# Petition for Writ of Certiorari — Grant v. Mississippi > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0468%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1997 - **Citation:** 520 U.S. 1240 ## Text Supreme Court, U.S. am FILED ; ‘ } - 961513 MAR 17 197 No. 9ft cies OF THE CLERK In The Supreme Court of the United States October Term, 1996 * DR. CHARLES BARING TRAVERS GRANT, a citizen of Great Britain, et al, Petitioners, STATE OF MISSISSIPPI, et al, Respondents. ¢ Petition For A Writ Of Certiorari To The Supreme Court Of The State Of Mississippi ¢ PETITION FOR A WRIT OF CERTIORARI + Counsel of Record Paut M. NEVILLE Nevitte & WILSON 808-B North State Street Jackson, Mississippi 39202-2602 (601) 355-1918 Mississippi Bar No. 3823 Barry H. Powe. ALSTON, RUTHERFORD & VAN SLYKE Post Office Drawer 1523 Jackson, Mississippi 39215-1532 (601) 948-6882 Mississippi Bar No. 4461 March 14, 1997 COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 OR CALL COLLECT (402) 342-2831 QUESTIONS PRESENTED FOR REVIEW a Whether the State of Mississippi in refusing to pay either interest or principal on state bonds sold to individ- uals in England in the 1830s violated Article X of the Treaty of Amity, Commerce and Navigation Between the United States of America and Great Britain, November 19, 1794, 8 Stat. 116 (The Jay Treaty)? II. Whether the State of Mississippi in amending its state constitution in 1875 to preclude the payment of any claim on the state bonds while five years remained under the applicable statute of limitations to enforce payment of the bonds violated the due process clause of the Four- teenth Amendment to the United States Constitution? ii LIST OF ALL PARTIES A list of all parties to the proceeding is as follows: Petitioners who were the plaintiffs in the trial court and the appellants before the Supreme Court of Mississippi: DR. CHARLES BARING TRAVERS GRANT, DAVID J. BARRY, FREDERICK PAUL SEABROOK, DR. DONALD JOHN BURNS, MICHAEL ROBERT FRANCIS WILKINS, MR. AND MRS. V. JOHN BATTEN, ROBERT KENNETH PRATT, JOHN EDWARD MORRELL, FRANCIS PETER DUP?PA-MILLER, ANGUS MACDONALD, DR. DEREK NORMAN SEATON, BRIAN MICHAEL CARTWRIGHT, DAVID VICTOR CORONNO, ALEC FIELD ATKIN, DOR- JTHY FAHS BECK, JOE L. HOWELL, JR., DAVID M. BEACH, JAMES C. BLACK, STEPHEN D. PISINSKI, CYNTHIA E. PISINSKI, HENRY J. SOBEL, CATHERINE B. KELLY, DEANE D. KOCHER, II, KAREN A. WHITE, ROBERT J. BECHTOLDT, MARTIN AND RUTH BELL, PAUL PSEISSER, TIMOTHY T. WALRAVEN AND WIL- LIAM R. TUTEN, Iil Respondents who were defendants in the trial court and the appellees before the Mississippi Supreme Court: STATE OF MISSISSIPPI, STATE BOND COMMISSION, STATE BOND RETIREMENT COMMISSION; KIRK FOR- DICE, IN HIS OFFICIAL CAPACITIES AS GOVERNOR OF THE STATE OF MISSISSIPPI AND COMMISSIONER OF THE STATE BOND RETIREMENT COMMISSION AND OF THE STATE BOND COMMISSION; iii L*ST OF ALL PARTIES - Continued MIKE MOORE, IN HIS OFFICIAL, CAPACITIES AS ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI AND COMMISSIONER OF THE STATE BOND RE&TIRE- MENT COMMISSION AND OF THE STATE BOND COM- MISSION; MARSHALL BENNETT, IN HIS OFFICIAL CAPACITIES AS TREASURER OF THE STATE OF MIS- SISSIPPI AND COMMISSIONER OF THE STATE BOND RETIREMENT COMMISSION AND OF THE STATE BOND COMMISSION; AND EDWARD L. RANCK, IN HIS OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR OF THE DEPARTMENT OF FINANCE AND ADMINIS- TRATION FOR THE STATE OF MISSISSIPPI iv TABLE OF CONTENTS Page QUESTIONS PRESENTED FOR REVIEW ........... i Poy ee oe ke. 3 reper yr re area ye ii TAR SI CIT ih aks nb hoi ence cease ccnsiwas iv THROG GP AUT es seo vee pacers vernviess Vv CITATION OF OPINIONS BELOW................. 1 Fas eG EUs 65 aR E ON 6 eo 6H eae Ree 1 TREATY, CONSTITUTIONAL AND STATUTORY Fey TOE BON VUE de sk cca sy ee riae esata dees 1 SAPS OONTEUS GOR” CBU GPU eee cee ee es eadens venen 3 PROS: 6 Got hh Ca ee ew Esakesed serdar keine es 7 V TABLE OF AUTHORITIES Page CASES Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 Maes TA AA OUE 6 hos 4a EARS eye ae kA NeS MRC DeR 12 Brown v. United States, 12 U.S. 110:............05. 7, 8 Chapman v. Board of County Commissioners, 107 Sdichs PO ATED » bd Kegs KOS ebe eee hbERS Or been 11 CIG Contractors v. Miss. State Bldg. Com’n, 399 So. Le ROO Ge AOE 5 ka F605 cEtkS eke e ee 11 Gagnon v. Scarpelli, 411 U.S. 778 (1973).............. 12 Geofrey 0. Riggs, 133 US. 258 (1890). ........0cccccee: 9 Hauenstein v. Lynham, 100 U.S. 483 (1879) ............ 9 Karnuth v. United States, 79 U.S. 231 (1929)......... 7, 8 Milliken v. Mayer, 311 U.S. 457 (1940)................ 12 Sohn v. Waterson, 84 U.S. 596 (1873)................. 11 United States v. State of North Carolina, 136 U.S. 211 CRUE SAG aces deeb EN RU weGeurs pia belle buae ceca as 10 Weimer v. Amen, 870 F. 2d 1400 (8th Cir. 1989) (citing Daniels v. Williams, 474 U.S. 327 (1986)).... 12 STATUTES, CONSTITUTIONAL PROVISIONS AND TREATIES Act of April 19, 1873, Ch. 26, Laws of Mississippi BE 54 Ck Ka pw CHAO ae bh ORG ROT RE EEA ao 4,11 Article X of the Treaty of Amity, Commerce and Navigation Between the United States of Amer- ica and Great Britain, November 19, 1794, 8 Stat. S20 CEO TRY TOONS sis Sade a aes aoa 7 & Fourteenth Amendment to the Constitution of the LT. RS 6-05 3 Ra ee es as the 2D vi ‘ TABLE OF AUTHORITIES —- Continued Page OTHER AUTHORITIES Dennis, The Effect of War on Treaties, 23 PE La: Ne SE a o's 5 ci eca a ee eats hai eaked) 8 Hyde, Concerning the Interpretation of Treaties, 3 PAG Sn BO CRD ies The people of the State, by a large majority, declared their unwilling- ness to be taxed for the payment of the bonds, which in 8 Mississippi Legislature Senate Journal, January 18, 1837, p. 95. 9 Mississippi Legislature Senate Journal, February 12, , 1838, p- 312. 10 McGrane, p. 195. 11 Mississippi Legislature House Journal, 1841, p. 416. 12 Laws of Mississippi, ch. 127, sec. 6-7, 1842. 13 Laws of Mississippi, ch. 25, . , 1852. App. 37 effect, virtually repudiated the debt.!4 The Legislature, however, did not repudiate the debt at this time.15 They felt the payment of both bonds and interest constituted a legal and moral obligation of the state. By this time many investors were beginning to worry about their purchases of Planters’ Bank Bonds. One such investor, however, held on to the idea that one day the Mississippi bonds would be paid. His name was George Peabody. After several visits to England, Mr. Peabody, a Massachusetts banker and philanthropist, settled perma- nently in London in 1837. There he established under his own name a successful investment banking house which invested in the Planters’ Bank Bonds.’ On February 7, 1867, George Peabody donated $464,000.00 of Planters’ Bank Bonds to his Southern Education Fund. Former Chief Justice and Provisional Governor of Mississippi, Honorable William L. Sharkey, assured Mr. Peabody that the Planters Bank Bonds were a just debt of the State. The faith of the state of Mississippi had been pledged for the redemption and payment of said bonds.17 In February, 1871, a petition was received by the Mississippi Legislature on behalf of British, American, Dutch, Spanish, and other investors in Mississippi Union 4 “Mississippi State Bonds,” Hinds County Gazette, December 8, 1858, vol. 162, n.p. 1S Mississippi Legislature House Journal, 1852, p. 545-547. te “George Peabody”, The World Book Encyclopedia (Chicago: World Book - Childcraft International, Inc., 1978), vol. 15, p. 182. 7 Campbell v. Mississippi Union Bank, Howard’s Reports, vol. 6, p. 625-683. App. 38 Bank and Planters’ Bank Bonds from various investing companies and individual holders. The petitioners urged that the State now recognize as among its earliest and fundamental duties the enactment of a law to redeem the faith of Mississippi pledged upon these bonds, and free her forever from the bane of repudiation. The petition was ignored.!8 In March, 1871, the Trustees of the Peabody Southern Education Fund addressed a memorial dated February 16, 1871, to the Mississippi Legislature. This memorial appealed for the payment of the Planters’ Bank Bonds donated by George Peabody, recalling that the validity of these bonds had never been questioned, and that it was the cherished hope and confident belief of the founder to the last hour of his life that this long-deferred debt would soon be honored. By this time the bonds with accrued interest were worth $1,100,000.00.19 Mr. Peabody had wanted the income to be applied “for the promotion and encouragement of intellectual, moral, or industrial educa- tion among the young of the more destitute portions of the Southern States of our Union.”2° No answer was given to the Trustees. On February 12, 1875, Governor Adelbert Ames signed a bill proposing an amendment to the State’s 18 Chronology of the Repudiated Debts of the State of Mississippi Issued Before the Civil War (London: Council of Foreign Bondholders, No. 17, Moorgate, February 1932), p. 9. 19 Chronology of the Repudiated Debts of the State of Mississippi Issued Before the Civil War, p. 8-9. 20 Memorial of the Trustees of the Peabody Education Fund (1881), n.p. App. 39 Constitution to repudiate the Planters’ and Union bank bonds. At a general election held on November 2, 1875, the amendment, which read as follows, was adopted by the people: “Nor shall the State assume, redeem, secure, or pay any indebtedness claimed to be due by the State of Mississippi to any person, association, or corporation whatsoever claiming the same as owners, holders, or assignees of any bond or bonds known as the Union Bank bonds or the Planters’ Bank bonds.”2! The holders of Planters’ Bank Bonds persistently sought redress over the years. On February 21, 1881, the Trustees of the Peabody Southern Education Fund again requested payment of their Planters’ Bank Bonds. Their representative, Judge Thomas C. Manning, was informed by letter from Governor Stone, dated March 4, 1881, that the bonds were excluded from legislative consideration by the Constitutional amendment that had been adopted in 1875.22 For nearly a quarter of a century the Peabody Trust Fund had repeatedly appealed to the State to settle. Dur- ing that time Mississippi children were recipients of the Fund’s benefactions. Finally, in 1884, the trustees announced that, in justice to other States, they would halt 21 Laws of Mississippi, Amendments to the Constitution, Amendment 1, November 2, 1875. 22 Chronology of the Repudiated Debts of the State of Mississippi Issued Before the Civil War, p. 10-11. App. 40 the distribution of its philanthropy in Mississippi until such time as the state recognized its obligations. The Mississippi Constitutional Convention, on November 1, 1890, incorporated the repudiation amend- ment adopted by the 1875 Legislature and passed by the people into the new State Constitution as Section 258, Article 14. This amendment found its way almost word for word from the 1875 Legislature to the present Consti- tution of 1890. After forty-four years of assistance to Southern edu- cation, the Peabody Education Fund was dissolved in late 1913. On November 5, 1913, Governor Earl Brewer of Mississippi and Chancellor Andrew Kincannon of the University of Mississippi appeared together in person at the annual meeting of the Trustees in New York, and requested that the Peabody donation of Planters’ Bank Bonds be turned over in trust to the University of Missis- sippi. The Peabody Trustees agreed to transfer their Planters’ Bank Bonds to the University of Mississippi to hold in trust.24. On May 20, 1914, the Trustees of the Peabody Fund, after an interview with Governor Brewer and Chancellor Kincannon, delivered to the Treasurer of Mississippi half a million dollars or more in bonds of the Planters’ Bank issue to be held with the understanding 23 “The Federal Aspect of the Debts of the State of Mississippi Repudiated Before the Civil War.” Fifty-sixth Annual Report of the Council of Foreign Bondholders (London: Council House, No. 17, Moorgate, March 1930), p. 9. 24 Chronology of the Repudiated Debts of the State of Mississippi Issued Before the Civil War, p. 11. ‘nai te nina App. 41 that if they should ever be redeemed the money would be divided equally among the University of Mississippi, Mississippi A&M college, Industrial Institute and college at Columbus, and George Peabody College for Teachers at Nashville, Tennessee.?° The trust was accepted and the bonds are now held by the State Treasurer of Mississippi pending ultimate distribution of their proceeds.*° Bibliography Campbell v. Mississippi Union Bank, Howard’s Reports, vol. 6, 1867. Chronology of the Repudiated Debts of the State of Mississippi Issued Before the Civil War. London: Council of Foreign Bondholders, No. 17, Moorgate, February 1932. “The Federal Aspect of the Debts of the State of Missis- sippi Repudiated Before the Civil War.” Fifty-sixth Annual Report of the Council of Foreign Bondholders. London: Coun- cil House, No. 17, Moorgate, March 1930. “George Peabody.” The World Book Encyclopedia (Chi- cago: World Book-Childcraft International, Inc., vol. 15, 1978. “Historical Survey of the Debts of the State of Mississippi Repudiated Before the Civil War.” Fifty-fourth Annual Report of the Council of Foreign Bondholders. London: Coun- cil House, No. 17, Moorgate, May 1929. 25 “Record Facts and Comment on State’s Repudiated Bonds,” p. 9. 26 Chronology of the Repudiated Debts of the State of Mississippi Issued Before the Civil War, p. 12. App. 42 Laws of Mississippi (Jackson: Peter Isler, State Printer) 13th and 14th Sessions, 1830. Laws of Mississippi (Jackson: C.M. Price and G.R. Fall, State Printers), 1842. Laws of Mississippi (Jackson: Fall and Marshall, State Printers), 1852. Laws of Mississippi, Amendments to the Constitution, Amendment 1, 1875. McGrane, Reginald C. Foreign Bondholders and American State Debts. New York: The Macmillan Company, 1935. Memorial of the Trustees of the Peabody Education Fund. n.p., 1881. Mississippi Legislature House Journal (Jackson: C.M. Price, State Printer), 1836. Mississippi Legislature House Journal (Jackson: C.M. Price, State Printer), 1841. Mississippi Legislature House Journal (Jackson: C.M. Price, State Printer), 1852. Mississippi Legislature House Journal (Jackson: G.R. and J.S. Fall), 1837. Mississippi Legislature House Journal (Jackson: B.D. How- ard, State Printer), 1838. “Mississippi State Bonds.” Hinds County Gazette, Decem- ber 8, 1858, vol. 162. “Record Facts and Comment on State’s Repudiated Bonds.” The Planters’ Bank and Union Bank of Mississippi. n.p., March 20, 1931. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0468%3A1. Public record. Not legal advice.