Thomas v. Taylor

42 Miss. 651

• Court: Mississippi Supreme Court
• Decided: October 15, 1869
• Status: Published

Opinion

Peyton, J.,

delivered the opinion of the court.

The defendant in error filed his bill of complaint in the Chancery Court of Hinds county for the first district thereof, against the plaintiff in error, as sheriff and tax collector of said county, and B. II. Pitman, alleging that ho was the owner and possessor of fifty bales of cotton made in said county; that he had baled and prepared for market, and was about to ship the same; that there was then due and owing the sum of two dollars per bale, for tax on said fifty bales of cotton, by virtue of an act of the legislature of the State of Mississippi, entitled “ An Act levying a -special tax upon certain persons and property therein named,” approved November 16,1865.

The bill further alleges that the defendant in error tendered to the said B. II. Pitman, the regularly appointed and qualified deputy of the said Samuel Thomas, sheriff and collector, as aforesaid, in payment of the tax due and owing by him on said fifty bales of cotton, a one hundred dollar treasury note of the State of Mississippi, commonly called a cotton note, duly issued by virtue of an act of the legislature of said State, on the day of the date thereof, entitled “ An Act to be entitled An Act authorizing the issuance of treasury notes as advances upon cotton,” approved Dec. 19th, A. D. 1861.

The bill further charges that the said treasury note, so tendered by defendant in error as aforesaid, was and is, by virtue of the said act of the legislature authorizing the issuance of the same, receivable for all taxes then due, or that may thereafter become duo, to the State, or any county or municipal corporation, except the military tax, and that said act is in full force and virtue, and, by force thereof, the said note so tendered was and is receivable for all State taxes then due, or thereafter to become due, except the military tax.

The bill further states that the said Pitman, as deputy sheriff as aforesaid, refused to take the said treasury note in payment of the said taxes, as by law lie was bound to do, to the manifest injury, wrong, and injustice to the defendant in error.

The bill further charges that the said Act of the legislature, approved November 16, A.D. 1865, requiring the plaintiff in error, as collector of taxes, to collect said tax in the currency of the United States, on which the plaintiff in error relies to justify his refusal to receive said treasury note in payment of said tax, is, so far as the said act forbids the receipt of tbe said treasury note in payment of the said tax, unconstitutional and void, as impairing the obligation of the contract of said State to receive said treasury notes, issued under said statute, approved the 19th December, A. D. 1861, in payment of all taxes then due, or that might thereafter become due, to said State, except said military tax.

And the bill further states that the said Pitman, deputy as aforesaid of the plaintiff in error, sheriff and tax collector as aforesaid, having illegally and wrongfully refused to receive said treasury note tendered as aforesaid, has levied on a part of said cotton to pay and satisfy said tax, and will proceed to sell the same, unless restrained by the proper process of the court. And prays for the ordinary process, and also for a writ of injunction to restrain the plaintiff in error, and the said Pit-man, and each of theni, from selling said cotton for said tax, until the further order of the court, and that upon the final hearing the injunction may be made perpetual; and that the plaintiff in error be decreed to receive the said treasury note in full payment and satisfaction of the taxes due by the defendant in error on said fifty bales of cotton.

At the June Term of said court, 1866, the defendants in tbe court below appeared and demurred to the bill of complaint, for tbe want of equity on the face of the bill, which demurrer was overruled by the court, and, the defendants declining to answer further to the bill, the same was taken for confessed; and upon final hearing, the court perpetuated the injunction, and decreed that the plaintiff in error, as tax collector as aforesaid, receive the said treasury note in satisfaction of said tax, and receipt to the defendant in error in full for said tax.

From this decree the plaintiff in error brings the cause to this court by writ of error, and makes the following assignments of error:

1. The court below erred in oven-uling the demurrer of the defendants to the complainant’s bill. „

2. The court below erred in rendering final decree for complainant.

Much learning, research, ingenuity, and ability have been displayed by the counsel on each side, on the argument of this cause; and its importance, both with reference to the interesting legal questions and principles involved, and the vast pecuniary interest dependent upon the result, demand the most matured and deliberate consideration of this court. And, in order to a correct understanding of the principles involved in this case, we deem it not improper, on this occasion, to advert for a moment to the nature and character of our system of government. And, in discussing the purely legal questions involved, we adopt as our guide on this occasion the same rule which was laid down for the court in the case of the Louisville and Nashville Railroad v. Davidson, 1 Sneed, 637, where the court says: “ If the construction and administration of our laws, supreme or subordinate, were to be governed by the opinions of judges as to the genius or general principles of republicanism, democracy, or liberty, there would be no certainty in the law, no fixed rules of decision. These are proper guides for the legislature, where the Constitution is silent, but not for the courts. It is not for the judiciary or executive department to inquire whether the legislature has violated the genius of the government, or the general principles of liberty and the rights of man, or whether their acts are wise and expedient or not, but only whether it has transcended the limits prescribed for it in the Constitution. By these alone is the power of that body bounded. That is the touchstone by which all its acts are to be tried; there is no other. It would be a violation of first principles, as well as their oaths of office, for the courts to erect any other standard. There is no higher law than the Constitution known to our system of government.” So, on the present occasion, it is not for us to inquire whether the provisions of our Federal Constitution are wise or unwise, but what they are, and what is their true interpretation.

The Constitution of the United States is not merely a league of sovereign States, for their common defence against external and internal violence, but a supreme federal government, acting not only upon the sovereign members of the Union, but directly upon all its citizens in their individual and corporate capacities. It was established, as the Constitution expressly declares, by “ the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the dommon defence, promote the general welfare, and secure the blessings of liberty to them and their posterity.” This Constitution, and the laws made in pursuance thereof, and treaties made under the authority of the United States, are declared to be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State t'o the contrary notwithstanding. The avowed intention was to supersede the old confederation, and substitute in its place a new form of government. The sad experience of the inefficiency of the old confederation, which was a mere league of States, without any cohesive power or energy, forced the people of the States to surrender the league then existing, and to establish a national constitution of government, which has been the subject of different interpretations, according to political complexion of parties, with reference to the extent of the powers of the Federal and State governments; yet it is a historical fact, that, although many declarations of rights, many propositions, and many protestations of reserved powers are to bo found accompanying the ratifications of the Constitution in the various State conventions, sufficiently evincive of the extreme caution and jealousy of those bodies, and of the people at large, there is nowhere to be found the slightest allusion to the instrument as a compact of States in their sovereign capacity, and no reservation of any right, on the part of any State, to dissolve its connection, or to abrogate its assent, or to suspend the operations of the Constitution as to itself. On the contrary, the Convention of Virginia, which speaks most distinctly on this subject, and, as we think, most correctly, merely declares “ that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them (not by any one of the States), whenever the same shall be perverted to their injury or oppression.” Of the right of a majority of the whole people to change their Constitution at will, there can be no doubt. And when there is an accumulation of usurpations and abuses, rendering passive obedience and non-resistance a greater evil than resistance and revolution, the form of government may then be changed by successful revolution, an appeal from the cancelled obligations of the constitutional compact, to original rights and the law of self-preservation. This is the ultima ratio under all governments, whether consolidated, confederated, or, like ours, a compound of both; and it cannot be doubted that a single member of the Union, in the extremity supposed, but in that only, would have a right, as an extra and ultra constitutional right, to make the appeal.

The government of the Union, though limited in its powers, is supreme within its sphere of action. The international relations of these States with foreign states are exclusively maintained by it, whilst their municipal regulations and internal affairs are maintained and conducted by them. The external sovereignty, therefore, of the nation is exclusively vested in the Union, and the independence of the respective States, so far as the legitimate powers of the government of the United States extend, is merged in the sovereignty of the Federal Government.

The great question presented by this record is, whether the State of Mississippi and the rightful authority which now controls her people, are bound by the acts and engagements of the government, which was organized under the ordinance of secession in 1861, and finally overthrown by the military forces of the United States in 1865. In order to a proper solution of this question, the precise character of that government while it existed should be first ascertained.

■ At the time of the passage of the ordinance of secession, the State of Mississippi was one of the States of the Union, and her constitution and government constituted part of the machinery by which the government of the United States was carried on and maintained. The government then in existence assisted to form the Senate and House of Representatives of the United States, and in the election of the President of the United States. The laws of the United States were the supremo laws of the State of Mississippi; and though the government was separate from the governments of the other States, it was not, separate from that of the United States: there was an intimate connection between them, and a mutual dependence upon each other.

The government founded on the ordinance of secession was a government without any connection with or dependence on the government of the United States. It denied the authority of the Constitution and laws of the United States over the people of Mississippi, who were declared to be no longer a part of the people of the United States. This denial was accompanied by the adoption of a new constitution, in many respects like the old one, but fundamentally different in that feature of it which severed the connection of the government of Mississippi with that of the United States, and in the assertion of the absolute independence of the government of the former. The senators and representatives in the Congress, of the United States were withdrawn, and all the laws by which the people of Mississippi and the government thereof participated in the government of the United States were abolished.

The government thus set on foot proceeded, in conjunction with other State governments similarly erected and controlled, to form a confederation of states, by adopting a constitution and government for the people of the States so confederating, through the agency of these State governments. The obligations and connections thus formed and incurred were wholly incompatible with those which existed under the government of the United States, of which the new Confederacy declared themselves entirely independent. It thus appears very evident that the government of the State of Mississippi as one of the United States, and the government of the State of Mississippi as one of the Confederate States, were not identical, and could not in the nature of things be the same. And although the members of the legislature of 1861 may, as counsel for defendant in error has alleged, have been elected under the former, yet it is very clear that they formed the legislature of the latter. The constitution of the State of Mississippi as one of the Confederate States, and the constitution of the Confederate States, both require that the members of the legislature shall, before they enter upon their duties, take an oath or affirmation to support the constitution of thé Confederate States. The members of the legislature of that year, if they took any oath at all, must have taken an oath or affirmation to support the constitution of the Confederate States of America, according to the requirements of said constitution. The legislation of Mississippi, from the date of the ordinance of secession to the surrender of the Confederate armies, was done either without the sanction of an oath, or under an oath to support a constitution adopted in violation of the Constitution of the Union, and for the express purpose of subverting the government of the United States; either of which, we think, would be sufficient to invalidate the legislation. We are aware that our predecessors have arrived at a different conclusion in the case of Hill v. Boyland, 40 Miss. 640. The court in that case says: “ That the provision in the Constitution of the United States as well as that of the State of Mississippi, requiring members of the legislature to take an oath to support the Constitution of the United States, is merely directory; and the failure to take such oath will not invalidate their action.” The Constitution of the United States provides that the senators and representatives in Congress, and the members of the several State legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation to support that Constitution. We cannot think that so important a provision in the paramount law of the land was intended to be merely directory, and not absolutely necessary to be complied with. Story, in the third volume of his Commentaries on the Constitution of the United States, 702, says: “ That all those who are entrusted with the execution of the powers of the national government should be bound by some solemn obligation to the due execution of the trusts reposed in them, and to support the Constitution, would seem to be a proposition too clear to render any reasoning necessary in support of it. It results from the plain right of society to require some guaranty from every officer, that he will be conscientious in the discharge of liis duty. Oaths have a solemn obligation upon the minds of all reflecting men, and especially upon those who feel .a deep sense of accountability to a Supreme Being. If, in the ordinary administration of justice in cases of private rights or personal claims, oaths are required of those who try, as well as of those who give testimony to guard against malice, falsehood, and evasion, surely like guards ought to be interposed in the administration of high public trusts, and especially in such as may concern the welfare and safety of the whole community.”

“ But it may not appear to all persons quite so clear, why the officers of the State governments should be equally bound to take a like oath or aflirmation, and it has been' even suggested that there is no more reason to require that, than to require that all of the United States’ officers should take an oath or affirmation to support the State constitutions. A moment’s reflection will show sufficient reasons for the requisition in the one case, and the omission of it in the other The members and officers of the national government have no agency in carrying into effect the State constitutions. The members and officers of the State governments have an essential agency in giving effect to the national Constitution. The election of the President and the Senate will depend in all cases upon the legislatures of the several States ; and in many cases the election of the House of Representatives may be affected by their agency.” This reasoning we deem satisfactory. Cooley’s Constitutional Limitations, 74, 78, 82,140,150 ; Duer’s Constitutional Jurisprudence, 403.

What the government of the State of 'Mississippi, a member of the Confederate States, did, from the passage of the ordinance of secession in 1861 to the surrender of the Confederate armies in 1865, cannot with any propriety be said to have been done by the government of the State of Mississippi, one of the United States. When that ordinance passed, there ceased to be within the State, a government under the Constitution of the United States. The governments of the several States of the Union are recognized by the government of the United States, and the government of the United States may refuse to recognize a particular State government, or may withdraw a recognition already given. Thus, in the time of the Dorr rebellion in Rhode Island there were two governments, each of which claimed to be the lawful government of the State, and the United States recognized one of them, and refused to recognize the other. And when South Carolina and several other States seceded, as it was called, the United States, though requested, refused to recognize the new out-union governments, as being no governments at all in those States. Yet, as those, new governments superseded the old ones, there ceased to be any governments in those States recognized by the United States. It is nevertheless true, that, in point of fact, there were governments in those States.

Mr. Madison, in his report on the Virginia resolutions, says : “ That the term States is sometimes used in a vague sense, and sometimes in different senses, according to the subject to which it is applied. Thus, it sometimes means the separate sections of territory occupied by the political societies within each; sometimes the political governments established by those societies ; and lastly, it means the people composing those political societies in their highest sovereign capacity.”

The government of the United States has uniformly, from early in 1861 to the spring of 1865, characterized the controlling authorities of those seceded States not as governments, but as unlawful combinations of rebellious persons, usurping the functions of government, and forcibly controlling the people. That government has invariably regarded them as parts of a machinery for waging unlawful war, and making treasonable, resistance to the rightful authority of the United States, having their central power in the government of the Confederate States, and co-operating in one combination for the unlawful and treasonable purpose of overthrowing by force of arms the Constitution of the United States.

It is insisted by counsel for the defendant in error, that the government of the State of Mississippi, during the late disastrous war, was at least a government defacto, whose obligations devolved upon the succeeding government. The terms de facto, as descriptive of a government, have no well-fixed and definite sense. It is, perhaps, most correctly used as signifying a government completely, though only temporarily, established in the place of the lawful or regular government, occupying its capital and exercising its power, and which is ultimately overthrown and the authority of the government de jure re-established. Guided by this rule, neither the government of the Confederate States nor the several governments of any of the States, composing the Confederacy can properly be said to be a defacto government, from the date of secession to the overthrow of the Confederate government. As to the Confederate government, it never held the national capital. It never asserted any authority to represent the nation. It was only what it professed to be — a revolutionary organization, seeking to establish a Confederacy of States, and dependent wholly for success upon the success of the revolution. But it never has been held that those participating in a rebellion, which had only extended its authority over part of a country, had established a defacto government. As to the government of this State, it was not overthrown by the former lawful government of the State, but by the arms of the United States; and when thus overthrown, it was not succeeded by the re-establishment of the authority of the former government de jure, for the reason that that government was wholly destroyed by.the establishment of the new government under the ordinance of secession.

But the terms defacto, when employed as descriptive of government, are often used, and perhaps more frequently in a sense less precise than that above indicated, as signifying any organized government, established for the time over a considerable territory, in exclusion of the regular government. A de facto, government of this sort is not distinguishable in principle from other unlawful combinations. It is distinguishable in fact mainly by power, and in territorial control, and by the policy usually adopted in relation to it by the national government. With respect to such a government, it is clear that none of its acts in hostility to the regular government can be recognized as lawful, yet it is equally clear that transactions between individuals, which would be legal and binding under ordinary circumstances, cannot be pronounced illegal and of no obligation, because done in conformity with laws enacted or directions given by the usurping power. Between the extremes of lawful and unlawful there is a large variety of transactions, to which it is difficult to apply strictly any general rule.

It cannot be denied that the government of the Confederate States was in possession -of many of the highest attributes of sovereignty — sufficiently so to be regarded for the time as the ruling or supreme power of the district of country over which its jurisdiction extended, and of sufficient resources in men and money to carry on a civil war of unexampled dimensions; and during all which time, in the interests of humanity, to mitigate the vindictive passions growing out of a civil conflict, and to enable the United States to invest the people of the Confederate States with the character of public enemies, and their property as enemies’ property, iii order that the advantages of capture and seizure might be rightfully sécured according to the laws of war, many belligerent rights were conceded to it by the supreme government. Nevertheless, the Supreme Court of the United States, in the case of Mauran v. Insurance Company, 6 Wallace U. S. Rep. 13, have decided that all the proceedings of the States in rebellion, either severally or in conjunction, by means of which the lawful governments in those States were overthrown, and new governments erected in their stead, were wholly illegal and void.

In the case of Hill v. Boyland, 40 Miss. 637, the court say: “Admitting, then, that the act of secession was a nullity, the State of Mississippi, neither in fact nor in legal contemplation, could be annihilated by a void ordinance. The attempt to change her relations towards the United States government only involved her external relations. "Within her limits there remained a regularly organized government de ju/re, as well as defacto, which was never disputed.” We freely admit that neither the people nor the territory of the State of Mississippi was annihilated by the void ordinance of secession, but we deny that 'the political organization established by the people of Mississippi, immediately following the passage of that ordinance, was a government de jure of the State; and we have before shown that it was not even a government defacto, according to the meaning of those terms as used in international law, when applied to the facts as they existed at the time that that organization was in operatipn in this State. The old government of the State was undoubtedly abolished by the new one, which had a constitution, as.we have elsewhere shown, different in many important features from the old one. We think it would be transcending the bounds of judicial propriety to enter fully here into a discussion of the theory of State rights, which we think, is better suited to a political arena than a judicial forum. We will, therefore, content ourselves with the expression of a respectful dissent from the doctrines laid down by our learned predecessors in the case above referred to.

It is insisted that the laws of the State enacted during the war continue in force until altered or abrogated by the succeeding government.

The doctrine, that, by the law of nations, the municipal laws of a ceded or conquered country, existing at the time of cession or conquest, continue in force until altered or abrogated by the new sovereign, is not applicable to a case of rebellion. The territory of the State of Mississippi, was a district of country constituting a part of the territory of the United States. No nation can make a conquest of its own territory. It acquires no new title, but only regains the possession of which it was temporarily deprived. Upon the reduction of the rebellion, the territory of Mississippi was neither ceded to, nor conquered by, the United States, and therefore the principle invoked will not avail the defendant in error.

The State of Mississippi was absolved from the obligation of her contract to receive the treasury notes, commonly called the cotton notes, issued under the authority of the statute of the 19th December, A.D. 1861, in payment of the taxes and dues to her, by the destruction of the government which enacted it by the arms of the United States, in 1865.

A state is defined by Mattel, 59, to be a body politic, or a society of men, united together to promote their safety and advantage, by means of their union; who are guided and directed by the public political authority — the government. Government is the ligament that holds the political society together, .and when that is destroyed, the society as a political body is dissolved.

Nutheforth, in his Institutes, lays down the doctrine, that ■“the rights which belong to a civil society fail or are lost when the society ceases to exist; and upon the same event the members of it lose their rights. But this is to be understood of those rights only which belonged to them as members of the society, and not of those which belonged to them as individuals. The right which each of them had to his life, to his liberty, to his lands, or to his movable goods, and other rights ■of .the same sort, are not directly affected by the destruction of ■the society of hvhich they were members, however they may happen to be remotely affected. The same effect that is produced by the destruction of a society in the rights of the whole collective body and of its several members, will be produced, likewise, in their respective obligations. Thus the debts of a society are ■cancelled when the society perishes; though the members, whilst the society .subsisted, were jointly bound to contribute towards the payment of the public debts, this obligation will cease when the society subsists no longer. But the destruction of the society does not cancel any debts which the members of it had contracted as individuals, upon .their own private account.”

The laws of the insurrectionary government ceased when that government was overthrown. They had no legal authority, and had only the authority which force gave them, and when that yielded, the laws enacted by the unlawful government ceased to have any operative force as to the future. They could not, in the nature of things, continue to operate without the consent of the incoming legitimate authority. It rests with the succeeding legitimate government to revive and continue them in force.

The laws of the insurrectionary government of the State could not be enforced by the courts of the country unless they were adopted by the legitimate government, for the reason that the government that enacted them never was recognized by the government of the United States or any department thereof. ITalleck on International Law and Laws of War, 75, § 22, says: “ The recognition of the independence and sovereignty of a revolted province by other foreign states, when that independence is established in fact, is a question of policy and prudence only, which each state must determine for itself; but this determination must be made by the sovereign legislative or executive power of the state, and not by any subordinate authority, or by the private judgment of individual subjects. And until the new state is recognized by the government of the country of which it was before a part, or by the foreign state where its sovereignty is drawn in question, courts of justice and private individuals are bound to consider the ancient state of things as remaining unaltered.” Wheaton enunciates the same doctrine in his Treatise on International Law, part 1, chapter 2, § 10. And in the case of Luther v. Borden, 7 How. U. S. Rep. 1, the court says: “Where there is a controversy between two governments as to which is the true government, the question must be settled by the political department, and not by the judiciary. The Constitution of the United States, as far as it has provided for an emergency of this kind, and authorized the general government to interfere in the domestic concerns of a State, has treated the subject as political in its nature, and placed the power in the hands of that department; that under the fourth section of the fourth article of the Constitution it rests with Congress to decide what government is the established one in a State. For, as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not; and when the senators and representatives of a State are.admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority; and its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal.. The right to decide such questions is placed in Congress, and not in the courts.”

No one, we believe, has ever doubted the proposition, that, according to the institutions of this country, sovereignty in every State resides in the people of the State, and that they may alter and change their form of government at their own pleasure. But whether they have changed it or not by abolishing the old government and establishing a new one in its place, is a question to be settled by the political power. And when that power has decided, the courts are bound to take notice of its decision, and to follow it. Any other rule of practice would break up the harmony of the government, and expose its political and judicial departments to continued conflicts. The one might recognize the new government, and the other refuse to do so; and thus involve the nation in conflicts of power between the different departments of the goverment. The new State government that enacted its laws has ceased to exist; it has no power any longer to enforce them, and surely it cannot with any legal propriety be contended that the courts of the United States, either State or Federal, are bound to execute the law of an extinct insurgent power enacted against the policy and authority of the government of the United States, and with a view to its overthrow.

The rebellion, in its revolutionary progress, having deprived the people of the State of Mississippi of cell civil government, the President of the United States, in order to avert the manifold evils consequent upon a state of anarchy, assumed to initiate the means for reorganizing a civil government for the people of the State, and with that view, on the 13th of June, A.D. 1865, appointed a Provisional Governor of the State, who, after appointing certain civil officers, and reviving and declaring certain laws to be in force, called a convention of the people of the State. That convention, in the month of August of that year, framed a constitution and organized the government now existing in the State, and passed an ordinance by which all the laws enacted by the legislature of the State, since the 9th of January, 1861, so far as the same were not in conflict with the Constitution and laws of the United States or of the constitution of this State as it existed on the 1st day of January, 1861, or in aid of the rebellion, except the laws in relation to crimes and misdemeanors, and except also an act to enable the railroad companies of this State to pay the moneys borrowed by them, approved December 7th, 1863, were revived, ratified, and declared to be valid and binding from their respective'dates, and to remain in force until altered or repealed by the proper authority. And by the provisions of that ordinance all the official acts of the public officers of the State; all the official acts, proceedings, judgments, decrees, and orders of the courts of the State; and all marriages of persons capable of contracting that relation —■ are legalized, ratified, and eon- ■ firmed.

Whether the President, in thus proceeding, transcended his legitimate powers, it is unnecessary to inquire, inasmuch as the Congress of the United States have recognized the existing government of the State as a provisional one. It is competent for the political department of the supreme government to waive any irregularity in the formation of a State government, and recognize it, as was done in the case of California; and such act of recognition, though the proceeding might have been irregular, will bind the country and the courts.

The act in question of the 19th of December, 1861, authorized the issuance of treasury notes to the amount of five millions of dollars. This act, by virtue of which the treasury note was issued that was tendered to the plaintiff in error by the defendant in error in payment of the tax due the State on his cotton, we believe, in its operation and effects, to have been in aid of the late rebellion, and therefore was not revived and continued in force by the ordinance of the Convention of 1865. We regard it as a part of the financial system of the State at a time of great pecuniary want, to supply not only a circulating medium for the people in the transactions of their ordinary business, but also to furnish the means by which an empty treasury of the State might be replenished.

The tenth section of the act provides “that the said treasury notes shall be receivable .in payment of all taxes now duo or that may hereafter become due to this State, or to any county or school fund, or municipal corporation, except the military tax; ” and that “ the said notes, when so received for taxes, may again be paid out by the treasurer upon any warrant of the auditor, drawn upon the general treasury.” Hence, it will be seen that these notes were intended to supply an important part of the revenue by which the State government was to be sustained and enabled more effectually to aid the Confederate government in the prosecution of a sanguinary war, waged expressly for the jrarpose of subverting the government of the United States. Those treasury notes, being thus issued against the public policy, and in violation of the Constitution of the United States, are, therefore, illegal and void.

This view of the case makes it unnecessary to consider whether these treasury notes are in violation of that provision of the Federal Constitution which prohibits the States from emitting bills of credit.

For the reasons stated in this opinion, the decree must be reversed, the demurrer sustained, the injunction dissolved, and the bill dismissed.

A petition, for a re-argument was presented, and a re-argument refused.