[Briscoe et al. v. The Commonwealth Bank of Kentucky.]

The obligation of a contract, without an effective remedy to enforce it, would be "a name," and not "a thing;" the word obligation would be an "empty sound," and the protection of the constitution a solemn mockery. Yet if it is held to prohibit the emission only, of bills of credit which were not a tender, it would prevent none but imaginary evils, and leave real practical ones unredressed. To emit the notes of an individual or a private corporation, for the purposes of circulation, would be productive of the same evils as the bills of credit of a state; the mischief does not depend on who is the owner of the stock pledged for its payment, or on whose credit they are received in circulation. Yet it is conceded by counsel and agreed by all the judges, that bank notes are not within the prohibition, though they are as much "paper money," "paper medium," as the bills of credit of a state. Why then should the prohibition extend to the mere emission of the latter, and not to the former species of paper money, when neither are a tender in payment of debts? What good reason can be assigned, why the constitution did not prohibit the emission of both, if it prohibits one, and on what ground does the discrimination rest? It cannot be that there is less danger, in having the paper medium of the country based on the funds, faith, and credit of the state, which can by taxation, levy a contribution ad libitum, on all the property of all its citizens, for its redemption, 4 Wh. 428; 4 Pet. 563, than when a bank emits it on the mere credit of their corporate stock. Nor that a state will more readily sport with and abuse its plighted faith, than a corporation, an individual, or a banking association.

66

These questions are not unworthy the consideration of those who hold that it is not necessary to bring bills of credit within the prohibition, that they be made a tender in payment of debts. That all paper intended to circulate through the community for its ordinary purposes as money, which paper is redeemable at a future day, the emission of any paper medium by a state government, for the purpose of common circulation," though not made a tender, and though the faith, funds, or credit of the state are not pledged for its redemption, are bills of credit. They are also worthy of notice by those who hold that paper emitted by the officers of a state, under the authority of a law, which paper is of the precise character above defined, which is made a tender, and for the redemption of which the funds and faith of the state are both most solemnly pledged in the law directing its emission, are not bills of credit within the prohibition. It will not suffice, that a disclaimer is made of its extension to bank notes, or a declaration that they are not included within the mischiefs, without assigning the reasons, or referring to the authority on which the discrimination is made on just principles of construction. For myself, I rest on the most solemn adjudications of this Court, as well prior as subsequent to the case of Craig v. Missouri, settling the rules and principles on which the most important prohibition in the tenth article has been construed; and in applying them to the

[Briscoe et al. v. The Commonwealth Bank of Kentucky.]

clause now in question, find abundant authority for holding it necessary, that bills of credit be made a tender in payment of debts, to come within the prohibition. Taking my definition of bills of credit of a government, from acts of parliament, of the old and new congress, the articles of confederation, and the constitution, I held in Craig v. Missouri, that certificates emitted by a state, for circulation, payable in future on the faith and funds of the state, which certificates were made a tender, were prohibited as bills of credit. On the same authority I now hold, that the notes in question are not such bills of credit, because not emitted by the state, not made a tender in payment of any debts to individuals, nor the faith or general funds of the state pledged for their redemption. And further; On the authority of acts of parliament, of the old congress, of state legislatures before the adoption of the constitution, and acts of congress since, and of the common law, I make the distinction between the bills of credit, issued under the seal of a bank, and bank notes payable to bearer on demand, and hold that the latter can by no just definition, or legal construction, come within the prohibition. I have resorted to these sources of information, as the fountain of constitutional law and have found in them abundant cause of justification of the opinions which I formed in the former case, and adhere to in this. The plaintiffs have relied much upon the pleadings in this record, as presenting the question in controversy in an aspect different from what it would have been, if the averments of the plea had been denied by a replication, instead of being admitted by a demurrer.

These averments are in the first plea. 1. That the state, by the law establishing the bank, declared that the capital stock thereof should be 2,000,000 dollars. 2. "But which capital stock the said bank never received, or any part thereof, as these defendants aver.” From the admission of these averments, it is contended, that inasmuch as the capital stock was not made up and paid into the bank by the state, pursuant to the declaration contained in the law, the faith and credit of the state was legally, virtually, and morally pledged to provide this amount of capital, as a fund for the redemption of the notes issued by the bank. And that having violated this pledge, the state was bound, and, if suable, was compellable to pay them; whereby the notes of the bank became bills of credit of the state, as effectually as if they had been emitted on an express pledge of its faith or credit for their redemption.

The first averment is founded on the law of incorporation, and is an averment of mere matter of law as to which it is among the oldest and best settled rules of pleading, that the law will not suffer an averment of that to be law, which is not law; such averment or pleading is to no effect or purpose, though admitted by demurrer; Pl. 168, a, 170, b. On an inspection of the law, it appears that this averment refers only to the section which declares what the amount of the capital shall be; but the plea wholly omits any reference to the section which specifies the items which shall compose that capi

[Briscoe et al. v. The Commonwealth Bank of Kentucky.]

tal as a fund for the redemption of the notes. It is the proceeds of the lands belonging to the state, its surplus revenue, the stock of the state in the bank of Kentucky, and the securities taken by the bank, on a loan of its notes to individuals. The mode of redemption was in making these notes receivable in payment for lands, taxes, debts due the state, the Bank of Kentucky, and the Bank of the Commonwealth. This was the only pledge given by the state, and it is not averred in the pleas that this pledge was in any way violated, by any refusal to receive the notes for any such purposes; on the contrary, it is admitted that they were always so received; consequently, the state has faithfully kept its faith, as entire as it was pledged by the law. This part of the plea, therefore, is to no purpose or effect, so far as it avers that to be law which is not law.

The notes of the bank constituted no part of its capital; while they remained on hand, they were worthless to the bank; when loaned out, they became the evidence of a specie debt, due by the bank on demand, to the holder; the securities taken for repayment, were part of the capital for their redemption. But as they were taken only for the precise amount of the notes loaned, the amount of debt due by and to the bank was equal, with only this difference, that the bank paid no interest on their notes, while they received interest on their loans; the accretion of interest, therefore, was the only means of increasing the capital, by the issue of their notes. If they were burnt, according to the direction of the law, after they had performed their function, in their reception as payment by the state, or the bank, it was no loss to the bank which issued them; or if the notes were returned to the bank by the state treasurer, or the bank of Kentucky, they were as useless, as capital, as before they were first issued. In reissuing them, their operation was the same, adding nothing to the capital; indeed, the proposition is self-evident, that a bank note is not a fund for its own payment; a debt due by a bank, is not a part of the capital stock, pledged for the payment of the debt.

It thus appears, that by the terms and necessary operation of the law, though the term capital stock is used in the law, the thing which was made the capital was the proceeds of lands, taxes, debt, and bank stock; and as the law and constitution regard things, and not names, such must be taken to be the spirit, substance, and effect of the law of incorporation. Hence, the second averment is of a fact wholly immaterial, since it was no part of the law that the capital should ever be received by the bank in any other manner than the one pointed out, which was in fact the only manner in which it could be received; that is, as a fund for the redemption of its notes. In virtue of this law, purchasers of land, and debtors of the state, or banks, had the option of making payment in specie, the notes of other banks, or of the Commonwealth Bank; they would, of course, pay in that medium which was the easiest, and cheapest to be obtained, which must have been the notes of the Bank of the Com

[Charles River Bridge v. Warren Bridge et al.]

monwealth, or they would never have been issued. So that the inevitable effect of the law, and the emission of these notes on loan, was to make their receipt in payment, the means of their redemption, in addition to the securities on which the loan was made, and precluded any reasonable probability, or even possibility, that the proceeds of the pledged funds would be paid into the coffers of the bank, in specie, or the notes of other banks, unless the notes of the Commonwealth Bank were more valuable, or more difficult to be obtained than either.

That such a consummation was in the contemplation of the legislature, or can be assumed by the Court, in order to give effect to the plea, is a proposition too extravagant to have been made by counsel; if this assumption is not made, that the state was bound by the law to make up the capital stock of the bank by the actual receipt of the pledged funds, then there can be no pretence of its reception being a material averment. Had this second averment been put in issue, and found for the defendant, the Court must have rendered a judgment for the plaintiff non obstante veredicto if he was otherwise entitled to judgment, on the ground that the issue was on an immaterial fact; 1 Pet. 71.

THE PROPRIETORS OF CHARLES RIVER BRIDGE V. THE PROPRIETORS OF THE WARREN BRidge.

In this case I entirely concur in the judgment of the Court, as well as the reasons given in the opinion delivered by the Chief Justice; my only reason for giving a separate opinion is, to notice some matters not referred to in that opinion, which I am not willing should pass without expressing mine upon them. The course of the argument, and the nature of several questions involved in the case, gives them an importance deserving attention from these and other considerations, which I cannot overlook.

The first question which arises in this cause, is on an objection to the jurisdiction of the court below, made by the appellees, on the ground of the want of proper parties; and that the state of Massachusetts, being now the owners of the bridge pursuant to the terms of the charter to the defendants, no suit could be sustained which can affect their interest in it. On an inspection of the record, the case is one which does not admit of this objection, if it was well founded otherwise. The bill was filed in June, and the pleadings closed in December, 1828, so that we have no judicial knowledge of any matters which have arisen since; confining itself, as the Court must do, to the pleadings in the cause, and the decree of the court below, we can notice nothing not averred in the bill or answer, nor act on any evidence which does not relate to them.

[Charles River Bridge v. Warren Bridge et al.]

An injunction is prayed for by the plaintiffs, to restrain the defendants from erecting a bridge over Charles river, pursuant to their charter in the act of 1828, which they allege to be a violation of their rights, by impairing the obligation of previous contracts made by the state with the plaintiffs. When the pleadings closed, the defendants had not completed the bridge complained of; they were then the only persons who had any present interest in it; they were constructing it for their own benefit, and were to have the sole and exclusive use of it, till by the terms of the charter it became the property of the state; they were therefore the proper, and the only parties against whom a bill for an injunction could then be sustained. If then the plaintiffs were in June, 1828, entitled to a decree restraining the erection of the bridge, their right cannot be affected by any matter pendente lite, or by any reversionary right, which may have accrued to the state. The case must be decided, as it ought to have been decided in December, 1828, and the only question before the court below on the pleadings and exhibits, was on the right of the plaintiffs to the only remedy prayed, which was an injunction; that court had jurisdiction between the parties to the suit, to decide the question of right between them, but could go no, further than to grant the injunction against the erection of the bridge, because the bill avers no matter arising subsequent to December, 1828.

Whether on an amended, a supplemental, or an original bill, a decree can be rendered for an account of tolls received, and for the suppression of the bridge, is a question which can arise only after a reversal of the decree now appealed from, and such a state of pleading as will bring subsequent matters before the court below.

It has also been objected that the plaintiffs have a perfect remedy at law, if their case is such as is set forth in the bill, and therefore cannot sustain a suit in equity. If this case came up by appeal from a circuit court, the question might deserve serious consideration; but as the courts in Massachusetts derive their equity jurisdiction from a state law, it becomes a very different question. The supreme court of that state is the rightful expositor of its laws; 2 Pet. 524, 5; and having sustained and exercised their jurisdiction over this case, as one appropriate to their statutory jurisdiction in equity, it will be considered as their construction of a state law, to which this Court always pays great, and generally conclusive respect. Our jurisdiction over causes from state courts, by the twenty-fifth section of the judiciary act, is peculiar; no error can be assigned by a plaintiff in error, except those which that act has specified, and the Court can reverse for no other. It may be a very different question, whether the defendant in error may not claim an affirmance, on any ground which would entitle him to a decree below, which it is unnecessary to consider, as these objections to the jurisdiction cannot be sustained.

The next question is one vital to the plaintiffs' case if decided