
    The Graniteville Manufacturing Company vs. Benjamin Roper, Tax Collector.
    
      Constitutional Law — Taxes—Bills of the Bank of the State of South Carolina.
    
    The Charter “of the Bank of the State of South Carolina,” in its sixteenth section, provides that “the hills or notes of said Corporation drginally made payable, or which shall have become'payable on demand, in gold or silver coin, shall be receivable at the Treasury of the State, cither at Charleston or Columbia, and by all lax collectors and other public officers, in all payments for taxes or other moneys due the State.” Subsequent Acts, by directing that the taxes shall be collected only in certain kinds of money therein enumerated, not including the bills of the Bank of the State, impliedly prohibit the receipt of these latter bills for taxes. Such subsequent prohibitory Acts do not impair the obligation of any contract made by the State ■with the holders of the bills or others, and are not contrary to any provision of the Constitution of the United States.
    By the terms of the Charter, the State bound itself to receive “the bills or notes” only so long as they were convertible on demand into “gold or silver coin,” and did not bind itself to receive them after they had ceased to be so convertible, and had depreciated so much as to be no longer current.
    BEFORE GLOVER, J„ AT EDGEFIELB, FALL TERM, 1867.
    It is deemed proper to report the proceedings in this case in full. They are as follows:
    In the Common Pleas and General Sessions.
    
      The State of South Carolina, Edgefield District.
    
    Be it remembered, that on the twenty-third day of October, A. D., 1867, before the Honorable Thomas W. Glover, one of the Judges of the Court of Common Pleas and General Sessions of the State of South Carolina, sitting at Chambers, comes the Graniteville Manufacturing Com-' panj, a body corporate under and by virtue of the Act of the General Assembly of the State of South Carolina, and gives the Court here to understand and be informed that the said Company is indebted to the State of South Carolina in the sum of six thousand three hundred and ninety-seven dollars and eighty-one cents for taxes due the State, upon a return duly made, and that Bejamin Roper is tax collector for the District of Edgefield, within which district the said Graniteville Manufacturing Company resides and does business, and that payment of said taxes has been tendered by the said Graniteville Manufacturing Company, to Benjamin Roper, Esquire, the tax collector, in bills of “the President and Directors of the Bank of the State of South Carolina,” bearing date and issued by said corporation prior to the twentieth day of December, in the year of our Lord one thousand eight hundred and sixty, which said payment, in manner aforesaid, hath been refused by the said Benjamin Roper, tax collector as aforesaid; and that said tender was made under and by virtue of the sixteenth section of the Act of the General Assembly of the State of South Carolina, incorporating said President and Directors of the Bank of the State of South Carolina, which provides “that the bills or notes of 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, either at Charleston or Columbia, and by all tax collectors and other public officers, in all payments for taxes or other moneys due the State.”
    Wherefore the said Graniteville Manufacturing Company pray, that a rule may issue, directed to the said Benjamin Roper, Esquire, tax collector, commanding him to show cause before your Honor, at Orangeburg Court House, on the twelfth day of November, one thousand eight hundred and sixty-seven, why a writ of mandamus should not issue, compelling him to receive the said bills of the President and Directors of the Bank of the State of .South Carolina, in payment of the taxes due to the State by the said Graniteville Manufacturing Company.
    Porter & Conner,
    
      Att'ys for Graniteville Manufacturing Go.
    
    The GRANiTEyiLLE Manufacturing Company vs. Benjamin Roper, Tax Collector of the State of "South Carolina for the District of Edgefield.-
    It' appearing to my satisfaction, from the affidavits and papers filed with this application, that the Graniteville Manufacturing Company is indebted to the State of South Carolina in the sum of six thousand three hundred and ninety-seven dollars and eighty-one cents ($6,397.81) for taxes due by it to the State, upon a return of taxes duly made, and that Benjamin Roper is the tax collector for the District of Edgefield, within which district the said Granite-ville Manufacturing Company resides and does business, and that payment of said taxes has been tendered by the said Graniteville Manufacturing Company to Benjamin Roper, Esquire, the tax collector, in bills of “the President and Directors of the Bank of the State of South Carolina,” bearing date and issued by said corporation prior to the twentieth day of December, in the yeár of our Lord one thousand eight hundred and sixty, which said payment, in manner aforesaid, hath been refused by the said Benjamin Roper, tax collector as aforesaid.
    And it further appearing, that the said tender hath been made under and by virtue of the sixteenth section of the Act of the General Assembly of the State of South Carolina, incorporating said President and Directors of the Bank of the State of South Carolina, which provides “that the bills or notes of 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, either at Charleston or Columbia, and by all tax collectors and other public officers, in all payments for taxes or other moneys due to the State.”
    Now it is ordered, that the said Benjamin .Roper, tax collector of the State of South Carolina for Edgefield District, do show cause before me at the Court House .for Orangeburg District, on the twelfth day of November next, why a writ of mandamus should not issue, commanding and directing him to receive payment of the taxes due as aforesaid, by the said Graniteville Manufacturing Company, in bills of “ the President and Directors of the Bank of the State of South Carolina,” according to the tender thereof made.
    It is further ordered, that notice of this rule shall be served on the said Benjamin Roper, at least ten days before the period at which he is required to appear and show cause.
    Thomas W. Glover. •
    
      October 28, ,1867.
    Service of within rule acknowledged November 1st, 1867.
    I. W. HAYNE, Attorney-General.
    
    The GraNiteville Manufacturing Company vs. Benjamin Roper, Tax Collector of the State of South Carolina for the District of Edgefield.
    Benjamin Roper, Tax Collector of the District and State aforesaid, makes return to the rule to show cause why a writ of mandamus should not issue, commanding and directing birn to receive payment of tbe taxes due by the Graniteville Manufacturing Company, in bills of tbe President and Directors of the Bank of the State of South Carolina, according to the tender thereof made, dated 23d October, 1867, as follows:
    That he refused to receive said bills in obedience to the requirement'of the fifth section of the Act of 1866, which prescribes "that the taxes herein levied shall be -paid only in gold and silver coin, United States treasury notes, or notes of national banks, or the bills receivable of this State, and also pay certificates of jurors and constables for attendance on the Courts.” (18 Statutes, 398.)
    I. W. Havne, Attorney-General.
    
    
      November 12, 1867.
    Hearing the return to the rule, it is ordered that the rule be discharged, and that the respondent go without day.
    Thomas W. Glover.
    GROUNDS of Appeal.
    • The Graniteville Manufacturing Company appeal from the decision of his Honor, the presiding Judge, on the ground:
    1. That under the sixteenth section of the Act of the Legislature, incorporating the President and Directors of the Bank of the State of South Carolina, the bills of said bank are "receivable by all tax collectors” “in all payment for taxes ” due the State.
    2. That the Act of the Legislature of the State, ratified 21st December, 1866, impairs the obligation of the contract made between the State and the bill holders, in violation of tlie Constitution of the State and of the United States.
    PORTER & CONNER,
    
      Appellants’ Attorneys.
    
    By order of the Court of Appeals, the case was referred to this Court, where it was now heard.
    
      Porter and Conner, for the motion
    contended :
    1. That under the 16th sec. of the Act of the Legislature incorporating the Bank of the State, the bills of said bank are receivable by all tax collectors in all payments for taxes. (16th sec. of Charter, 8 Stat. 30; 16th sec. of Charter of State Bank, 1802, 8 Stat. 13 ; 12th sec. of Charter of Union Bank, 1810, 8 Stat. 17; 4th sec. of Charter of Planters’ and Mechanics’ Bank, 1811, 8 Stat. 23 ; 19th sec. of Charter of Commercial Bank of Columbia, 8 Stat. 63 ; Act of 1852, sec. 6, rechartering Union and Planters’ and Mechanics’ Bank, 12 Stat. 212; Act of 1853, State Bank, 12 Stat. 244; Act of 1813, 5 Stat. 705 ; Act of 1818, 6 Stat. 107; Act of 1822, 6 Stat. 195; Act of 1839, 11 Stat. 1; Act of 1843, 11 Stat. 246; Act of 1857, 12 Stat. 596 ; Act of 1861, sec. 12, 12 Stat. 840; Act of 1865, 13 Stat. 265; Act of 1866, 13 Stat. 398.)
    2. That the Act of 1866 impairs the obligation of the contract. (Slurges vs. Orowninshield, 4 Wheaton, 197 ; 2 Kent’s Commentaries, Sec. 39; Green vs. Biddle, 8 Wheaton, 84; Bronson vs. Kinsie, 1 How. 811; Planters’ Banh vs. Sharp, 6 How. 327; Woodruff vs. Trapnall, 10 How. 190, 218; Galif vs. Hawthorne, 2 Wallace, 21; Mathis vs. McGee, 4 Wallace, 143; Van Hoffman vs. Gity of Quincy, 4 Wallace, 535 and 541; Garran vs. Slate Arkansas, 15 How. 525.)
    
      Hayne, Attorney General, contra.
    1st. Frapnellv s. Woodruff, 10 Howard, 206, (the decision which has made this case,) in itself, would be of doubtful authority. '1 he Court was divided — -five to four, and the dissenting opinion, far the most satisfactory. Its subsequent recognition, however, on several occasions by the Supreme Court of the United States, would perhaps, on a constitutional question, conclude this Court. Fortunately, it does not affect this case.
    2d. This case is really one of statutory construction, involving no constitutional question whatever. Section 16th of the Act of 1812, chartering the Bank of the State of South Carolina, reads as follows: “ 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, either at Charleston or Columbia, and by all tax collectors or other public officers, in all payments for taxes or other moneys due to the State.”
    3d. This means “ originally made payable on demand, or afterwards become payable on demand, in gold or silver coin, ” &c., and by “payable," as I shall show, the Legislature meant, “convertible into," “redeemable in," and refers not to the form of the notes or bills, but to the fact of, convertibility. This will appear from a comparison of statutes anterior, contemporaneous and subsequent.
    The language is first used in the charter of the State Bank in 1802; next in that of the Union Bank in 1810; then in that of the Planters’ and Mechanics’ Bank, in 1811. In 1812, the Bank of the State was put on the same footing by precisely the same words.
    
    The same provision was continued in the renewal charters of the State Bank, and Bank of South Carolina, in 1822. Cmitted in charter of Bank of Hamburg, same year. Sec. 13 says: “that it shall at all times pay specie for their paper when presented.” Omitted also in charter of Bank of Oheraw, 1824. Sec. 12 says: “the said corporation shall be bound at all times, to pay specie for their paper, if demanded.” The renewal charter of the Union Bank, and Planters’ and Mechanics’ Bank, in 1830, continues the original provision. The charter of the Commercial Bank of Columbia, S. 0., in 1831, adds to the language hitherto used, the words, “so long as the said bank shall pay gold and silver current coin for their notes,” &c. The renewal charter of the Bank of South Carolina, in 1832, continues the original provision. So, also, does the renewal charter of the State Bank, in 1833. But in this year, (1833,) “the Merchants’ Bank of South Carolina, at Oheraw,” is chartered, and the same words used in the charter of the Commercial Bank, in 1831, are added, viz.: “ so long as said bank shall pay gold and silver current coin for their notes.” And this language is followed in the charter of the Bank of Charleston, in 1834, in the charters of the Bank of Camden, and of the Bank of Hamburg, in 1835, and in the charter of the Bank of Georgetown, in 1836.
    Thus we see that, from 1802 until 1831, the identical provision here relied on was contained in all bank charters granted by the State, except the charters of the Banks of Hamburg and Oheraw. 1881, the Commercial Bank is chartered, and here, for the first time, the words “so long as the said bank shall pay gold and silver current coin for their notes,” are added. In 1832 and 1833, the charters of the Bank of South Carolina, and the State Bank, are renewed, and the language first used is retained unaltered. But in 1833, “the Merchants’ Bank of South Carolina, at Oheraw,” is chartered, and here the language used in 1831, in the charter of the Commercial Bank, is again adopted, and is followed in the charters granted in 1834, ’35, ’36. The Legislature intended to confer the same privileges upon all these banks; no discrimination was meant, and the language used, it was supposed, would not be so construed.
    ■ 4th. So much for bank charters. In the “Acts to raise supplies,” touching on the same subject, it will be found that, in enumerating the objects of taxation, in 1787 it was enacted that taxes shall be paid, “ three-quarters in special indents, specie, or the paper medium of this State,” and in 1788 it is enacted that the taxes shall “ be paid in special indents, specie, or the paper medium of this State.” In 1789, special indents areomitted, and paper medium or specie alone mentioned. In this part of the Tax Act such continues to be the language until 1814, when, in this portion of the Act for that year, the language is: “to be paid in paper' medium, the notes of the banks in the State of South Carolina, or specie.” In the Tax Act of 1794; besides the language above referred to, as used in the Acts from 1787 until 1814, this is the provision, in a distinct section, “ that nothing shall be received by the treasurers in payment of the taxes hereinbefore directed to be raised, but gold and silver coin made current in this State, and the paper medium issued by authority of the Legislature, or bank paper, redeemable in the first instance with gold and silver at the banks now established in this Slate, or certificates issued for the pay of the members of the Legislature for their attendance thereon.” There is a similar provision in a separate section of each Tax Act afterwards. In 1795, the bills of the ‘Bank of the United States and the Branch thereof in Charleston, and of the Bank of South Carolina, are enumerated, but all are required to be redeemable in gold or silver coin. This enumeration continues until 1802, when the Stale Bank is added. In 1810, the same enumeration, with the addition of the Union Bank. In 1811, Planters' and Mechanics' Bank is added. In 1812, the year the Bank of the State, was chartered, this specie clause in the Tax Act was inserted, as it bad been in 1802 when tbe State Bank was chartered, in 1813 when tbe Union Bank was chartered, and in 1811 when tbe Planters’ and Mechanics’ Bank was chartered. In 1813, besides the old enumeration of banks — the United States Bank being omitted — the Bank of the State is added for -the first time. The language in 1813 and 1814 being as follows, viz.: “ That the tax collectors throughout this State shall receive no payment of taxes but in gold or silver, coin, made current in this State, the paper medium issued under the authority of the Legislature, bank paper redeemable in the first instance in gold and silver, at the Bank of South •Carolina, the State Bank, Union Bank, Planters’ and Mechanics’ Bank, the Bank of the State of South Carolina, or certificates,” &c.
    In 1815, the Tax Act contains no distinct section confining collection, but in enacting the tax, declares that it shall “ be paid in paper medium, the notes of the banks in the State of South Carolina, or specie.” In 1816, the language is, “to be paid in specie, paper medium, or in tbe notes of the incorporated banks of the State of South Carolina,” and in 1817, ’18, ’19, ’20 and ’21, language same as in 1816 ; in 1822, ’23, ’24 and ’25, the language is “ to be paid in specie, paper medium, or notes of the Banks of the State of South Carolina.” In 1826, the language is “ to be paid in specie, paper medium, or the notes of the specie paying banks of this State.” This language is repeated every year, until 1837. In the Tax Act of this year, 1837, the qualification, “specie paying” is omitted, and the following substituted: “to be paid in specie, paper medium, or the bills of tbe banks of this State ; and if any bank of this State shall, in the opinion of the Comptroller-General, become unsafe, so that its bills ought not to be received at the treasurjq it shall be his duty to order their reception to be discontinued by the tax collectors.” In 1838, the next year, tbe qualification oí “specie paying" is restored, and continued to be repeated until 1843, when the Act to raise supplies is silent on this subject, but in lieu thereof we have the permanent provision of an “ Act prescribing the duties of certain officers, in the collection of supplies and for other purposes,” which directs “that all taxes for the use and service of this State shall be paid in specie, paper medium, or tbe notes of the specie paying banks of this State.” This Act being general, the provision is omitted in the annual Tax Act, until 1857, when in section eight of the Act to raise supplies, it is enacted “ that the Comptroller-General shall direct the tax collectors and treasurers to receive the taxes and other dues of the State, only in notes of the hanh of the State, or of specie paying banks of this State, or in coin of the United States.” This is .the first instance of discrimination, in this respect in favor of the bank of the State. In 1858 and 1859, nothing being mentioned in the Tax Act, the general provision of the Act of 1843 came again into force. In 1860 and 1861, a provision, purporting to be a provision of the Act of 1823, was enacted, viz.: “ That the treasurers of this State be instructed to receive in payment of taxes the bills and notes of all the banks of this State, unless, in the opinion of the Comptroller-General, it shall become unsafe to receive the bills or notes of one or more of such banks, in which case he shall be authorized to issue instructions to the tax collectors to refuse the notes of such bank or banks.” I find no such provision in the Act of 1823, but a similar provision is found in the Act of 1837. In December, 1861, the Act to raise supplies is silent on the subject, but the “Act to provide for the payment by the State of the war tax of the Confederate States,' and for the collection of the same from the tax payers of this State,” enacts that “ the said taxes shall be payable in the medium provided by law for the payment of the State taxes,” meaning the provision of the year previous. In 1862, “ Confederate notes, and other current funds,” were made receivable. This continued to 1865. The Act of that year confines collections to specie, legal tender U. S. Treasury notes, and bills receivable. The Supply Act of 1866, the present law, declares “ that the taxes herein levied shall be paid only in gold and silver coin, United States treasury notes, or notes declared to be a legal tender by the government of the United States, or notes of national banks, or the bills receivable of this State.”
    This review of the various Acts touching this subject, from 1787 to 1867, establishes the following points:—
    1. That whatever the meaning of the 16th section of the charter of the bank of the State, it proposed no discrimination in favor of said bank. All banks chartered before, and most chartered since, contain the same provision.
    2. That if such provision constitutes a “ contract ” between the State and the bill-holders, the bill-holders of all the other banks up to 1853 could claim the benefit of this contract, as well as those of the bank of the State.
    3. That if such a contract binds the State to receive bills not redeemable in gold or silver coin, the very Legislature which entered into the “ contract ” passed at the same session, an Act violating the contract, and therefore unconstitutional. For in 1802, 1810 and 1811, as well as in 1812, the Legislature declared in a charter, that bank bills should be re,-ceivable whether, as is now contended, redeemable or not, and, at the same sessions, prohibited their reception unless they were redeemable.
    4. That the whole course of legislation shows, that if the Legislature, ever since 1802, has been bound by contract to receive certain bills, however worthless, that body was wholly ignorant of any such obligation. For it is manifest that for sixty-five years the Legislature has in fact exercised an absolute, unquestioned discretion, as if free from all restriction.
    
    
      5. From all this the inference is irresistible, that the Legislature did not mean by the charters of 1802, 1810, ,1811 and 1812, or subsequently, to bind itself to take irredeemable paper, or bank notes of any kind, any longer than they were actually, in point of fact, “payable in gold or silver current coin.”
    6. The language of cotemporaneous Acts must be construed, if possible, so as to avoid conflict of legislation. Here you have but to refer the word “payable ” to the fact of convertibility, rather than the form of the note, and all conflict ceases.
    7. The sense in which this provision was understood, is illustrated by the additional words introduced into the charter of the Commercial Bank, and some others, then these additional words omitted in the re-charter of the Union Bank, and others, and again resumed in charters of Bank of Charleston and others. The two modes of expressing the same thing, were used indiscriminately. There is nothing whatever in the words of the Act, or the circumstances surrounding, to lead to the conclusion that the words added in the charter of the Commercial Bank were intended to introduce a new restriction, or that the re-charters of the Bank of South Carolina, the State Bank, the Union Bank and the Planters’ and Mechanics’ Bank were intended to continue to them a privilege denied to others. Nor is there anything in the further re-charter of the above banks, in 1853, to lead to the conclusion that the additional words (then first introduced in regard to them) were intended to talce away any privilege or exemption hitherto possessed. The additional ■words were intended merely to express the more clearly what had been always meant; to make plainer the construction always acted on. As to the construction of the various Tax Acts, it will scarcely be contended that “ bank paper redeemable in the first instance, in gold or silver,” means to refer to the form of the bill or note, and not to the fact of being redeemable. This language was first used when there was no bank charter which could be considered as restricting the State, and was manifestly intended as á substantial guard on the treasury. . In 1802, and afterwards, when charters had been granted, the language was still continued, and, just as obviously, was intended to protect the treasury against the receipt of any paper not at the time convertible.
    By redeemable “ in the first instance ” I understand redeemable at once, the bank being primarily liable, and not upon any condition or contingency, or after application and failure elsewhere. It adds a further safeguard.
    I have not discussed the effect of the State being the sole stockholder, because the identical words of the sixteenth section having been used before and after in charters where no such relation existed, the construction must be the same in all.
    Nor do I propose to discuss the nature and extent of the liabilities of the State in behalf of the bank, growing out of, or imposed by, any other or further legislation, independent of the sixteenth section.
    I confine myself to the case made by the “Suggestion,” which alone comes properly under consideration under the Appeal.
    In conclusion, I call attention particularly to the case of The State ex relatione B. F. Sunt vs. Pinckney, tax collector, 8 Strobhart, 400. Every word of the report bears on the present case. The question submitted was an application for a mandamus to compel a tax collector to receive in payment special indents. The Court, in that ease, uses the following language, viz.: “ It is not material to the decision of this motion that the validity and justice of the relator’s claim should be investigated, by reference to the terms of credit on which special.indents were received by the public creditors, or the provision made for the payment of them by the several Acts under which they were issued, or by the application of the presumptions of law and fact, against the relator’s right, arising from the great lapse of time. Even if the State were unquestionably liable to pay these indents, this Court has no jurisdiction to'enforce the payment. If in any case this Court can interfere, by mandamus, in behalf of the creditor of the State, to compel payment of his demand, it can only be when the Legislature has directed an officer, in possession of funds for that purpose, to discharge a debt, and, in violation of his duty, he refuses to do so.
    “Nor is it necessary to decide whether, under the Act of 1788, the receipt of these indents, in payment of taxes, was not limited to the taxes of that year, and of those mentioned in the Act. If the State should issue indents, or other obligations, and charge the .annual taxes with the payment of them, and neglect or refuse to authorize the tax collector to receive such obligations in payment, it would be a public delinquency which could not be redressed by a mandamus to the tax collector to discharge the obligations of the State, by receiving them.” . 8 Strobhart, 402, 403. Upon appeal, “ the whole Court concurred in the opinion of the Circuit Judge, for the reasons assigned in his report.”
   The opinion of the Court was delivered by

GrLOVER, J.

As a question of constitutional law arises in this case, it has been referred for determination to this Court.

In .answer to a rule served upon the respondent, as tax collector of Edgefield. District, to show cause why a writ of mandamus should not issue, compelling him to receive the bills of the President and Directors of the Bank of the State of South Carolina in payment of the taxes due to the State by the relator, he made a return, justifying his refusal on the ground, that the fifth section of an Act passed December, 1866, (13 Stat. 395,) “to raise supplies for tbe year commencing in October, 1866,” directs that “the taxes herein levied shall be paid only in gold and silver coin, United States treasury notes or notes of national banks, or the bills receivable of this State, and also pay certificates of jurors and constables for attendance on the Courts.” Hearing this return, the Circuit Judge who granted the rule ordered the same to be discharged.

From this order the relator appeals on the following grounds:

1. That, under the sixteenth section of the Act of the Legislature, incorporating the President and Directors of the Bank of the State of South Carolina, the bills of said bank are receivable by ail tax collectors in all payments for taxes due the State.
2. That the Act of the Legislature of the State, ratified December 21, 1866, impairs the obligation of the contract made between the State and the bill holders, in violation of the Constitution of the State and of the United States.

If the decision of the points raised by the grounds of appeal depended on the construction of the fifth section of the Act of 1866 only, or on the several Acts to raise supplies, the answer of the respondent would be conclusive. The public expenses of each year are a charge against the annual income; and as the Act of 1866 and all Acts to raise supplies are annual, and their operation expires with the year, the tax payer and collector are equally bound by their provisions. But the relator relies on the sixteenth section of an Act passed in 1812 (8 Stat. 24) “ to establish a bank on behalf and for the benefit of the State.” This bank was established, as is recited in the preamble, “ on the funds .of the State,” and by the terms of the Act the faith of the State is pledged for its support. The sixteenth section provides “that the bills or notes of 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, either at Charleston or Columbia, and by all tax collectors and other public officers, in all payments of taxes or other moneys due the State.” The intention of, the Legislature was to increase and secure ■public confidence in, and to give credit to the bills of the bank, and thereby extend their circulation. The bills were received, and currency was given to them under this guarantee of the State, that in payment of taxes, &c., they should be received at the treasury. The relator applies for a mandamus, on the ground that by a refusal to receive the bills the State has impaired the obligation which bound her to perform her contract. Conceding that the sixteenth section of the Act of 1812 creates a valid contract between the State and the bill holders, we must examine the terms employed and the conditions stipulated, to ascertain the .nature of the contract, and the obligation imposed by it. The undertaking of the State was not, in the language of the first ground of appeal, to receive the bills of the bank in all payments for taxes, &c., but such as are “ originally made payable, or which shall have become payable on demand, in gold or silver coin,” &c. These words were first .used in 1802, in an Act to charter the State Bank, (8 Stat. ■ 18;) and afterwards in 3810 and 1811, the same language is employed in the charters of the Union and Mechanics’ Banks, (8 Stat. 17 and 23,) and in several other bank charters subsequently granted/ and in Acts to raise supplies annually passed.

The construction of the words originally made payable, or which shall have become payable, on demand,” is aided by the additional words “ in gold or silver coin.” If the purpose of tbe Legislature was merely to indicate the form of tbe bills, without regard to their availability in the payment of the public creditors, there was no necessity to add that they should be payable “ in gold or silver coin.” The intention could not have been to receive the bills, not only of the Bank of the State, but of private banks, without reference to their convertibility. These words were inserted to guard against the receipt of worthless paper; and it is not denied that those tendered by the relator are of no appreciable value, and constituted no part of the currency of the country. An authority to receive bank bills in payment of the taxes, regardless of their value as currency, might, in times of great pecuniary embarrassment, deprive the State of the means necessary to carry on the Government. We apprehend that a fair construction of the sixteenth section of the Act which constitutes the contract between the State and the bill holders requires that the latter must tender in payment of his taxes only such bills as are payable, or shall become payable in gold or silver coin, on demand, and not such as possess neither a specie basis nor public confidence to impart value or give them currency ; and before the relator complains of the breach of the contract bj the State, he must show a performance by himself.

The decision in the case of Woodruff vs. Trapnall, (10 How. 190,) referred to by the counsel for appellant, depended on the construction of the twenty-eighth section of an Act of the Legislature of Arkansas to incorporate the Bank of the State of Arkansas, which provided “ that the bills and notes of said institution shall be receivable in all payments of debts due to the State of Arkansas.” This language differs widely from that used in the sixteenth section of the Act to establish a bank on behalf and for the benefit of the State. No restriction or limitation is imposed on the authority conferred to receive the bills; no provision is made guarding against the depreciation of them, or the insolvency of the bank. A tender by (the public debtor of bills of the Bank of Arkansas, without regard to their convertibility or currency, was a compliance with the express terms of the contract, and a refusal by the State to receive them, impaired the obligation binding her to the performance of it.

Admitting the authority of the case of Woodruff vs. Trapnall, and of other cases, affirming the same doct2’ine, it cannot control the decision of the principal case which presents for adjudication the construction of a different contract. But if there be error in our construction of the contract, and that the true intent was to authorize tax-collectors to receive the bills of the bank, whether they. possessed any value as currency or not, the relator is not entitled to a mandamus according to his own construction. The Act of 1843, (11 Stat. 246,) directing that all taxes for the use and service of the State, shall be paid in specie, paper medium, or the notes of the specie-paying banks of the State, was a virtual repeal of the sixteenth section of the Act of 1812. And although the Act of 1843 may be within the constitutional inhibition prohibiting a State from impairing the obligation of a contract, the prohibition can apply only to bills in circulation before the passage of the Act, to which time the guarantee of the State extended. If, therefore, a tender is made of bills issued and in circulation after 1843, it would not be a compliance with the conditions prescribed, to pay in “ specie, paper medium, or the notes of the specie-paying banks of the State.” This point was made in Woodruff vs. Trapnall; and the Od'urt held, that “ the notes issued by the bank after the repeal were not within the contract, and might be refused by .(the State.”

After due consideration of the points made, we are of opinion that the order, discharging the rale for a mandamus, was correct; and the motion is discharged.

DuNKIn, 0. J., Wardlaw, A. J., Mukro, J., Carroll, C., INGLIS, A. J, Moses, J., Dawkins, J., and LesesNE, 0,, concurred.

Motion dismissed  