Lynn v. Polk. due the State, with the exceptions in sec. 3; and what is over the whole, is necessarily a power over the parts. So that the real question is, whether the Legislature can, in any contingeacy, give such power of preference to a creditor over the salaries of officers-her necessary expenses to pay which is essential to her existence-in a word, over all her revenues, and make these subordinate to his claim by contract, to be enforced through his own will, or through the agency of the Federal courts--or in fact any other. But this hereafter. The point now is to show that it is compulsory power over the action of the Legislature. In view of the rights of the creditor under this contract to enforce it in the way we have stated, the compulsion is on the Legislature to levy a tax, and realize it so as to have it in hand on the 1st day of January and July of each year. The penalty is, that the bond will be forfeited, and the mortgage enforced, and the normal life of the State be in the hands of the creditor. All her sources of revenue are mortgaged to him. She can only prevent its enforcement, and the revenues necessary for her existence, from being appropriated by him, by responding to his demands promptly and certainly. To this she is compelled. If she fails she perishes, or her life is choked to the extent of the failure. Is such a Legislature the free, unfettered representative, and can it give voice to the will of a free people? Does it meet with the same unfettered power to do its own will, as Legislatures before have met? It is said, it is the duty of the Lynn v. Polk. State to meet her debt promptly; conceded; but is that duty higher than to live? Is it above the duty to provide for the necessary expenses of the State? If not, then a contract that puts a claim above them must be void. Has the Legislature the power to give a preference to this duty, over that of the higher and vital duty of paying the salaries of her officers? I unhesitatingly affirm, no--and cannot doubt the correctness of the conclusion. But again. These essential duties are left to the free action of the Legislature by the constitution. They are more imperative by far than the duty of paying the creditor his interest. Why should the one be left free by the constitution, and by contract the other made compulsory? Yes, compulsory, by a power over the State's vitals. be in her actiou as to her own government and people, and that freedom cannot be mortgaged as a security for the bond of her creditor. Can it be bargained and bartered in the market by the Legislature, like a wornout garment? If so, instead of being the proud representatives of freemen, it is but fit to stand for slaves, and obey the behests of a master. not what the constitution designs, and can allowed. Free it was intended she should This is never be If the Legislature can by contract give creditors the power to compel the levy of eight hundred thousand dollars per annum for their benefit, why may it not by the same means contract, that they shall compel the levy of two millions, or ten? Concede the power, and who can mark the limit of its exercise, or Lynn v. Polk. say thus far shalt thou go and no farther? No court can fix the boundary line where the power ceases to exist; and so, the principle conceded, it involves the right to give creditors the power to compel the levy of all the taxes that could be levied, and so give them the control over the entire taxing power of the State; and thus the full power, which the Legislature itself has over this vital governmental and legislative function, may be the subject of contract. This is to bargain away the government itself-a thing not marketable, or transferable, as I understand the principles of our constitution. Add to this, however, the proposition, that such a contract may be obtained by bribery and the corrupt use of money, and that the courts can give no help, as is the contention of the defendants-that the only remedy is, not to vote for the faithless representative next time, or to expel him the Legislature; but the people must pay; the debt be valid; and then our constitutional system is but a farce--the rights of the people a myth. But, why shall the Legislature not thus give control over its free action? The answer is, it holds all its powers as a trust, and the duties of that trust, the functions of the trustee charged with them, can never be sold, never trammelled, never subordinated to the will of another, by contract, without interfering with, and frustating the objects of the trust, and defeating or obstructing the arrangements of the constitution. Such a bargain is, therefore, by necessary implication, forbidden. When exercised under this compulsion, the Legislature would not act as the law-making depart Lynn v. Polk. ment of the State, from its own free, untrammelled impulse, at its own will, as the representative of the will of the people, but would be under the control and compulsion of its creditor, whose will it is bound to obey, at the peril of the life of the State, and in this, would be his representative or agent, rather than the representative of the people who elected them. This can only be a gross departure from the terms of the trust under which it holds its power; its consummation, the enslavement of the State to the extent the power exercised. We have two illustrations in our own Reports, that occur to me now, of the principle that the Legislature cannot transfer control over its own functions. The case of Marr v. Enloe, 1 Yer., 453, was an attempt by the Legislature to confer on the counties, through their county courts, the power to levy a tax to meet the current expenses expenses of the county. This was done before the constitution of 1834 had given the authority, as now exists, to authorize counties and incorporated towns to levy taxes for county and corporation purposes. This court, by Judge Catron, with more than ordinary vigor, repudiated such a right, and held the law unconstitutional and void, saying: "Is taxing the people an act of legislation? That the taxing power belongs to the Legislature, and that exclusively, and is, if not the most important, at least of equal magnitude with any power entrusted by the constitution to the general assembly, is a truism never doubted or denied in Tennessee. Can this constitutional right, by an act of the general assembly, be Lynn v. Polk. vested in a few individuals in each county, who are not dependent on the people, to tax without limit, and even spend at pleasure, without responsibility and without control?" The justices were not then elective, but appointed by the Governor. After denouncing this tyranny, he holds the act a nullity. In the case of The State v. Armstrong, 3 Sneed, 634, this court, through Judge McKinney, in terms of vigorous reprobation, held an reprobation, held an act void, that proposed to confer on the courts the power to grant charters of incorporation, though the powers of such corporation were all defined by the act, when created. The principle on which this was done is, that it was an attempt to confer the right to exercise legislative power on the county, which power was confided to that body alone. These cases are not identical with the one now in hand, but the analogy is striking, and the principle the same. The transfer of the power to the county court in one case, and in the other to the circuit and chancery courts, was but giving to these bodies the control of that power to the extent indicated. Το this extent it was a complete control, and was a direct exercise of the power. But there is no difference in principle, whether I give a man the right to do an act that I am to do, or more circuitously, I confer on him the power to compel or control my own action. To the extent that he exercises that control, and may use that power effectively, it is an exercise of the power which I was bound to exercise--only he uses me as his instrumentality. All action under the |