Statement of the case. lic taxes and other dues to the State, besides the constitutional and lawful currency of the United States, "1st. Such bank notes as are current at par in this State. "2d. Warrants issued by the comptroller. "3d. Certificates from the county court for killing a wild-cat." "Sect. 41. All public and general acts passed prior to the present session of the General Assembly, and all public and special acts, the subject whereof are revised in this code, are hereby repealed." "Sect. 42. Local, special, and private acts, and acts of incorporation heretofore passed, are not repealed, unless it be herein so expressed." From the character of its organization, the newly incorporated bank was capable of being placed much under the control of the governor and legislature of the State; and at the outbreak of the late rebellion in Tennessee, May 6th, 1861, it passed into the control of the rebel agents, who then managed to possess themselves of the State government. They issued its notes to an indefinite amount, advanced immense sums to the rebel State authorities; and when the Federal army were approaching with superior power, left the bank, carrying with them its coin, and all its assets, except real estate and some uncollected debts. The bank was thus ruined, and its bills became largely depreciated. In February, 1865, the rebel powers being now driven away, the people of the State reorganized the State government, and declared, in their amended constitution, that “all notes of the Bank of Tennessee, or any of its branches, issued on or after the 6th day of May, 1861," were null and void; and an act of the legislature in the following June, repealed by express terms, the already quoted twelfth section of the chartering statute of 1838, which made the notes of the bank receivable in payment of taxes. Finally came an act of February 16, 1866, by which the directors were directed to take in payment of debts due to it its notes, “which were issued prior to the 6th day of May, 1861, and studiously to refuse and exclude all issues or reissues after that date; also all issues signed by G. C. Torbett; also, all reissues made after the 6th day of May, 1861, as utterly void." Statement of the case. In this state of things, with these statutes, relative to the subject of the sort of money in which taxes, &c., might or might not be paid upon the statute-book-and with other statutes of the State in force, which made the privilege of merchandising taxable, and enacted that any one who wished to engage in that calling must obtain a license from the clerk of the county court where he proposed to carry on the business, and give bond that he would pay a certain percentage on the invoice cost of all goods brought into his mercantile establishment for sale during the year-one Francis Furman, of Nashville, who had obtained, in August, 1865, from the county clerk, a license as a wholesale merchant for the ensuing year, and now purposed forming a partnership before the expiration of his license (a purpose which made it necessary for him to discharge his obligation to the State for the business of the store up to that time), appeared, on the 3d of August, 1866, before the clerk of his county, with Green, his proposed partner, and tendered to the clerk the amount due the State for taxes, in the notes and issues of the Bank of Tennessee, issued prior to the 6th of May, 1861, and tendered also the bond as required by law, and demanded that a license be issued to them as wholesale merchants. But the clerk declined to comply with this request, because these notes were depreciated, and informed the parties that he would not issue the license, unless the taxes were paid in par funds. Thereupon Furman & Green applied to one of the circuit courts of the State for a mandamus to compel the clerk to receive their bank notes. Their petition, after setting forth the charter of the bank, and particularly the provisions of the twelfth section, the ownership of the notes, and that they were issued in conformity with the section just named; and issued "prior to the 6th day of May, 1861," alleged the tender to the defendant, his official character, and his refusal to receive them, "because the same were not at par," and issue the license; adding that the "said charter was a contract made with the people of the State, and every person into whose possession the Statement of the case. said notes and issues of the said bank might come, that the same should be received by all collectors of taxes, and in payment of all dues to the State of Tennessee, and it is not in the power of the legislature of the said State of Tennessee, to impair or annul the validity or binding force of said contract." The petition referred to the act of February, 1866, by which the directors were directed to take in payment of debts due to it notes issued prior to May 6th, 1861, and to exclude reissues made after that day, and it made the act part of it, so far as the act might be in conflict with their rights. But the petition did not state at what time the notes had come into the hands of the petitioners. The county clerk demurred: 1. Because the petition did not show a contract between the State of Tennessee and petitioners, or either of them, that the notes in question should be received in payment of State taxes; and, 2. Because it failed to show ownership of the notes before the passage of the Tennessee code, 1858, with its section 603; or before the repealing act of 1865. The local Circuit Court thought the demurrer bad and awarded the mandamus, but the Supreme Court of the State on appeal considered it good, and reversed that decree; the judgment having been in these words, and without any assignment of reasons. "The court being of opinion that there is error in the judg ment of the court below, in overruling the demurrer in this cause, doth order and adjudge that the said judgment be reversed, and the demurrer sustained, and the petition dismissed." The case was now brought here on appeal, under the 25th section of the Judiciary Act, which gives this court jurisdiction to review decrees in the highest court of the State, "where is drawn in question the validity of the statute of, or an authority exercised under any State, on the ground of its being repugnant to the constitution, treaties, or laws of the United States, and the decision is in favor of such their validity." Argument for the tax-payers. Two questions were here argued : 1. Whether under the 25th section just quoted, jurisdiction existed in this court? 2. Whether the act of incorporation amounted to a contract with these petitioners; their petition not showing that they had themselves received the notes prior to either the statute of 1858, making the code having section 603; or the act of 1866, repealing the 12th section of the original charter. Messrs. B. R. Curtis, R. L. Caruthers, and G. Hoadley, for the appellants: 1. As to jurisdiction. That it exists, is plain, since the decision in The Bridge Proprietors v. Hoboken Company,* a case decided so late as 1863. There the court says: "The true and rational rule is, that the court must be able to see clearly, from the whole record, that a certain provision of the constitution was relied on by the party who brings the writ of error, and that the right thus claimed by him was denied." Now here, if any one will observe the character of the petition and of the demurrer, it will be as obvious without argument as with it, that the question raised and decided was, by necessary intendment, none other than the constitutionality of the act of repeal, as against the plaintiffs, in violation of the contract with the State to receive the notes for taxes, and the decision in favor of its validity. 2 On merits. The 12th section of the act of incorporation of the Bank of Tennessee was, until repealed, a contract between the State and every bill-holder of the bank, obliging the former to receive the bills for taxes. The contract which we assert arises out of a law. Whatever negotiability and virtue the legislature intended the bills should have, that they do have. Now, what did the legislature intend? The bills were to be receivable by all tax collectors of the State for all moneys due it. Receivable from whom? From the bearer, of course. The design was to aid the bank substantially, by inspiring the greater confidence in its bills; and this confidence could be inspired in no way so well as by Argument for the tax-payers. attaching to the bills a special virtue, the quality, to wit, that they should be receivable in payment of all debts due the State; so receivable generally and from every one. We have at this time a currency of government notes known as "greenbacks." The act of Congress authorizing them enacts that they shall be a legal tender for all debts, public and private (except for two named), and be receivable in payment of all loans made to the United States. And, as we know at this time, this provision of the statute is printed on the back of the notes. No one would doubt that the contract of the Federal government, in regard to these issues, attaches to the bill. But why does it so attach? Not in virtue of the mechanical fact of its being printed on the note, but in virtue of the statute authorizing the notes, and giving to them the advantages which it does. The same thing exists here. If the 12th section of the charter of the Bank of Tennessee had been printed on all notes of the bank, it would be conceded that the privilege followed the bills and attached to them in the hands of every holder. But the printing of the law on the back of the bill is nothing. It is the law itself, its having been enacted and enrolled in the Capitol, which gives the distinctive virtue. The section 603 of the code did not repeal the twelfth section of the charter. It could repeal it only by a feeble implication. Implied appeals are not favored. Courts, indeed, would be slow to pronounce in favor of an implied repeal of a section, which gave value and credit to the issues of a bank, that was, perhaps, daily increasing in circulation, and that had been established with the funds, and for the benefit of the State itself, to supply a circulating medium to pass from hand to hand of the people as money. If section 603 of the code repealed impliedly section 12 of the charter, of what use was the express repeal of the same section by the act of 1865? The case is then decided by Woodruff v. Trapnall,* as well as by numerous later cases.† * 10 Howard, 206. Curran v. State of Arkansas et al., 15 Howard, 304, Hawthorne v. Calef, |