Mansker v. State

• Decision Date: 31 May 1824
• Citation: 1 Mo. 452
• Parties: MANSKER, GRAVES AND SIMPKINS, v. THE STATE.
• Court: Missouri Supreme Court

1 Mo. 452

MANSKER, GRAVES AND SIMPKINS,

v.THE STATE.

Supreme Court of Missouri.

May Term, 1824.

APPEAL FROM THE CAPE GIRARDEAU CIRCUIT COURT.

MCGIRK, C. J.

This is an action of covenant, brought to recover a certain sum therein mentioned. The defendants plead thereto, that at the June session of the General Assembly of the State of Missouri, in the year 1821, the Legislature of said State passed an act, authorizing the issue of certain loan office certificates, to the amount of $200,000, and pledged the faith and funds of the State for the redemption thereof; and and that the Legislature authorized certain commissioners, on behalf of the State, to loan out said certificates, taking from the borrowers thereof, certain obligations for the repayment thereof, according to certain provisions in said act contained; that said loan office certificates, as they were denominated by said act, did issue, and that they borrowed the amount for which they sued, of the commissioners, and for that consideration, and none other, they made the covenant to the State, on which the suit is brought. Wherefore, they pray judgment if said denominated loan office certificates are not bills of credit, within the meaning of the 10th section of the first article of the Constitution of the United States which says, “no State shall emit bills of credit,” &c., and if they are liable to have judgment on said covenant against them.

Two questions arise on this case. The first is, are the certificates, which formed the consideration of this covenant, bills of credit, within the meaning of the 10th section of the 1st article of the Constitution of the United States.

And the second is, if they are such bills of credit, can they form a foundation of a contract, which can be enforced in a court bound to regard the Constitution as the supreme law of the land?

According to the English vocabularies, these certificates are not bills of credit but that they are the sort of thing prohibited by the Constitution, I have no sort of doubt. The history of the times in which the Constition was formed, proves to me most satisfactorily, that these certificates are nothing else but bills of credit. When a State attempts to supply the place of specie currency by the issue of a paper currency, founded on its resources, and sustained or attempted to be sustained, by its faith, or the just claim it may have of porforming its promises, and puts this paper into circulation, as money, by loan or otherwise, I understand it has emitted bills upon its credit, and has violated the Constitution. The evil guarded against, is a paper currency founded on the credit of the State. This, by the Constitution, cannot exist; nor shall any State coin money, says the Constitution. Here we see a State cannot make money of paper, nor of the precious metals, nor make any thing but gold or silver coin, a tender in payment of debts. By the act of the Legislature, these certificates shall pay taxes, and all debts due the State, and they shall pay all debts due by the State to its officers, of every description. Thus, we see, it is to be used as money is used; it is to pay taxes and debts, and is to be loaned for an interest, as money is loaned. What more could be required to enable these certificates to take the place of money, unless it were made a tender in payment of debts, instead of gold and silver coin. This, too, by a subsequent act of the same Legislature (now repealed) was done under such circumstances as left the creditor no reasonable or lawful alternative.

Now to the second point. Can the State recover on this covenant? When the question is first stated, that these certificates are bills of credit, and their emission and existence are contrary to the Constitution, it seems to me, the first answer of the judgment of every one is, that if the issue is unlawful and unconstitutional, so is the lending, the contract of borrowing, and the attempt to recover. The 6th article and second clause under the Constitution says, this Constitution, &c., shall be the supreme law of the land, and the judges, in every State, shall be bound thereby; any thing in the Constitution or laws of any State, to the contrary notwithstanding. What is meant by the State judges being bound thereby? It must mean that they are to execute the provisions of the Constitution, when they come judicially before them; that when an act is done agreeably to the Constitution, they must decide, the act is lawful and right, though a State act should declare the contrary; and that, where the Constitution forbids a thing to be done by a State, the court must decide the thing unlawful; and that it neither confers nor creates a legal right or benefit to the State, which can be enforced to her advantage, though an act of the Legislature should command the contrary. How else can a judge be bound, to any sensible purpose, by a Constitution, or a constitutional act, but by enforcing its command, and refusing to give any aid or assistance to that which seeks a benefit, contrary to a prohibition in the instrument?

By the same second clause, the State judges are required to be sworn, or affirmed to support the Constitution. What sort of support is it to be? The judges have none of the leading instruments of power, belonging to a State; they have neither its sword nor purse. As citizens, they can only support it by not violating its commands, and as judges, by decreeing what it wills, and by refusing to give, by their judgments and decrees, all benefits, claimed in consequence of any act done, which was a violation of the instrument. This is what I understand by a judge supporting the Constitution. If this exposition is just, how can the State recover? The State cannot recover, because the foundation of this contract, on the part of the State, was a part of the means used to emit bills of credit, and to violate the Constitution. These certificates could not exist by the consent of law, but against its will. The State could not, therefore, lawfully lend that which she could not owe. Can a lawful and constitutional right accrue to the State, in consequence of an unlawful and unconstitutional act, done by her? But it is said no individual right is infringed; that the borrower cannot complain, because no constitutional right of his is violated. The answer to this is, that the constitutional right of every one in the American Union has been violated. Each and all have a right to demand that no such paper shall be emitted. The objection lies against him who seeks a benefit in consequence of an unconstitutional act, in favor of every one against whose interest the benefit is sought.

It has also been argued, that the United States, only, can complain, and that no Constitution has been violated, as to these defendants. That the other States in the Union have cause of complaint, I have no doubt; and that the defendants can lawfully resist this suit, I have as little doubt. Their exemption is not, that they can a ropriate the injury done to another, to themselves. It is not, that an ex post facto law, nor law impairing the obligation of their contract, has passed, but that, by the Constitution, for the welfare of the nation, certain things cannot be done. No State can pass any act of attainder, nor grant any title of nobility. But suppose a State should pass an act of attainder against A., corrupting his blood, forfeiting his estate, and vesting it in itself, could any sale the State could make of such estate, vest any title in a purchaser? My answer is, that the act of attainder would be absolutely void, because repugnant to the supreme law of the land; that the execution of A. would be murder, and that his estate would vest in his heirs, exactly to the same extent it would have done, if the act of attainder had not passed, and he had died by any other way; and that it would be in vain for the State to repeal all laws on descents and distributions, and felonions homicide; for, that the title being once lawfully vested in A., could not be vested but by his consent, or by the act of some authority having competent power to do so. If, by the act of attainder, the State could confer no interest to themselves, nor to their purchaser. It seems to be a reasonably fair deduction, that if they emit bills of credit, they cannot thereby create any interest in themselves, nor obligation against another; and this is the exemption of the defendants.

I cannot admit the force of the doctrine, which seeks to establish the distinction, that because the emitting bills of credit is complete, and the Constitution as much violated as it can be, that, therefore, that part of the law which seeks to redress the evil, by calling in the paper, is separate and distinct from the original transaction, and is constitutional. My opinion is, the State must gather the same sort of fruit of which she has sown the seed. She cannot be permitted, with one hand, to pull down the barriers of the Constitution, and with the other, gather the spoils of the ruins. If these principles are not correct, the Constitution is a dead letter; it has no guaranty but the arm of power.

The first section of the act creates five loan offices in the State; the third directs certain officers to make and send to these offices $200,000; the fifteenth section provides for loaning out the bills on mortgage; the sixteenth, for loaning on personal security; and the twentieth provides the remedy, by suit, in case of a failure to pay. By this, we see the remedy given by the act to bring in the paper, is a part of the same transaction, and was not intended to be a balsam for the injury done, but was intended as a part of the means by which the credit of the paper should be sustained, and the State benefitted. Nor does it, in my opinion, help the matter, that the loan office act has been repealed, and another act passed, authorizing and requiring suit to be brought, with a view to bring in the paper to be...