State to hold its own purse strings, to be its own financial agent, to provide for its own necessities, and to maintain its own sovereignty. These rights ■ and duties must be- *140 exercised and performed at any cost and under all circumstances. If- the act before us is declared to be constitutional, they are all gone, by an absolute transfer to the- bondholder, to be administered in a foreign court.
I think the act unconstitutional and void, and that the injunction was properly granted and should be made perpetual.
By this opinion I am not to be understood as favoring repudiation. I want the State to be honest.
I express no opinion -on the question of bribery, because I think the constitutional objection to the statute the primary one; that being resolved adversely. to the law, is conclusive of the whole case. I think the settlement of one question controlling and overwhelming all others, is as far as a court should go in any case. It is always time enough to solve legal • problems when they are material to results.
*141 Ereemakt, J.,
said:
On tbe 5tb day of April, 1881, tbe Legislature passed a bill entitled “An act to compromise and settle tbe bonded indebtedness of tbe State of Tennessee.”' Its provisions, so far as material, may be gathered from tbe following statement, and citations from the-act:
It provided for funding the bonded indebtedness-of tbe State, with past due interest, up to July, 1881, by new bonds, to be issued through tbe agency of what is called a “ Funding Board,” bearing date July 1, 1881. These bonds are to bear interest at. tbe rate of three per' cent, per annum, payable semiannually in the city of New York, coupons for tbe interest to be attached to each bond.
By tbe third section of tbe act it is provided,. “That tbe coupons on said compromise bonds, on and after their maturity, shall be receivable in payment for all taxes and debts due the State, except for. taxes for the support of the common schools and for the payment of the interest upon the common school fund,, and said coupons shall show upon their face that they are so receivable.”
By sec. 5. “The Secretary of State, Comptroller and State Treasurer, shall constitute a board, to be designated a funding board, any two of which shall constitute a quorum for the transaction of any and all business for which said board was created. Said board *142 may sit or hold meetings for the transaction of the business created by this act, at such times and places as they may deem wise and proper, to enable holders of Tennessee bonds and coupons to fund the same under the provisions of this act.”
This board by next section is, among other things, authorized, when any legally issued bonds of the State ■or coupons are presented to it, to examine and audit the same, and if found genuine, prepare compromise bonds, as directed, and deliver them to holders, taking up the old bonds.
There are other provisions to effectuate the purposes of the act, that need not now be referred to, except to say that the form and language of the bond is given in specific terms in the 9th section of the act, anc^ for some reason, the exceptions in the 3d sec. of the act are not included in it or mentioned. ' Its language is: “ The • coupons of the bonds, as they become due, - are receivable for all taxes and debts due the State of Tennessee.” The fact is added, that the bond and coupon are issued in pursuance of the act, giving its title and date. It is seen, that taxes for the support of the common schools, or for payment of interest on the common school fund, are not excluded from payment in these coupons by the terms of the contract on its face.
The above, with such references to the act as may be necessary, will serve to present the questions raised by the bill in this case, so far as they grow o'ut of the provisions of the enactment under consideration.
On the 25th of May, 1881, complainants, number *143 ing upwards of thirty persons, citizens of various counties of the State, filed the bill in this case, against defendants by name, who are respectively, for the lime being, the Secretary of the State, Comptroller of the Treasury, and the Treasurer, and as such constitute the “Funding Board,” “created” and provided for by the act, praying for an injunction inhibiting' said parties composing said board from auditing the bonds of the State, or issuing the compromise bonds aud coupons as authorized.,
I shall not attempt to state in detail the large amount of matters found in the bill, much of which I think irrelevant and superfluous, and to say the least of it, not necessary to present the questions raised for decision by the court. It suffices to say, that the injunctive power of the court is invoked on the ground that the act of 1881 is unconstitutional, for reasons given at much length in the bill, and also, that the ■authority to issue the new bonds, and the whole scheme for funding the past due indebtedness of the State was procured by fraud, and by bribing members of the Legislature. The details constituting these charges will be noticed in their order, when the questions are hereafter discussed.
This ease is one of the highest gravity ever submitted to this court, seldom equalled in any court, both by reason of the large amount involved or to be affected by its decision, as well' as the weighty questions of law, constitutional and general, presented for solution. It has been argued at unusual length, and with an ability worthy of its importance. Tts dis- *144 eussion has brought into play the best talent of the bar of our State, and they have shown themselves worthy of the high reputation borne by them, by the learning, force and eloquence with which the case has been urged upon the attention of the court, on each side of the contest. It now becomes the duty of this court to investigate and settle the issues made and debated so ably before us.
In doing so, we have felt the gravity of the duty imposed, and have given to all the questions presented, our most earnest consideration. With the policy or wisdom of the measure before us we have no concern, as a court. With the party or political combinations or accretions that may have gathered around this or any other measure, as Judges, we have neither sympathy or the opposite. We shut our eyes to everything except the simple question, What is the law of the case? When that is seen, as we understand it, it must 'be fearlessly announced, in the calm spirit that belongs to our high places. Consideration of consequences is not for us — only duty is to be known, and - faithfully done. Where it leads, is our pathway — • its voice is to us the imperative, which we cannot disobey, and which we would not disobey if we could.
Owing to the importance and weight of this case, contrary to our usual practice, it has been deemed proper that each Judge, who may choose, shall give his own opinion, and the reasons leading to his own conclusions. I now proceed to the discussion of the questions deemed material to the decision of the case as it stands before us.
*145 Several questions, that may be called preliminary to the main issues raised by the bill, are presented, and urged with great earnestness by counsel for respondents. It is proper to dispose of these first. To do so, a short statement of the proceedings in the court below must be made.
In accord with our practice, the bill was presented to one of the circuit judges for his fiat authorizing a preliminary injunction to be issued. This was obtained, and the injunction issued in accord therewith. Thereupon, after service of process, the defendants regularly appeared in the chancery court at Nashville, where the bill had been filed, and moved the dissolution of the injunction, basing this motion alone on the face of the bill and charges therein contained. From these it was maintained, the motion to dissolve, should be allowed, as the decree of the chancellor reciteF, for want of jurisdiction, and for want of equity on the face of the bill. These are the specific points presented as the basis for 'the motion to dissolve the injunction — not to dismiss the bill. After argument by counsel on both sides, the decree states: “ The court being of opinion that there is no equity upon the face of the bill, of its Vown motion, it is ordered, adjudged and decreed, that said bill be dismissed with with costs, 610.” From which decree the’ complainants appeal to this court.
On this statement of facts, in strictness it might-be said, that the only question before us is, whether it is such a case as authorized the chancellor, without a motion to dismiss for want of equity, or any de *146 murrer to the bill pointing out objections, on his own motion, to dismiss, because there was no equity whatever in the matters stated. The rule in such case has been repeatedly stated by this court, perhaps as well in the case of Thompson v. Paul, 8 Hum., 116 -117, as in any other: “If from the face of the bill it appears the court has no jurisdiction of the case, or if it contain no matter of equity whatever the chancellor may properly dismiss on mere motion (that is his own motion) at the appearance term or at any subsequent stage of the proceeding.” It is added, that, where a case is made for equitable relief, but it is defectively stated, the chancellor cannot thus dismiss; or, to use the language of Judge Cooper, in Quinn v. Leake, 1 Tenn. Ch., 70: “ When admitting all the facts stated in the bill, whether well or defectively pleaded, the complainant is entitled to no relief.” See, also, 3 Head, 366 ; 9 Heis., 270.
It seems clear, on principle, that the only question before us fairly is as to the sufficiency of the matter of the bill, either well or defectively pleaded, to entitle complainants to any relief whatever — “ the bill •standing,” as said by this court, “ as if all its allegations are to be taken as true” — that is, all its allegation of facts: 9 Heis., 270.
In this- view it might well be held, that unless the court in this state of case could say, that under no circumstances a decree could be pronounced against these parties on the facts alleged, or that it had no power to make a decree against the parties before it, all the facts being admitted or proven as stated, the *147 -action of the chancellor would be erroneous and ought ■ to be reversed.
The question so much pressed on our consideration, that this is a suit against the State, and is, therefore, one that cannot be prosecuted, would be excluded from our consideration in this view, unless it could be shown that under no circumstances could the court hear and determine a case -where the State, or her officers — for it is assumed ' defendants are officers in this sense, in argument — are defendants. ' If the power to hear and decide in such a case is forbidden absolutely by law, then as no decree could be rendered by the court for want of jurisdiction, it might be that the chancellor . could even on this ground, consistent with the principles we have referred to, dismiss the bill on his own motion. But certainly not if the objection is one in •the nature of a personal privilege, which had not been claimed by the State or parties representing her, and ■authorized to act for her.
The act of 1873 is relied on in support of the position, that the suit is forbidden or cannot b.e maintained. We refer to it now for the purpose, however, of seeing whether it forbids all action by the court, or only gives the right, at her option, to interpose the objection by the State.
The language of the act is: “ Eo court in the •State of Tennessee has, nor shall hereafter have, any power, jurisdiction or authority to entertain any suit against the State, or against any officer of the State, acting by authority of the State, with a view to reach the State, its treasury, funds or property, and all such *148 suits now pending, or hereafter brought, shall be dismissed, as to the State or such officers, on motion, plea, or demurrer of the law officer of the State, or counsel employed by the State.” If this act had stopped at the first clause, its language would have forbidden all right on the part of the court to exercise jurisdiction in the cases specified absolutely, as far as the Legislature had the power so to do. But when it is added, how advantage shall be taken of the exemption, and who shall interpose such objection, it is clear, it is an optional defense. It requires action on tbe part of the State, active interposition on the part of her law officer or counsel employed for the State, by motion, plea, or demurrer. These steps are not such as belong to the province of the court. To make a motion for the law officer of the State, or counsel employed by the State, file a plea for him, or a demurrer, would be a most incongruous proceeding by a oourt — one unheard of in any system of practice known to us. The language of the statute excludes such a course. The nature of the defense equally does so— it being one in' the nature of a personal privilege, an exemption, which the State ought in reason to have as much freedom to waive, as any private party.
The uniform practice, and practical construction of the statute since its passage, in cases of suits against the Comptroller to compel issuance of warrants or claims disputed, is most persuasive evidence in favor of this view. Numerous cases of this kind have been before this court. See Burch, Comptroller v. Baxter, 12 Heis., 601: Alters & Union and American Pub. *149 Co. v. Buroh, Comptroller, Ibid, 607; Marchbanks v. Gaines, Comptroller, MS., Nashville, 1880, and other oases.
Most of these cases were represented by the then attorney general, Col. Heiskell, who is said to have been the author of the act of 1873, and who knew its purpose, if any one did. The same practice has continued under the present learned attorney general, as we know. See Uhl v. Gaines, 4 Lea, 352 . This practice, and the action of this court in those cases, can only stand on the ground we have stated. This court could not gravely hear cases, as a mere advisory body, nor has it power so to do.
No motion being made, either by the State or counsel employed by the State, to dismiss on this account, nor plea, or demurrer filed (nor can we know that any will ever be made by the State, nor even by the defendants to the case), we cannot treat the case as if this had been done — the case standing here on the issues before the court below, and the record then made. To do so, would be to make a case, not review what has been done. The result would be that the record, on this point, raises fairly no question, except the single one, whether the chancellor on his own motion could dismiss the bill, because the State ■ was sued through the officers forbidden to be sued by the statute. He does not assume to have acted on this question, but on the general question of “ no equity on the face of the bill;” and as I think he had no- power to raise the question oft his' own motion, this question might well be settled on *150 this ground. I do not think it is before us for adjudication. The premise in fact has to be made in. the record, where it does not exist, in order to raise the question now for our consideration. This we have no authority to do.
But I think proper not only to express the above opinion on this point, but in view of the dignity of' this case, and the earnestness with which the question-has been urged, to add my views on the precise question made. Is this a suit against the State in any legitimate sense? Is it a suit against an officer, by any sound rule of law established, or under our constitution, that can be defeated on these grounds? By sec. 17 of our bill of rights, it is declared: “ That all courts shall be open; and every man for any injury done him in his lands, goods, person or reputa-tation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” The exceeding breadth of these words, literally at any rate, would certainly have included an injury done by the State. But the convention chose to prescribe a limitation or qualification to the language, and added, suits may be brought against the State, in such manner and in such courts as the Legislature may by law direct. It could not be questioned, if the last words had not been added, that even - the right to sue the State would have been granted absolutely, in all the cases where a remedy-had been affirmed in the first part of the clause. But the convention chose to qualify this right to sue-the State by leaving the manner, and the courts in *151 which such suits should be brought, to the legislative-department. Consequently, it has been held and practiced . on in this State, that until the Legislature acts,, the right to sue the State under this section cannot be effectual for want of this action. I approve this-construction on this point.
But I think it clear, this language of the bill of rights does not allow the absolute exemption from suit, by the Legislature, of any person or officer, simply as; such, but only the State, and may be included under that term. From this it results that whenever the question is made as a defense to a suit commenced,, that the State cannot be sued, and her exemption from suit interposed to defend the suit, the inquiry is,, whether in the sense of this' clause of the constitution,, the State is sued in any proper sense, and if not, all others may be, if they have wronged the citizen or are about to do so, in such manner as will meet the-requirements of a court of equity in such cases. He must have 'redress for that wrong “by due course of law, and right and justice administered without sale, denial or delay.” The act of 1873, sec. 2, cited above, even as to “any officer of the State, acting by authority of the Stale,” etc., requires, as we have shown,, the objection to be made, and the defense to be interposed, by motion, plea or demurrer of the law officer of the State or counsel employed for the State-I might dismiss this question here, as no such motion, plea or demurrer appears in the record, either by the law officer of the State, or counsel employed for the-State, nor indeed by any one else, nor is the State- *152 represented by counsel, as far as we know, at all in the contention before us.
But is this suit “ against the State or any officer of the State, acting by authority of the State, with a view to reach the State, its treasury, funds or property,” within the language of the act of 1873 ? On this question I cannot entertain a doubt. The defendants are in no legitimate sense of the term, certainly not within the intent and meaning of this statute, officers of the State at all. It is the funding board that is sued, in the only way it could be done, that is, by making the persons composing it defendants, it not being incorporated. That board, as a legal entity is, to use the language of the statute, “ created ” by the act. It is, to continue the use of the language of the act, “ constituted,” or made up, of the Secretary of the State, Comptroller of the Treasury and State Treasurer, and designated a Funding Board.” That is, the men who shall for the time being fill these offices are designated, as the constituent elements, making up the unit created by the act, designated a funding board. This unit, so constituted, acts as one, any two of them constituting a quorum for the transaction of the business in hand. I cannot see how this legal thing thus created can be conceived of as an officer of the State. It certainly is not the comptroller, nor treasurer, nor secretary of the State, for it is inconceivable that the three men filling these offices should be combined into, one, and be either officer. The acts of the board are no more the acts of these officers as such, than would be the case if *153 one justice of the peace, one constable, and the sheriff of Davidson county had constituted the board, would have made the act of the board the official act of either of these officers. This unit is constituted of these officers, but itself is no officer of the State, and is not so designated in the act. In fact it is but a funding board — nothing more. It is no more an officer or its constituent elements in this respect officers of the State, than were the commissioners appointed by the Legislature to lay off the county. of Powell, in the case of Bradley v. Commissioners, 2 Hum., 428 , officers of the State, or in any other case of the kind, where such commissioners have been so appointed by act of the Legislature. The idea that a funding board, constituted of three men, is an officer of the State, in the language of the act of 1873, is inconceivable.- It ■is not an officer of the State, and cannot be.
The board is simply three parties acting as such, and claimiug to be authorized to fund the past due indebtedness of the State, and the right to do so, by authority of an enactment of the Legislature. This is their letter of authority, and under this they justify, and claim the right to do what they propose to do. The question is, whether what is authorized to be done, is a valid, legally authorized act, or is it in violation of the constitution, and a nullity. If the latter’, the board has no authority to issue these bonds, and may be restrained from doing so, by any party liable to be injuriously affected by their act. A citizen, a taxpayer, is certainly' so liable, at any rate has as direct interest in the question as any other party, *154 as the effect of what is done is prima facie, and it may be certainly, to fix a charge upon his property for the period of ninety-nine years. Where such a burden is proposed to be fixed on all the people of the State, under such circumstances, surely no court of equity could hesitate, if the act is done in violation of the constitution, to give preventive relief; quia timet, and forbid it being done.
It is certain, on the face of the bill the State is not a party. I think it equally certain ’ that no officer of the State as such is a party — only the funding board. It claims to act under the authority of what purports to be an act of the Legislature. If that act is valid, then the authority is complete — if not, there is no authority for the action of the board, and they cannot represent the State, even if the board was an officer of the State. It is correctly said by the Supreme Court of the United States, in the case of Board of Liquidation v. McComb, 11 Otto, 541 : “If an officer plead the authority of an unconstitutional law for the non-performance or violation of his duty, it will not prevent the compulsory process of mandamus. An unconstitutional law will be treated as null and void.” See also, 9 Wall., 859 ; 16 Wall., 220 . This principle certainly applies with full force to such a board as the one now before us.
To say that a simple enactment of the Legislature, is to be conclusive evidence of authority, though it be unconstitutional and void, and that no court could question it, is to make a valid and void enactment of equal force, and to authorize arbitrary power on the *155 part of the Legislature, with no check upon that body whatever.
It is no intrusion by the court- upon the province- or sphere of the Legislature. It is their duty and right to enact; but ours to judge whether the act is valid, or beyond the powers conferred on that body,, whenever that is fairly presented for our adjudication. The fact, that the Governor, nor any other party, as the result of holding this enactment invalid, (if it should so be found), would not and could not legally proceed to do what they might -otherwise do, is nothing more than results in any case where a law is declared unconstitutional. It is then by the proper authority adjudged to be no law, and consequently no authority for any action by any one under it.
We had a case lately before us at Knoxville, where the validity of th'e law authorizing assessment and valuation of the property of the railroads of the State-was in issue. The Governor by the statute appointed the assessors. This had been done for several years, but after this period, the question came before us, and the law was held unconstitutional and void. ■ No one certainly ever thought that this was an invasion of' the right of the Governor to appoint the board of' assessors, nor of the province of the Legislature, when the law was held ■ unconstitutional. The Governor, however, will appoint no more railroad assessors, simply because it has been settled by the proper authority that the acts they were to perform are in violation of" the constitution, and the Legislature could confer no authority to do an act in violation of the constitution,. *156 nor the Governor be bound, or have the right, to execute an unconstitutional enactment, when so declared by this court. I have no doubt of the correctness of the conclusion reached on this question.
I but add here, that the contention, that this bill •cannot be sustained because the State should be a party, ■and is not, I do not think well taken, as it goes on the proposition that in every case where a party seeks to act by virtue of an enactment of the Legislature, the State must be a party before the validity of the law can be adjudicated. I take it, this proposition would not be seriously insisted on. I need not ■discuss it.
The question of whether these parties as taxpayers •and citizens of the State, can file a bill to restrain the issue of these bonds, if issued in violation of the •constitution, I shall dispose of shortly. • I cannot doubt the right to bring such suit, under settled principles in this State.
The pineiple on which the jurisdiction of the court of chancery rests in a case like this, is stated by Judge Turley in the case of Bradley v. Commissioners, etc., 2 Hum., 432 -3, so clearly that we need but use his language to find all that may be rendered on this question. After referring to the incompleteness ■of legal remedies, he says: “ It is this inability of courts of law to operate prospectively by prohibition, for the prevention of mischief, that has established upon clear and definite grounds that portion of chan•cery jurisdiction which rests on the doctrine of quia ■timet. It embraces a great variety of interests, which *157 we need not investigate here. ' It sufficeth for this, case to say, that it always applies where great and-irreparable mischief may be the consequence of illegal action, which the common law courts, from their mode of proceeding, cannot stay; such as we think this one to be. If the establishment of the county,” he adds, “ be unauthorized, the organization ought to be prohibited, and this no court but one of chancery can do.”
The bill in that case was filed by two citizens, against commissioners appointed by an act of the Legislature to lay off and organize a new county, and in pursuance of this authority they were proceeding to-perform the duty required of them. The bill, among other things, stood on the ground that the new county would not have the number of square miles required by the constitution. On this ground, as clearly made out by the proof, the court put its decision. The new county was to be made up of fractions taken from three other counties, one of which was the county of Hawkins, The bill was filed solely by two citizens of Hawkins to enjoin the organization of the county— the complainants residing in the portion of Hawkins that would go into the new county. The sole ground in the bill for its relief was that the act to he done and performed by the action of the commissioners, would be a violation of the constitution; and on this ground the court placed the jurisdiction, or right on. their -part to file the bill, saying: “It is submitted whether one or two private individuals can seek the aid of a court of chancery for this purpose. We think *158 that any person aggrieved by the proceeding may apply for the remedy.”
This is a strong case in another aspect of it. It is a legislative function undisputed, to lay off new counties. The commissioners were but the appointed • agents of the legislative department .for carrying out what the Legislature had appointed — had expressed as -its will. But that expression or act was in violation of the constitution; and this court, at that early day— forty years ago — unhesitatingly gave the remedy, in favor of the citizen whose right was only to be affected •to the extent of changing the county in which he would live, by the organization of a new one. It was not even sought to sustain the jurisdiction by pointing out, as has .since been done, how his burdens might be increased by new taxes for court-house and public buildings, and in other ways; but the jurisdiction of the court was established on the broad ground that the constitution was about to be violated, . and the citizen’s right would be thereby so much affected, as that he might ask a court of chancery to prevent it. The court said the act was in violation of the constitution, “ and, as a consequence, any attempt to organize the county contrary to its restrictions was a void exercise of power which can and must be stopped by the judicial department of the State. There is no other place to which an appeal can be made, and if courts cannot interfere, the constitution, if violated, is a dead letter.”
Since that case, the jurisdiction then established has ■been exercised unhesitatingly in all like cases — indeed *159 it has become one of the settled principles of our State jurisprudence; so embedded in it as not to be shaken; so consonant as I think with sound principle; so in accord with the genius and spirit of our institutions; giving such a guaranty for the security of the people from aggression or infringement of their constitution 'on the part of the Legislature, so long as their judi-ciary are- to be trusted, that I would sanctify it, and preserve it for all time. I may add, when the judiciary of the State cannot be trusted, or fails to restrain 'unconstitutional action on the part of the Legislature, our free institutions are fearfully imperilled. In this high place, above passions, indepéndent of the drifting waves of popular sentiment or prejudice, should be found the safeguard of our liberties. It has been so in the past. I trust it may always be so found in the future. No one should fear to submit the constitutionality of a law to the arbitrament of the only department which is or can be organized, with peculiar adaptations to perform this high duty. It was truly and wisely said by Judge Turley: “ There is no other place to which an appeal can be made, and if courts cannot interfere, the constitution is a dead letter.”
The opposite theory, and the one maintained in •argument, that the act of the Legislature is conclusive authority for the act of this board, would, if carried -out, make the Legislature independent of the constitution, with no check upon their action whatever. - Suppose an enactment should authorize the property of ■the citizen to be taken for the use of the State under *160 the right of eminent domain, with no provision for compensation, and appoint a board to take possession. Would any man hesitate to say a court of chancery would enjoin these commissioners or board from doing it? Would an act of the Legislature be held conclusive authority in such a case? Assuredly not. Why ? Because it would be in violation of the constitution. It is not seen that there could be any difference in principle, between that case and this, assuming the act to be unconstitutional.
We need but notice an argument pressed probably in another connection, but one that may well be met here. It is, that if the law is repealable, this is the remedy; and if unconstitutional, the act will be void— that is, the contract proposed to be made. The fact that a law is repealable is no remedy against its execution for the citizen, nor is repeal a remedy at all when applied to courts, for no man can enforce it; and we may add, the Legislature may repeal a constitu-. tional law, as well as an unconstitutional enactment. But this has no relation to what a court shall do when the act is called in question in that forum.
As to the ulterior remedy of the taxpayer, or the-State, after the contract is completed, we need not say how that is. It may not be effective, but that is not the question. No court in all the future can give the complete and adequate remedy now sought, by preventing the mischief, if it be a wrong; and the question whether it will be a wrong, is the very question on which the remedy rests. If there is a wrong, prevention is better than remedial relief — meets the whole *161 case at once; while as to the taxpayer, whose property is to be charged with the burden of meeting the liability to be created, he would have to meet it, if at all, subject at least to many embarrassments not now found, and by each for himself resisting the payment of the tax. This might be the source of infinite litigation, as we see the taxes at present are not assessed, so as to levy a special tax for the payment of this debt. We hardly see how he could meet the case on the ground suggested.. Be this as it may, I am sure the relief now sought is the proper remedy.
It was suggested in argument, that the taxpayer was not injured, because the old debt, which this Avas to fund, was the same in amount, and the interest at six per cent., while this was to bear but three. But the answer is, it is not whether he owes another valid debt, heavier than this, but whether the specific liability now proposed to be created is a valid one. Whether the taxpayer might not have misunderstood what is best for him, is not important. That is for him to say. But that he has the right to resist the wrong in the particular form attempted, if a wrong, regardless of its prudentials, is to me a proposition not admitting of doubt.
The only other matter I notice in this connection is, that the State can, and ought to bring the suit. I only answer, that may or may not be; but whether true or not, it cannot affect the right of the party who in fact has to pay the money — to furnish it, either voluntarily or have it exacted from him, before *162 the State can disburse it — to assert his own right and resist his own threatened wrong.
I now proceed to the main question on the merits of the bili. On this I premise, that the question is not whether the State of Tennessee may not fund her past due indebtedness — that is taken for granted; nor whether she may not provide the means for paying the bonds given. The real question is: Whether the precise bonds this funding board, the defendants, are proposing to issue, creating the precise liability, provided for in the act of April, 1881, in the form proposed, are authorized by the Constitution, or can be constitutionally and legally issued ? Can this proposed contract be made, with all its liabilities and incidénts? Shall ii be consummated, not another? Is it forbidden by the Constitution fairly construed, either expressly, or by fair and necessary implication?
To this grave question I now address myself. I shall endeavor to discuss it in view of its gravity and importance. I think proper to say, that I cannot fully sympathize with the . somewhat conventional tone usually adopted by courts in approaching the discussion of a question involving the constitutionality of •an act of the Legislature. It seems to be assumed that this department of the government treads on ground where, • for some reason, it must walk with bated breath and a sense of awe in the presence of the mighty power of a co-ordinate department, that does not accord with my view of the sense of perfect freedom with which a judge should perform his high functions. It has even been sometimes said that, if *163 .possible, Ave must reconcile the act Avith the Constitution, — that we must hesitate before pronouncing an act of the representatives of the sovereign power void. To all this I respectfully demur. In declaring a law unconstitutional, the courts as much represent the sovereign will of the people as the other department in • enacting a law. The duty to do so is one confided to them, and imposed in no uncertain terms, — fastened by the solemnities of an oath, and sanctified, in the United States, by all the traditions and practice of these tribunals. As the peculiarity, and grand distinguishing feature of our American constitutional system, — one that gives more of stability to constitutional freedoms and guaranties than all others; one so essential to the preservation, unimpaired, of the essential rights of a free people, — I hold it should assert itself in the true spirit of independence, and the high dignity Avliich the consciousness of discharging so responsible a trust should ever impart to him who does duty at the command of, and in obedience to, the embodied Avill of a free and high-spirited people, jealous of their liberties. The sacred trust reposéd, should inspire the judge with the deepest sense of responsibility, but no fear; and in this, the true spirit of a manhood born of the free institutions he is to sacredly guard, he should discharge this duty as he does every other, looking only to the right, and daring to do, without shrinking, all it may demand'. To assume that I, as a judge, must do this Avork under the feeling that I must not do it if I can avoid it — must let the enactment, contrary to the Constitution, stand, *164 if I can find any means by ■which it can be done,— to me seems antagonistic to the spirit indicated, and what I ought not to feel. The Legislature, in enacting a measure, do what is deemed their duty in their sphere. When that act comes in question before me as a judge, I am simply to do. mine. It is passed with a knowledge of the fact that courts are to decide on its validity. It comes to these courts with this inherent element fixed by the Constitution, and I cannot feel the slightest hesitancy in doing it. That duty is not to seek, or even desire to find, how not .to do it; but frankly, fearlessly and truly to do my duty, and thus meet the responsibilities of my high place. In this free spirit, yet with a most real sense of the grave responsibility upon me, I shall attempt. to discharge the duty of the hour.
The enactment before us comes in the form of a law, and must so be treated. Its contents must be fairly considered and weighed, its purpose- seen and understood; and if these are in violation of the supreme law of the land, then it is stripped of its form and becomes a nullity- — is void. It is my imperative duty so to declare, and if I so find, it shall he done. I can consider no consequences; care, as a judge, nothing for what may be said or thought by others. The party accretions and combinations, as I have said, if such there be, that have gathered around this question, are matters with which I have no concern. With the policy, or impolicy of the measure, I have nothing to do. The only question is, Does it accord with, or does it violate the Constitution I am here *165 to maintain inviolate? If it does, it must go down, and I must say so, though I might as a citizen have approved. To the test of the Constitution, fairly expounded in alL its grants and all its limitations, in view of all it contains bearing on the questions at issue, it must be brought; and if it bears it, well; if not, ill. To this all must bow, or a constitution is an idle form, a lifeless corpse, that had as well be buried out of sight, as an encumbrance and fetter on the free action of the legislative department.
In the discussion of this question, I am compelled to deal with the elemental principles that enter into and animate the Constitution, which embodies the powers conferred by the people on the law-making department of their government. The nature of the thing known as a constitution, must be somewhat considered, as well as the inherent limitations that, from that nature, of necessity belong to it, and are therefore of itself a part.
What is a constitution ? An apparently simple question, but really presenting a most complex idea. I would define it for my purpose at present, as the written charter, enacted and adopted by the people of a State, through a convention of representatives, or in any other way the people may choose to act, by which a government for them is ordained and established, and by which the people give organic and corporate form to that ideal thing, a State, for all time to come, or during the life of the State. , In it must be found the powers. of that government, and the distribution of those powers among the several departments and *166 agencies, to use them for the purposes therein prescribed, but for no other. When this is completed and assented to by the people — ratified, the organic life of the State begins, and is complete when all the functions assigned are in full and free operation within their respective spheres, as marked out in the Constitution-. To the life of a free State it is essentia! that no power from without' shall (except by its consent authoritatively given) hold any control, or exercise any domination whatever over the vital action, or over any vital function of the organism into which has gone the life, and which carries the will, of the^ people who ordained it. It must be in the fullest' sense a complete autonomy, acting from its own central impulses, doing its own will, and independent of' the will of all others. To the extent that this government is dominated in its vital functions by any other power or authority, is its freedom' impaired, its. vital power lessened. As complete domination is complete slavery, so partial domination, without consent,, is slavery to the' extent it may be claimed and exercised. This seems to me self-evident. No State or' individual is free where another dominates the will of' that State or individual.
It is obvious that the first and underlying thing, or that which is the first element entering into the idea of the existence of an organized State, is that of' life — the free exercise of its essential functions. The organic thing was not. ordained as a theory, nor simply to give expression to principles of right; but for action — that action to be the life of a free people.. *167 To its departments are assigned duties and functions. These are essential to the life of the State; the exercise of them is its life. Impeding their freedom, directing their movement, repressing or expressing the will of the State, by a power from without, is to make that other master the State to the extent it yields this power, — but a mechanism, moved or restrained by a power from without, dominated by another will, and not the free, self-poised thing, acting solely from its own inherent motive power, given out on the motions of its own unfettered spirit. It cannot be conceived that authority could be conferred by a free people in the organization of such a State, or that it would give power alone to any department of that government ordained for freedom, to make it subject to the will of any other power on earth, in regard to the movement of any of its vital functions, for this would be to give the power to destroy that which was ordained to live; to plant the seeds of death in the bosom of that which is established for life, and only life, — which life consists only in free action within a prescribed sphere. Whenever such a power is attempted to be exercised by any department, it comes stamped with a contradiction on its face. Nothing shows it valid, except a plain and unmistakably written grant by the people in their supreme law; and then all must say, it would be an incongruity, a monstrosity, that could only excite astonish.ment and wonder. The power to impair or weaken, dominate or direct the action of a fre'e government, is a contradiction in terms. The expression of the first *168 idea destroys the meaning of the other. Domination and freedom are essential contradictions. The two things cannot co-exist. The extent of the exercise of the one, marks with perfect accuracy the amount of the loss of the other.
Assuming these premises, I now lay down a few general principles of construction to guide in ascertaining the meaning, in fixing and ascertaining what are the powers conferred, and what withheld, in the instrument which I am to construe and apply. I think them axiomatic in our constitutional jurisprudence, and entitled to be so considered, because they are based in necessary truth. The opposite of them must be a contradiction in the nature of things.'
I use and adopt, as has often been done by this court, the language of Judge Denio, in the case of People v. Draper, 15 N. Y., 543 , as appropriate on this question. He says: “In inquiring whether a given statute is unconstitutional, it is for those who question its validity to .show that it is forbidden. I do not mean that the power must be expressly inhibited, for there are but few positive restraints on the legislative power contained in that instrument. But the affirmative provisions of the Constitution are far more fruitful of restraints upon the Legislature. Every positive direction contains an implication against anything contrary to it, or which would frustrate or disappoint the purpose of that provision. The frame of the government; the grant of legislative power itself; the organization of the executive authority; the erection of the principal courts ■ of justice, create implied *169 limitations upon the law-making power as strong as though a negative was expressed in each instance.”
These broad general principles are necessarily true, as will be seen, and rest on the principle that an affirmative prescription involves a prohibition that its opposite shall be at the same time, because the existence of the one of necessity excludes its opposite. The principle has been well stated by Judge Catron, in the case of Norment v. Smith, 5 Yer., 272 : “Whenever a State constitution prescribes a particular manner in which power shall be executed, it prohibits any other mode of executing such power. On that particular subject the authority is exhausted by the constitutional provision, and an attempt to render it nugatory by law, would be an attempt at repeal.”
Whatever not authorized by the State Constitution, interferes with or limits the free exercise of the powers conferred on the Legislature, is contrary to and in violation of that power. It is a check or burden imposed upon its free action. Whatever is in contravention of the frame of government, to use the word of Judge Denio, is forbidden; or, to. state the principle more succinctly, whatever would defeat, impede, hamper, control, impair or weaken the free, untrammeled exercise of powers conferred, or the discharge of the duties imposed on the Legislature, must of necessity be in violation of the Constitution of the State and forbidden to be done. Whatever tends to interfere with the arrangements of the Constitution, and hinder those arrangements from being carried out with perfect freedom as required, cannot be permitted. *170 No power exists in the legislative department to give-any other ■ power control over the agencies organized to carry out those arrangements, except that power so. to act on the part of the Legislature is expressly, or by necessary implication, shown to exist and be conferred in the Constitution. All presumptions are against such power, in the nature of things, till the contrary is shown. To do so, is to abnegate their own functions, and transfer the trust reposed in them to that extent to another. If that other be a different government, to that extent it is slavery.
As a matter of course, I recognize in all these general propositions the fact, that in the Federal government there are certain powers of domination and control over the States, and to that authority as possessed I yield a prompt and cheerful obedience. But this does not contravene the principles laid down, but is strictly in accord with them. The powers thus, exercised are granted powers from the States, or people thereof, therefore exercised by their consent. The government exercising them, to the extent it does so, within the terms of the grant, is the government of the State or its people, as much and as legitimately as is the State government itself. Its proper sway, therefore, is not tyranny, but only the performance of beneficial functions, designed for and calculated to promote the good of all.
I now propose to bring the enactment under consideration, in its salient features, to the test of these principles.
The question to be considered mainly, if not ex^ *171 clusively, so far as the face of the enactment is concerned, is what is known as the coupon feature, found in sec. 3: “That the coupons on said compromise bonds, on and after their maturity, shall be receivable for all taxes and debts due ’the State, except for taxes, for the support of the common 'schools and for the payment of the interest upon the common school fund, and said coupons shall show upon their face that they are so receivable.”
I remark, first, that this section contains a new feature on the bonds of this, or as far as we know,, any other State, except certain bonds issued a few years since by our sister State of Virginia. The old bonds, which they are to take up, have the traditional and well-known pledge of “the faith, honor and credit of the State, solemnly pledged,” for the prompt payment of the principal and interest therein promised to be paid. This bond, as directed, contains that solemn-pledge of these,' but in addition has the added terms of contract, that the coupons of the bonds, as they become due, are receivable for all taxes and debts due the State.
I may say here, that, under the old bond, the rights of parties were understood. The undertaking was to pay; . but the only security given was the-pledge of the faith, honor and credit of the State, solemnly plighted. I heartily accord with the sentiment, that this pledge, when authoritatively made, should beheld as sacred as the life-blood of her sons — should ever be made good to the extent of its terms; that the honor, faith and credit thus plighted cannot be *172 forfeited or tampered with without dishonor, and to do so would be a stain on her fair escutcheon.
But this pledge is given, to be redeemed by the collection and disbursement of her revenues, the same ■to be levied by the free- action of her Legislature, -charged with still higher and precedent duties, to preserve and keep free from all contingency of impairment or hindrance the vital functions of the State. It was to be met by the action of the Legislatures as they might assemble, free to look to the exigencies of the • State, with no compulsory power over it, — only subordinated to the Constitution of the State. Revenue to be assessed and collected by the free action of the Legislature, from time to time, as it might direct, in view of the pledge given, it is true, but of necessity not excluding from consideration on the part of that body the condition and exigencies incident to the life of a State were to be the sources of payment. This was all well understood, and entered into and made elements in the contract, as plainly as .if it had been written in words on its face. Certain it is, there entered into this contract no element of •coercion — no power to legally enforce or oblige the ■State to comply with her promise and make good her plighted faith.
In the contract proposed to be made under this act, the same pledge is given, the same honor, faith and credit are plighted, and so far the contracts are the same. But, in addition,' there is proposed in the new contract a new element, stipulations for an additional security for the performance of what is promised — a *173 security deemed so valuable, that the holders of the bonds agree to renew them, running for ninety-nine years, and receive for all that périod only three per cent, per annum interest, the old bonds bearing six. The bond is on the same State, with the same resources, as the old bond. I ' therefore assume, the liberal extension of time, a credit given for ninety-nine years, and a loss of half the rate of interest for that period, is deemed but a fair consideration for the additional security obtained.
Be this as it may, we find the contract proposed in the enactment, and the question is whether the-legislative department of the State had the power to authorize the making such contract.
To test this, I first look at the precise effect of what has been done. 'What is the nature of this new agreement? Does it in this form assume the complete essentials of a legal contract made between individuals? In .the old contract, it had only the-•elements that enter into an agreement and pledge of a State. No legal obligement attached to it. It had no principle of enforceability in it; no lien on her resources; and no coercive power over these revenues attached to it, or inhered in it. Is this element found in the new one now proposed ? If so, what, is it, and what is the effect of this element? Had the-Legislature the power, under the Constitution, to give, grant or confer on any body such power, in the "form here given, and to be enforced by the means by which this can be enforced ? These are vital questions, as I think, on which the solution of the issue now un *174 •der consideration to a lárge extent, if not entirely, depends.
First, is the element of coercion, of enforceability, in the contract ? It certainly is so intended, and would be so understood by the holder of the new ■bond. Is it a fact,' as a matter of law - however? That this is true, cannot be doubted if once the contract is executed and the bonds issued, and the power conceded to make the contract. The creditor holding the coupons, whenever they are due, can enforce their collection. He has given to him, then, the power to ■ compel, by his own act, the payment of his debt, and an appropriation of the revenues of the State to this end. It is so nominated on the face of the bond, and so written on the coupon that evidences the indebtedness so far as the interest is concerned, and that runs for ninety and nine years, — the life of three generations. This cannot be doubted as being what the contract will contain, and what it means. It is not questioned, we understand, in the arguments of learned counsel. In fact, we believe, is justified frankly, as proper and right. It is said in Burroughs on Public Securities, 594, in giving the effect of such stipulations: “Such .provisions give an increased Avalué both to the bonds themselves and to the coupons. It is an assurance •to the holder that whatever may be the condition of the treasury, he has a mode of enforcing the payment ■ of interest which other creditors do not possess. So long as the municipality or the State' finds it necessary to levy and collect taxes, so long will there be • a demand for the coupons. It is, in substance, a *175 first mortgage upon the revenues of the municipality or the State. The duty of the tax officers is merely ministerial, and can always be enforced by the courts, so that these holders of coupons may stand at the door of the treasury and receive the first fruits of the public revenues. Whatever may be the necessities of the State for the use of funds in conducting the government, they are all to be postponed until the public creditor with the first mortgage is paid.”
This is a strong statement, but is substantially true. The contract is certainly in the nature of a mortgage, for it gives a right to appropriate the revenues of the State by the holder whenever his debt becomes payable. The right of the mortgagee is to do the samé, ■either by entry on condition broken at common law, or by strict foreclosure in a court of equity under the old rule, or, under our practice, by a sale under ■a decree of a court of chancery. In this ease, however, the party has secured to him by the contract the right to appropriate the revenues of the State to his payment by his own act. He has but to tender his coupons to the tax collector, and he is by the law bound to receive them, and thus his debt is paid. In this aspect, it is more analagous to our deed of trust, made to the creditor himself, to secure the payment of his debt when due, with power of immediate sale on default, and appropriation of the proceeds to its satisfaction. Should the tax collector refuse to receive it, then a legal proceeding to enforce the right would be his remedy. If the State said her tax collector •should not be sued in any way, and repealed our act *176 of 1873 authorizing suit after tender, giving no remedy at all, the case could be taken to the Supreme Court of the United States, if the State court decided against him, and there it would no doubt be held to impair the obligation of the contract, and the courts of our State be compelled by mandate of that court to enter the proper judgment, as held by that court and so the . right would be enforced, and that by ■ a foreign jurisdiction, if necessary. The supreme court having jurisdiction over the question, and revisory power over the State courts, in such a case, the State-courts would, as in duty bound, perhaps follow the Federal decisions, and administer the remedy. I need not, however, point out how the right could be enforced. It suffices, the contract is that the party-may enforce the payment for himself, and so he has, by its terms, his remedy in his own hands. Through the State courts, under the act of 1873, it may not be a very effective one practically, and such I think is the case; but the contract is the question now, and not the efficiency with which it may be enforced. If the right to do so in some form is in the bond, then the question of the power to make such a contract, is the test, and not the efficiency or inefficiency of the remedy for its enforcement. As to remedies through the Federal courts, T need not stop to discuss them here. They are ample, and. would give efficiency to the right of the holder of the coupon, so far as legal or judicial action is concerned. I take it this is not denied by learned counsel. We need but point to the Bank of Tennessee cases and others *177 of that class to show how that power may be efficiently 'brought to bear to compel the performance of this contract, if it once pass into the stage of completion. See Furman v. Nichol, 8 Wall., 44 ; Keith v. Clark, 97 U. S., 454 . I stop here to say, that the question of the liability of the State in the mat-' ter of the issues of the Bank of Tennessee, as an executed contract, has gone into judgment in the Supreme Court of the United States; and if it had not already done so, that court, holding it a contract, would certainly have enforced it whenever brought into question. The fact that this court might hold the contract unconstitutional subsequent to completion of the contract, would not control that court. See State Bank of Ohio v. Knoop, 16 How., top p., Curtis ed., 191 ; Talcott v. Township of Pine Grove, U. S. 6th Circuit, 1 Bond, 121 et seq., where the cases are all collected. See, also, the doctrine, as now held, same case, in Supreme Court of United States, affirming decree of the circuit court, 19 Wall., 666 . I quote .the syllabus of the opinion of that court, showing how far the court goes to enforce such obligations, even when issued ia violation of the Constitution of the State and held void by its own supreme court. • It is:
“The decisions of the highest courts of the State to the contrary will not be respected by this court when such decisions are not satisfactory to the minds of the judges here, and when the matter in . question is bonds issued in negotiable form by a township of that State, and now in the hands of a citizen of another State or a foreigner, bona fide for value paid. *178 Questions relating to bonds issued in a negotiable form, under such an act, involve questions relating to commercial securities; and whether, under the Constitution of the State suoh securities are valid or void, belongs to the domain of general jurisprudence.”
See, also, 16 Wall., 667 -8. I need not comment. The principle is well known and settled. That court would as certainly enforce the coupon feature, and protect it from impairment by repeal, suspension or modification by the Legislature or any other power of the State, as that the sun rises and sets. In fact no one, I take it, questions this, least of all the holders of the bonds. It suffices to say, that these decisions and the well known and settled rules established in the Supreme Court of the United States, together with the experience of the State on the question in the cases of the Bank of Tennessee, do not' invite this court to go a step further than safe and assured constitutional exposition shall require, in affirming a power in the Legislature to make like contracts. We should at least tread cautiously on such ground.
But to the argument. That the Legislature has not the power to abnegate any of its essential functions, or to confer on any one, or any body, authority or power of compulsory control, either directly or indirectly, over its free action in their performance, would seem to be self-evident. To make the laws that shall govern a free people, that body itself must be free to adopt all such measures as the varying •exigencies and wants of her people may demand. The true principle cannot be better stated, perhaps, than *179 iii the language of Mr. Greenleaf, cited by Judge Cooley in his Const. Limitations, 344, note 2. He says: “An important distinction should be observed between those powers of government which are essential attributes of sovereignty, indispensable to be always preserved in full vigor, such as the power to create revenues for the public purposes, to provide for the common defense, to provide safe and convenient ways for the public necessity and convenience, and to take private property for public uses, and the like, and those powers not thus essential, such as the power to alienate the lands and other property of the State, and to make contracts of service, and of purchase and sale, or the like. Powers of the former class are essential to the constitution of society, as without them no political community can well exist; and necessity requires that they should continue unimpaired. They ;-are entrusted to the Legislature to be exercised, not to be bartered away; and each Legislature should assemble with the same measure of sovereign power which was held by its predecessors. Any act of the Legislature disabling itself from the future exercise of pow■ers entrusted to it for the public good must be void, being in effect a covenant to desert its paramount duty to the whole people.”
These are words of weight and wisdom, and the principles stated embody the necessary limitations inherent in' the Constitution of a free State.
That, the coupon contract gives the holder power over •the revenues of the State, is not questioned; power to -appropriate them at his option to the payment of his *180 debt, whether she will or not, at any future • day. This is the terms of his contract. That option . is conferred by the act in plain terms. But it is said it can never come into play except the State make default; that this cannot be presumed, and therefore it is harmless. That is, however, but to state a fact, that, put in simple language, is, that the party cannot enforce his debt till it becomes due, and if it is paid he will • have no debt to enforce, and there the matter would end. But the real question is, Has he the power, by contract, to enforce his claim on the revenues of the State, by appropriating them to his payment in the manner prescribed, whenever the contingency may occur on- which that right arises? — not when it has not arisen.
What, then, in this aspect of the question is the actual effect of what is proposed? Hoes it fix a contract liability, in the nature of a first mortgage, on all the revenues of the State; give control over its vital functions; compel in any way the action of its Legislature; impair the freedom of action of that body, and make it subordinate to any extent to the will of another? If so, does such a power exist in the Legislature, or can it be conferred on another ?
That this contract gives a compulsory power over all Legislatures for ninety-nine years, seems to me beyond question; not directly applied it is true, but certain, effective and secure. The creditor has his own option to enforce it, and has the power of the Federal courts to give imperative efficiency to his will. The debt may be assumed to be twenty-seven mill *181 ions; the sum necessary to meet the. coupons annually, $810,000. When the future Legislatures of the State assemble for the next ninety years, that body is in the condition of the mortgagor who has given a mortgage upon the crop he has raised that year. His wife and children and himself need clothing and all necessaries of life. They must be fed or die. He must sell that crop for enough to pay that debt and have a surplus for these demands that touch on life •itself, or they must suffer or perish. That debt, however, stands first, and the iron chain of a contract, enforceable by all the power of the State through her courts, is linked to it, and fastens it on the proceeds of his labor. Does he act with the freedom of an unfettered man in the disposition of the proceeds of that year’s labor? Is there not a power above and over him that holds him in its grasp, that compels him first to work for it, and then compels the appropriation of the proceeds of that labor? But the Legislature of the State is not in his precise condition. It has duties confided to it — imperative trusts, which it has no 'power to bargain, sell, assign or transfer. These are fixed in the Constitution of the State, which it has no power to violate. Its action beyond the sphere marked out, is a nullity and binds no one. It cannot abnegate its powers, or transfer them to another. Its duties are first to provide for the wants of the State. Government is a necessity to the life of the State. Officers to perform those functions an essential element of the life of the organism. It manifests its life by action, or lives through these func *182 tionaries, and without them the constitution of government is a thing of no more vital power than is-one of the many constitutions forged so rapidly in the days of the French revolution by her fruitful statesmen, as it lies in the archives of France or stands on the printed page of history. To live the life designed by the State is the underlying and paramount purpose of the establishment of the government at all. The legislative department has no power conferred . to impair, weaken or destroy that life. For it, it must provide, and provide first, because the free-life of the State is the first and highest duty imposed on it. This must of necessity be preferred to all other claims. No debt or contract can ever rise above this. This is necessarily so, for the debt, if paid, must be paid by and through the action of the State. That action can only be by her officers. The Legislature must levy the taxes, and these be collected by her officers, the collection enforced by her courts, and, then disbursed by her appointed disbursing agencies. The Governor, as her executive, is a necessary part of her machinery for all her functions, his duty being to see that her laws are faithfully executed. The existence of all this machinery in full vigor and efficiency is a necessary and pre-existent conception, involved in the very idea of paying at all, or performing any contract or duty. Therefore the Legislature,, as one department of the government, by necessary-implication, is forbidden to grant any power or control by any one over the life of the State through these functionaries; but above all, over the Legisla *183 ture itself. That is • the department to which is confided the trust of providing for the life of all the-others. In performing that duty, it is the guardian of the life of the State and the representative of its freedom. It can never trammel, by contract, its-power to perform that trust, nor fasten a chain by contract, rightfully, on itself, that shall interfere with-the perfect freedom of its constitutional action. It must be left to perform all its work as free from control from without as should ever be the free spirit of her own sons, bound only by the Constitution of the State and of the United States, these being but- the embodiments of her own free will. If this contract is permitted to be executed, it will be a legal chain that cannot be broken, and a force for . coercion on her Legislature, not directly applied to that body, but equally as effective, that will compel its action and give, that action its direction. This control the Legislature is forbidden to give, by the principles I have-laid down, and the effort to give it is beyond the power of that body.
Let us see how this control is operative. In the-future, when the Legislature meets, and looks over the estimates of expenditure for the next two years, which it is its duty to provide, and . appropriate specifically to each item the amount required, which cannot otherwise be paid, there will always be an item of interest on these coupons, which will stand on ground higher than all the others. To meet the others is, in the case of the official salaries, and of their own, with other like items, an imperative duty, involving, as we have shown, *184 the life of the State. But this claim by contract is now before and above all these. It stands backed by a power, silent and with a harmless appearance, embodied in a few simple words, but imperative as fate, with a word of command that compels its voice to be heard and obeyed. That item must first be provided for. Why ? If it is. not, when it falls due, the creditor can compel its payment through the tax collectors. All the revenue that may be levied, or collected, till this is paid, may be stopped, and only coupons come into -the treasury. They are to be cancelled; and if this were not so, they would not pay salaries, nor support the life" of the State.
Let us look at this for a moment. Suppose the Legislature should propose to levy a special tax for official salaries of the State officers, in the form of so much on the hundred dollars of taxable property, as is now done by the act of 1873, sec. 38, for the support of common schools; and should then appropriate this to the payment of these salaries in the appropriation bill; under this contract, the holder of a due coupon, or the holders might tender the coupons in payment of the whole tax, and thus absorb it. In fact the salaries of all the officers of the State, and ■of the Legislature itself, could be more than absorbed by the amount of this interest. And so, if all the legitimate and actual ascertained expenses of the State were itemized, and provided for by a special tax, as might be done, this debt could be interposed, and by the terms of the contract enforced, over the means provided for these purposes. It is a lien preferred, *185 and has precedence over them. The creditor could, if he chose, intercept these revenues, like a process of .garnishment, and of his own will say, “ the salaries and expenses of the State are now subject to my direction. I will adjudge these shall- ’ be used to pay my debt, and so appropriate them. The necessary expenses of the State must defer to my claim.” So it is nominated in the bond, and there is no’ evasion, when his right accrues. This demonstrates, that this is power ever the very life of the State, and that it is an effective one; and to preserve that life, the Legislature will be compelled to meet his. demand first.
The case I have put, however, only brings out the operation of this power on these special taxes, if laid in that form. That it is certainly accurate, is shown by an illustration at hand. Suppose there had been no exception in the enactment, as found in the third -section, of “taxes levied for the support of the common schools,” would not that tax be subject to this •contract, and might it not all have been paid, under this act, in coupons — in other words, appropriated by the creditor to his debt, though levied for the specific purpose of the suport of the schools? If this be so, it inevitably follows, that any tax levied for any purpose, not excepted, is subject to the charge of this mortgage.
That this power, if exercised in the specific way pointed out, gives the creditor power over the life of the State, is too clear for question. But the principle is precisely the same, when no such special tax is levied. The poAver is over all the taxes and debts *186 due the State, with the exceptions in sec. 3; and what is over the whole, is necessarily a power over the parts. So that the real question is, whether the Legislature-can, in any contingency, give such power of preference to a creditor over the salaries of officers — her necessary expenses to pay which is essential to her existence — in a word, over all her revenues, and make these subordinate to his claim by contract, to be enforced through his own will, or through the agency of the Fedei’al courts — -or in fact any other. But this hereafter.
The point now is to show that it is compulsory power over the action of the Legislature. In view of the rights of the creditor under this contract to enforce it in the way we have stated, the compulsion is on the Legislature to levy a tax, and realize it so as to have it in hand on the 1st day of January and July of each year. The penalty is, that the bond will be forfeited, and the mortgage enforced, and the normal life of the State be in the hands of the creditor. All her sources of revenue are mortgaged to him. She can only prevent its enforcement, and the revenues necessary for her existence, from being appropriated by him, by responding to his demands promptly and certainly. To this she is compelled. If she fails she perishes, or her life is choked to the extent of the failure. Is such a Legislature the free, unfettered representative, and cun it give voice to the-will of a free people ? Does it meet with the same unfettered power to do its own will,' as Legislatures before have met? It is said, it is the duty of the *187 State to meet her debt promptly; conceded; but is-that duty higher than to live? Is it above the duty to provide for the necessary expenses of the State?' If not, then a contract that puts a claim above them must be void.' Has the Legislature the power to give a preference to this duty, over that of the higher and vital duty of paying the salaries of her officers?' I unhesitatingly affirm, no — and cannot doubt the correctness of the conclusion.
But again. These essential duties are left to the-free action of the Legislature by the constitution. They are more imperative by far than the duty of paying the creditor his interest. Why should the one-be left free by the constitution, and by contract the other made compulsory? Yes, compulsory, by a power over the State’s vitals. Free it was intended she should be in her action as to her own government and pedple, and that freedom cannot be mortgaged as a security for the bond of her creditor. Can it be. bargained and bartered in the market by the Legislature, like a worn-out garment? If so, instead of being the proud representatives of freemen, it is but fit to stand for-slaves, and obey the behests of a master. This is not what the constitution designs, and can never be allowed.
If the Legislature can by contract give creditors-the power to compel the levy of eight hundred thousand dollars per annum for their benefit, why may it not by the same means contract, that they shall compel the levy of two millions, or ten? Concede the poioer, and who can -mark the lim.it of its exercise, or *188 ■say thus far shalt thou go and no farther? No court can fix the boundary line where the power ceases to exist; and so, the principle conceded, it involves the right to give creditors the power to compel the levy of all the taxes that could be levied, and so give them the control over the entire taxing power of the ■State; and thus the full power, which the Legislature itself has over this vital governmental and legislative function, may be the subject of contract. This is to bargain away the government itself — a thing not marketable, or transferable, as I understand the principles ■of our constitution. Add to this, however, the proposition, that such a contract may be obtained by bribery and the corrupt use of money, and that the courts can give no help, as is the contention of the defendants — -that the only remedy is, not to vote for the faithless representative next time, or to expel him the Legislature; but the people must pay; the debt be valid; and then our constitutional system is but ■a farce — the rights of the people a myth.
But, why shall the Legislature not thus give control over its free action? The answer is, it holds all its powers as a trust, and the duties of that trust, the functions of the trustee charged with them, can never be sold, never trammelled, never subordinated to the will of another, by contract, without interfering with, and frustating the objects of the trust, and defeating or obstructing the arrangements of the constitution. ■Such a bargain is, therefore, by necessary implication, forbidden. When exercised under this compulsion, the Legislature would not. act as the law-making depart *189 ment of the State, from its own free, untrammelled' impulse, at its own will, as the representative of the will of the people, but would be under the control and compulsion of its creditor, whose will it is bound to obey, at the peril of the life of the State, and in this, would be Ms representative or agent, rather than the representative of the people who elected them. This can only be a gross departure from the terms of the trust under which it holds its power; its consummation, the enslavement of the State to the extent the power exercised.
We have two illustrations in our own Reports, that occur to me now, of the principle that the Legislature cannot transfer control over its own functions.
The case of Marr v. Enloe, 1 Yer., 453 , was an attempt by the Legislature to confer on the counties, through their county courts, the power' to levy a tax to meet the current expenses of the county. This was done before the constitution of 1834 had given the authority, as now exists, to authorize counties and incorporated towns to levy taxes for county and corporation purposes. This court, by Judge Catron, with more than ordinary vigor, repudiated such a right, and held the law unconstitutional and void, saying: “ Is taxing the people an act of legislation ? That the taxing power belongs to the Legislature, and that exclusively, and is,- if not the most important, at least of equal magnitude with any power entrusted by the constitution to the general assembly, is a truism never doubted or denied in Tennessee. Can this constitutional right, by an act of the general assembly, be *190 vested in a few individuals in each county, who are not dependent on the people, to tax without limit, and •even spend at pleasure, without responsibility and without control?” The justices were not then elective, but appointed by the Governor. After denouncing this tyranny, he holds the act a nullity.
In the case of The State v. Armstrong, 3 Sneed, 634 , this court, through Judge McKinney, in terms of vigorous reprobation, held an act void, that proposed to confer on the courts the power to grant charters of incorporation, though the powers of such corporation were all defined by the act, when created. The principle on which this was done is, that it was an attempt to confer the right to exercise legislative power on the county, which power was confided to that body alone.
These cases are not identical with the one now in hand, but the analogy is striking, and the principle the same. The transfer of the power to the county •court in one case, and in the other to the circuit and chancery courts, was but giving to these bodies the ■control of that power to the exter>t indicated. To this extent it was a complete control, and was a direct exercise of the power. But there is no difference in principle, whether I give a man the right to do an act that I am to do, or more circuitously, I confer on him the power to compel or control my own action. To tire extent that he exercises that control, and may use that power effectively, it is an exercise of the power which I was bound to exercise — only he uses me as his instrumentality. All action under the *191 ■will of another is enforced, and not free, and is but the act in fact of that, other, disguise it as we may.
So in this case, the Legislature has given the creditors power to compel the Legislatures for ninety-nine years to levy a tax sufficient to meet their debt, in preference to all other claims on the State — her official ■salaries and all, and this at the peril of enforcement of their mortgage, though it should paralyse all the ■departments of government; and under this compulsion it is agreed, and so written, all future Legislatures for this period shall act. Is not this practically the transfer of power and control over the Legislative department, and is not such control, in fact, the right to ■compel the mode of action, 'to the extent of the debt, of that body? And if so, what is thus compelled, is 'but the act of the party compelling, and not of the mere instrumentality, the Legislature. Therefore, in the exercise of the taxing power, so vital to the State, the Legislature to the extent of paying this debt, acts ■solely as the agent of these creditors, under their will, and do their bidding, and in this the people can have •no voice in the future, nor that body any freedom. It is dominated by the necessities of this contract, -and thus the legislative body of a free people reduced to the position of servants of a master, rather than a body of freemen.
The principle of the cases cited, forbids us to re-cognize such power. In fact it is evident that to the ■extent of the debt due these parties, they can compel the action of the Legislature, and in this is found the ■real security which inheres in this contract. As I *192 have shown, all the revenues of the State, with two special exceptions in sec. 3, arc subject to this mortgage. That is as clear as sunlight. The fact that the exceptions are put in the act, to secure interests deemed too sacred to be charged, is unmistakable evidence that the Legislature so understood what they were doing, and did what I have maintained they have done. I am compelled to hold, that body has no power to do this, unless I can agree that a creditor may be given rights that shall override the right of the people to have a free and unfettered Legislature. In other words, that the Legislature can destroy, or fetter, or burden, the very central force, that ' sends vitality through the wholé body politic. This I can never do.
That this power is in violation of ’ the express affirmation of the constitution, and in derogation of its clear and definite prescription, is demonstrable.. By the constitution it is provided, the Governor “ shall, at stated times, receive a compensation for his services”: Art. 3, sec. 7. By art. 2, see. 23, the compensation of the Legislature is fixed to be paid them for their services. By art. 6, sec. 7: “The Judges of the supreme or inferior courts shall at stated times receive a compensation for their services, to be ascertained by law.” In addition, numerous officers are provided for, and all must be paid out of the revenues of the State, in some form; for offices under our system, involve, duties and salaries, as necessary incidents to office. Payment of these is necessary to the continued action of the government. Such as I have *193 mentioned above are required to be paid at stated times, and, as a matter of course, paid in money. When these coupons mature, they have the preference ; they may be tendered, by the terms of the contract, and thus the taxes levied and received may come into the treasury, as coupons, till they are absorbed. They will not pay salaries, they are not money; with them no salaries can be paid, no expenses of the State can be met. Then here is a contract to do, and be compelled to do, what if done, as agreed, may deprive the State of the power to do what the constitution says shall be done; and under the settled Federal law as to contracts, it must stand as a contract, as unchangeable as the laws of the Medcs nnd Persians, and no power beneath the sun 'can change, alter or impair the force of its obligation, if once completed.- I cannot, as a Judge of a free State, assent to the proposition, that such a power is confided to the Legislature under our constitution. If this shall be permitted to pass into complete execution, and this court fail to lay its hand upon it. and restrain, then the act is irrevocable — the chain can never be broken. With these convictions, I should be recreant to the trust reposed in me, and an unfaithful guardian of the constitutional rights of a generous people who have honored me by my high place, if I should fail to say, - that for myself it shall not be done.
An argument, ingeniously framed and most skillfully put, has been made, to the effect that the coupons can never be tendered till after maturity, and this can never occur till after default on the part of the State *194 in payment of the interest, and this cannot be presumed will occur.
The answer is, this does but state a fact, that the right can never arise till the debt is due; but the question is riot how or when the right over the State’s revenues shall arise, or under what conditions may it be exercised, but can such a power be granted to arise at any time, under any conditions? The fact that it can only be prevented by a certain defined course of action, is an element that renders it obvious, and demonstrates its controlling power. The contract by its terms, it is necessarily conceded by this argument, gives the compulsory power over the Legislature which I have argued it does; and to the extent the power of compulsion is given, and to the whole extent, has the Legislature transferred into the hands of others than itself, the legislative power of the State conferred on them as a sacred, inalienable trust, to be exercised by that body under the limitations of the constitution, but subject to no other restaint, no other will, nor obedient to no person, whether individual or governmental, beneath the sun.
It has been said, that the State can only be subject to the influence of this contract by violating her plighted faith, and failure to keep her promise. Theoretically this. may be so, but practically I must know from, the nature of the thing provided, and from my knowledge of the operations of our system of laws and governmental machinery, that this is a mistake— if by default and breach of promise, is meant a willful violation of the terms of her contract, or willful *195 failure to provide the means of paying the interest to the day. It possibly may in most cases be done, but it is probable in many cases it cannot be done, withr out at least doing in fact, what the Legislature is compelled to do by this enactment, that is, by giving a preference to this claim over the support of the State itself.
After the first of January, there must be first gathered into the treasury and laid aside, the sum, or about the sum, necessary to meet the semi-annual isw-terest, say $405,000, and so again after the first of July. The taxes being levied in one aggregate mass for this 'and all other expenses, unless it be that no pressure of misfortune, no drouths, nor epidemics, with baleful breath and black wing — no monetary crises or revulsions, such as, vivid in the memory of all, occured in 1873 — no such long period of universal pressure as followed, is again to come — then such a failure will come, and no human foresight can avoid it, no skill evade it. And then what must be the result? The offi,-eers of the State must go unpaid, their services be performed on a credit or not at all; the functions of government be performed without the vital force of money to support them, and the other creditors of the State be postponed to the claims of the mortgagee under this mortgage. Either this must follow, or what is still more revolting, the State must, like the mortgagor we have referred to, when his crop has failed, his labor been unrewarded though faithfully given, stand, at the end of the year, before his cred.-itor, with bowed head and broken spirit, and ask or *196 beg for indulgence; nogotiate for dely, and pray that th.e mortgage be not enforced. It is at Ms option, however, whether he do so, or grant further time to breathe. The contract she has made then will be felt to be too ' heavy a burden to be borne by a free people, and in her madness, she may be driven in desperation to repudiate her debts, and break the toils, like a giant bound, that have been unwittingly placed by her representatives about her, to fetter her free limbs. I would not see her thus bound, because I believe that- free from bonds she yet may be trusted to keep her faith, and maintain her honor unsullied. If the opposite be the fact, then’ no legal cobwebs will hold her to her duty, and the bond is as worthless as the paper on which it is inscribed.
Our statute book, since 1873, if not before, abundantly sustain what I have said. Statute after statute stands on it since then suspending the enforced collection of the taxes, even for the support of the life of the State, and we all remember the issuance of warrants receivable for taxes some years since. . Some have had experience in receiving them for hard toil in her service. We cannot but assume that all this was not of choice, but the result of influences beyond the control and foresight of our Legislature. He who assumes that no such times will come again, must’assume that history never repeats herself, and in the blindness characteristic of hopeful youth, expect that sunshine, prosperity, and above all, stability and fixity, shall characterize all the future years — the ever shifting surging elements that make up our national life, *197 ■will cease to wreck fortunes or blast Ropes — the political sky be forever unclouded — the financial movements of our Republic be in the future conducted by more than human wisdom, uninfluenced by the madness of speculation — secured against all its reckless consequences. He who can believe this, may well look for the millennial day to dawn; for if he is right, the world’s redemption from evil certainly draweth nigh. But sober wisdom can indulge no such dreams, and must look for a prophecy of the future, in the records of the past; and this gives no uncertain utterance. Its lesson is one of warning, and assurance that the thing that hath been, will surely be again, and no wisdom or device of men will make the life of man or State, anything but one of mixed evil and good, of prosperity and adversity. When the one or the other, no one can say.
One other view of' this question may be given. The only assumption on which what is proposed can even plausibly be palliated is, that the charge in fact will not absorb all the available revenues of .the State •at any time, or may never practically reach the results •indicated.' How that is, I do not know. Nor is it •important to settle. The lien, the charge, the mortgage given, as I have shown, is fixed on all the revenues, save the specified exceptions. Like the case of a man mortgaging all his lands, including his homestead right, for a debt; it may be worth more than the debt at present, largely more, and may on sale leave a surplus. But it may not; and all experience ■shows the futility of human calculations to fix in ad- *198 vanee what may be the result. But by the mortgage all his property is charged with the debt, and thenceforward he holds only a qualified right in it — ■ an equity of redemption — the creditor the beneficial interest, and the legal title. Can a Legislature do this at all, either for a small o

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8297040. Public record. Not legal advice.