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tion of the constitution for which the counsel for the defendant in error contends.
The certificates for which this note was given being in truth “ bills of credit” in the sense of the constitution, we are brought to the inquiry, —
Is the note valid of which they form the consideration ?
It has been long settled that a promise made in consideration of an act which is forbidden by law is void. It will not be questioned that an act forbidden by the constitution of the United States, which is the supreme law, is against law. Now the constitution forbids a state to “emit bills of credit.” The loan of these certificates is the very act which is forbidden. It is not the making of them, while they lie in the loan offices, but the issuing of them, the putting them into circulation, which is the act of emission; the act that is forbidden by the constitution. The consideration of this note is the emission of bills of credit by the state. The very act which constitutes the consideration is the act of emitting bills of credit, in the mode prescribed by the law of Missouri ; which act is prohibited by the constitution of the United States.
Cases which we cannot distinguish from this in principle have been decided in state courts of great respectability, and in this court. In the case of The Springfield Bank v. Merrick et al. (14 Mass. Reports, 322) a note was made payable in certain bills, the loaning or negotiating of which was prohibited by statute, inflicting a penalty for its violation. The note was held to be void. Had this note been made in consideration of these bills, instead of being made payable in them, it would not have been less repugnant to the statute ; and would, consequently, have been equally void.
In Hunt v. Knickerbocker, (5 Johnson's Reports, 327,) it was decided that an agreement for the sale of tickets in a lottery not authorized by the legislature of the state, although instituted under the authority of the government of another state, is contrary to the spirit and policy of the law, and void. The consideration on which the agreement was founded being illegal, the agreement was void. The books, both of Massachusetts and New York, abound with cases to the same effect. They turn upon the question, whether the particular case is within the principle, not on the principle itself. It has never been doubted that a note given on a consideration which is prohibited by law is void. Had the issuing or circulation of certificates of this or of any other description been prohibited by a statute of Missouri, could a suit have been sustained in the courts of that state on a note given in consideration of the prohibited certificates ? If it could not, are the prohibitions of the constitution to be held less sacred than those of a state law ?
It had been determined, independently of the acts of congress on that subject, that sailing under the license of an enemy is illegal. Patton v. Nicholson (3 Wheaton's Reports, 204) was a suit brought in one of the courts of this district on a note given by Nicholson to Patton, both citizens of the United States, for a British license. The United States were then at war with Great Britain ; but the license was procured without any intercourse with the enemy. The judgment of the circuit court was in favor of the defendant; and the plaintiff sued out a writ of error. The counsel for the defendant in error was stopped, the court declaring that the use of a license from the enemy being unlawful, one citizen had no right to purchase from or sell to another such a license, to be used on board an American vessel. The consideration for which the note was given being unlawful, it followed, of course, that the note was void.
A majority of the court feels constrained to say that the consideration on which the note in this case was given is against the highest law of the land, and that the note itself is utterly void. In rendering judgment for the plaintiff, the court for the state of Missouri decided in favor of the validity of a law which is repugnant to the constitution of the United States.
In the argument, we have been reminded by one side of the dignity of a sovereign state, of the humiliation of her submitting herself to this tribunal, of the dangers which may result from inflicting a wound on that dignity ; by the other, of the
still superior dignity of the people of the United States, who have spoken their will in terms which we cannot misunderstand.
To these admonitions we can only answer, that, if the exercise of that jurisdiction which has been imposed upon us by the constitution and laws of the United States shall be calculated to bring on those dangers which have been indicated; or if it shall be indispensable to the preservation of the union, and, consequently, of the independence and liberty of these states; these are considerations which address themselves to those departments which may with perfect propriety be influenced by them. This department can listen only to the mandates of law; and can tread only that path which is marked out by duty.
The judgment of the supreme court of the state of Missouri for the first judicial district is reversed; and the cause remanded, with directions to enter judgment for the defendants.
4 Pet. 438.
; PROVIDENCE BANK v. BILLINGS AND PITTMAN.
JANUARY TERM, 1830.
[4 Peters's Reports, 514 - 565.]
The facts of this case are so fully stated in the following opinion of the court as delivered by the chief justice, that no abstract is needed :
This is a writ of error to a judgment rendered in the highest court for the state of Rhode Island, in an action of trespass brought by the plaintiff in error against the defendant.
In November, 1791, the legislature of Rhode Island granted a charter of incorporation to certain individuals who had associated themselves together for the purpose of forming a banking company. They are incorporated by the name of the “ President, Directors, and Company of the Providence Bank ;” and have the ordinary powers which are supposed to be necessary for the usual objects of such associations.
In 1822 the legislature of Rhode Island passed “ An Act imposing a Duty on Licensed Persons and others, and Bodies Corporate within the State ;” in which, among other things, it is enacted “that there shall be paid, for the use of the state, by each and every bank within the state, except the Bank of the United States, the sum of fifty cents on each and every thousand dollars of the capital stock actually paid in.” This tax was afterwards augmented to one dollar and twenty-five cents.
The Providence Bank, having determined to resist the payment of this tax, brought an action of trespass against the officers by whom a warrant of distress was issued against and served upon the property of the bank in pursuance of the law.
The defendants justify the taking, set out in the declaration, under the act of assembly imposing the tax; to which plea the plaintiffs demur, and assign, for cause of demurrer, that the act is repugnant to the constitution of the United States, inasmuch as it impairs the obligation of the contract created by their charter of incorporation. Judgment was given by the court of common pleas in favor of the defendants; which judgment was, on appeal, confirmed by the supreme judicial court of the state. That judgment has been brought before this court by a writ of error.
It has been settled that a contract entered into between a state and an individual is as fully protected by the tenth section of the first article of the constitution as a contract between two individuals ; and it is not denied that a charter incorporating a bank is a contract. Is this contract impaired by taxing the banks of the state ?
This question is to be answered by the charter itself.
It contains no stipulation promising exemption from taxation. The state, then, has made no express contract which has been impaired by the act of which the plaintiffs complain. No words have been found in the charter, which, in themselves, would justify the opinion that the power of taxation was in the view of either of the parties; and that an exemption of it was intended, though not expressed. The plaintiffs find great difficulty in showing that the charter contains a promise, either express or implied, not to tax the bank. The elaborate and ingenious argument which has been urged amounts, in substance, to this: The charter authorizes the bank to employ its capital in banking transactions, for the benefit of the stockholders. It binds the state to permit these transactions for this object. Any law arresting directly the operations of the bank would violate this obligation, and would come within the prohibition of the constitution. But, as that cannot be done circuitously which may not be done directly, the charter restrains the state from passing any act which may indirectly destroy the profits of the bank. A power to tax the bank may, unquestionably, be carried to such an excess as to take all its profits, and still more than its profits, for the use of the state ; and, consequently, destroy the institu