MR. JUSTICE HARLAN.
I dissent altogether from so much of the opinion of the court as declares that the State of Tennessee, as represented by its existing government, is bound to receive, in payment of taxes levied under its authority, the notes of the Bank of Tennessee, issued after May 6, 1861, and during the period when that State was dominated by a revolutionary organization which usurped the functions of the lawful State government.
It is claimed that the obligation of the existing government of Tennessee to receive these bank-notes for taxes arises out of the twelfth section of the bank's charter, granted in 1838, which provides 'that the bills or notes of the said corporation, originally made payable, or which shall have become payable, on demand, in gold or silver coin, shall be receivable at the treasury of this State, and by all tax-collectors and other public officers, in all payments for taxes and other moneys due to the State.'
The purposes for which the bank was organized, and the relations created between it and the State by its charter, are thus stated in Furman v. Nichol, 8 Wall. 44.
'The State of Tennessee, through its legislature, in 1838, thought proper to create a bank 'in its name and for its benefit.' It was essentially a State institution. The State owned the capital and received the profits, appointed its directors, and pledged its faith and credit for its support.'
It was because the State, though directors of its appointment, had the absolute control of the operations of the bank, owning its capital and enjoying its profits, that it made the agreement contained in the twelfth section of the charter. That agreement unquestionably constituted, as between the State and the holders of the bank's notes, a contract, the obligation of which the State was forbidden by the Federal Constitution to impair. Such was the decision of this court in Furman v. Nichol (supra), as to all bills issued by the bank prior to May 6, 1861. In that case, while expressly waiving any decision of the question as to the liability of the State for bills issued between May 6, 1861, and the date of the restoration of its lawful government, we held that the guaranty contained in the twelfth section of the charter 'was, until withdrawn by the State, a contract between the State and every note-holder of the bank,' obliging the State to receive for taxes any notes issued prior to May 6, 1861. But it is to be observed that the State which made this contract with note-holders was the State which was represented by the lawful government thereof. The notes which it agreed to receive for taxes were necessarily only those issued by the authority, or under the orders, of directors appointed by that lawful government. It was not an agreement to receive notes issued under the orders of usurping directors, or by directors appointed by, or exercising their functions under, any revolutionary government, which, by violence, should displace the lawful government of the State. Upon the temporary overthrow of the latter government, on the 6th of May, 1861, all the State institutions, including the Bank of Tennessee, were seized by the usurping government, and were thereafter, and until the legal authorities resumed, or were reinstated in the exercise of, their functions, controlled and managed by the usurping government for its own benefit and maintenance. The notes in question were issued under the orders of directors who repudiated all responsibility to the government which made the contract embodied in the twelfth section of the bank charter. If the issue of such notes imposed obligations upon any State government, it was upon the insurgent State government, whose official agents had directed them to be issued. In the very nature of things, and so long as the duty exists to discourage revolution, by maintaining lawfully constituted authority, no obligation could arise against the State government which had been wrongfully displaced, and whose right to control and manage the bank, by directors of its appointment, was not only denied and repudiated, but was forcibly, and for some time successfully, resisted. And this view does no injustice to citizens of Tennessee who received the notes of the bank in the ordinary course of business. They were aware of the fact that these notes were issued under revolutionary authority. They did not take them upon the credit of the lawful government, or upon any faith they had in its restoration. They took them upon the credit of the usurping State government, under whose authority and for whose benefit they were issued, and which government, at that time, was regarded by the mass of the people of Tennessee as established upon a firm and enduring foundation.