
    Wm. Johnson et al. v. Newton Hacker, Att.-Gen’l, et als.
    
    1. Beeease of Sureties. By giving time to Collector. Special act.
    
    A special act of the Legislature, giving time to a particular tax collector to collect and account for the taxes, operates to release his sureties.
    2. Same. Jurisdiction in equity.
    
    The exemption of the State from suit not being insisted on in this case, it was held that, the objection, that the proper remedy was at law, was not well taken.
    FROM GREENE.
    Bill in the Chancery Court at Greeneville, to enjoin N. J. Hacker, District Attorney, and E. R. Pennebaker,- Comptroller, from prosecuting a motion in the Circuit Court against complainants as sureties of David Fry, Tax Collector, in the name of tbe State of Tennessee. David Fry was joint defendant in the bill. Hacker, as District Attorney, demurred for himself and co-defendant, Pennebaker, and for causes of demurrer showed—
    1. There is no equity on the face of complainants’ bill.
    2. They have a full and complete remedy at law.
    3. Code, 2807, authorizing suits to be brought against the State, has been repealed, and there is no law empowering parties to sue the State.
    4. Officers of the State can not be sued in their representative capacity, thereby to effect indirectly what can not be done directly.
    5. If the object is to sue the State, the State should have been made a party defendant.
    The demurrer -being disallowed, February Term, 1872, Attorney-General Hacker appealed, and the cause came on for hearing at September Term, 1872, and was argued by Attorney-General Heiskell for defendants, and Messrs. Pettibone & Robinson and W. P. Gillenwaters for complainants.
    Attorney-General Heiskell, for the State:
    If there be any doubt on the merits of this ease, I would not feel justified in interposing the immunity of the State from suit as an obstacle in the way of a meritorious defense. I am justified in protecting the State from needless costs, and in insisting upon the jurisdiction of a court of law in the premises, as set up in the second ground of demurrer.
    Where the suretyship appears on the face of the proceeding, the remedy is at law: The People v. Jansen, 7 Johns., 337; Davis v. The People, 1 Gilman,. 409; King v. Baldwin, 2 Johns-. Ch., 554; W. 8. v. Howell, 4 Wash., 620, 623.
    But the matter of this bill is not a valid defense-in equity. The claim set up is, that the State, by a private act, gave time to the principal, David Ery, by which complainant and his sureties are released. By the act of April 23, 1866, s. 4, David Ery is allowed the further time of six months to collect and account for all his unfinished business as sheriff and tax collector: Acts, p. 222. On this the sureties claim a release of over $6,000 of State revenue.
    It is admitted that the settled law is that a contract with a creditor to give time to a principal without the consent of the surety, releases the surety. .
    . In King v. Baldwin, 2 J. C. R., 554, Chancellor Kent says: “The doctrine is, that the surety is bound by the terms of his contract; and if the creditor, by agreement with the principal debtor, without the concurrence of the surety, varies these terms by enlarging the time of performance, the surety is discharged. The surety is entitled to pay the debt when it becomes due, or he may call upon the creditor, by the aid of this court, to enforce his demand against the principal debtor. On paying the debt, he is entitled to the creditor’s place by substitution; and if the creditor, by agreement with the principal debtor, without tbe surety’s consent, has disabled himself from suing, when he would, otherwise, have been entitled to sue, under the original contract, or has deprived the surety, on his paying the debt, from having immediate recourse to his principal, the contract is varied to his prejudice, and he is consequently discharged. This is the true principle to be extracted from the cases.” “The surety has the right, on the day the debt is due, to come into chancery and insist on its being put in suit; and if the obligee has suspended that right by a new agreement with the debtor, he has disabled himself to do that equity to the surety which he had a right to demand, and which the relation between surety and debtor required.” * * *
    “The cases of discharge are all founded on the fact of a new agreement between the debtor and creditor, varying the contract.” * * * * *
    In one of the cases I have referred to, Justice Story, after examining the question with his usual diligence and ability, declares that he can find no case that mere delay to require payment, without any eontraet for that purpose, has been held to vary the responsibility of the surety; and he adopts it as a sound principle, that delay, unaccompanied with fraud or a valid agreement with the principal, for that purpose, will not discharge him. And see 2 Am. Lead. Cas., 419-482.
    The leading case in Tennessee upon the subject is Washington v. Tait, 3 Hum., 545. This case is based upon Story’s Eq., §§ 325, 326, from the latter of which I quote: “If a creditor, without any communication with the surety, and assent on his part, should stipulate in a binding manner and upon sufficient consideration for further delay and postponement of the day of payment of the debt, that will operate in equity as a discharge of the surety.”
    The Court then discuss, with sedulous care, the circumstances, to show that the contract in that case was on consideration and obligatory, and conclude: “Washington (the surety) had the right to come into a court of equity to compel Smith 'to exonerate him from his liability by paying the debt: 1 Sto. Eq., 327. But by his contract for delay, Tait suspended his own remedy, and as the surety could only be subrogated to the rights of the creditor, the principal debtor would have the same equities against him (the surety) as against the creditor: citing McLemore v. Powell, 12 Wheat, 557.
    With this clear and intelligible statement of the principle, there is no difficulty in determining when the surety is released. Whenever the right of the principal to sue is, for the time, gone, so that if he sued, the principal debtor could set • up the contract against him successfully as a defense, then he can equally set up the defense against the surety claiming to be substituted to the creditor’s right. This makes it necessary that it should be a binding and obligatory contract, capable of being enforced. A mere gratuitous indulgence, or promise of indulgence, being nudum pactum not capable of enforcement, has no such effect: Grimes v. Nolen, 3 Hum., 412; Deberry v. Adams, 9 Yerg., 52-54. Or, if it be made by attorney, without authority: Poindexter v. Vernon, 9 Hum., 90.
    Now the question is reduced to this: Was this an agreement obligatory on the State? It may be said, being a legislative act, it is obligatory upon every one. What officer could disobey the act of the sovereign power? Here lies the kernel of the whole case. If I hold a note as attorney for another, and that other direct me to hold it up for a certain time, because he has promised, without consideration, to do so, certainly I am bound to obey his instructions implicitly; but that is not the question. Is he bound? Is his right gone for the time, or may he retract? for if he may retract at will, the surety is not precluded from suit. Now, the Legislature, without consideration, has given time as an indulgence. The officers of the State, its attorneys, are bound, but is the right of the State gone, or suspended? Could the Legislature repeal the act and retract at will? If they could, then the remedy is not gone from the State; but the power of its agents is suspended, so long as the State chooses to stand by the voluntary and gratuitous promise. The surety, then, is substituted to a right, not suspended, but in force, only awaiting the pleasure of the State, at any moment, to withdraw the indulgence. The right of the surety, to which he is substituted, is a perfect right in full force, which he may, at any moment, proceed upon, though the officers of the State can not.
    It will be seen that I do not, in respect to the right of the surety, insist on any different rule in regard to the State from what prevails as to any other creditor; but I insist, on the contrary, that the State is to be subject to exactly the same riile in this respect.
    In Hunter v. The United States, 5 Pet., 175, where this doctrine was announced, it was held, that a special law, to release the principal from imprisonment, in execution, did not release the surety.
    In Smith v. The United States, 2 Wal., 219, the surety was held released by the erasure of a name of a co-surety, without the consent of the defendant. In the case of Hunt v. The United States, 1 Gal., 34, 35, it was held, that mere delay to- sue did not release the surety. In The People v. Jamen, 7 Johns., 337, it is settled that where the fact of suretyship appears on the face of the instrument, the remedy is' at law. So in Davis v. The People, 1 Gilman, 409.
    In two Illinois cases, the court decided that the giving of time to a tax collector releases his security: Davis v. The People, 1 Gilman, 409, is the first, and the other only follows this. Neither is based on any other authority; and it is simply a question whether this Court will follow the mere authority of two decisions, or will pursue the current of principle. ' The case in 1 Gilman can only be sustained upon the principle on which the Court puts it that the State is bound. If this is so, they are right. If the State is not bound, but the officers only, then the decision is wrong, unless it is based upon remedies peculiar to that State. Now, we have applied the true test before. If the State is bound, then she can not relieve herself. If the officers only are bound as the agents of the State, then the Legislature can undo at any moment what they have done. In this view, the whole basis of the decision falls to the ground. The surety may, at any moment, proceed, quia timet, to compel Fry to exonerate him by paying the debt: 3 Hum., 545; or he may proceed, by notice, for new bond and release: Code, 785.
    The' bond of Fry shows that he was appointed, in July, 1865, to fill a vacancy, and his term of office expired on the first Saturday in April, 1866: Code, 825, sub-sec. 5; Code, 599. Every dollar was then due from him, and the default fixed before the law granting indulgence was passed. The right of suit of the State was then perfect. The law did not take away, or diminish, or postpone the right; it only indulged the defaulter.
    The case of Davis v. The People starts out with a statement of the law, as to time given by valid and binding agreement. “ The Legislature had the right to pass the law, and it was binding on the State” (on the officers, not on the State). “While, it was operative, no suit could be brought against the collector” (not true, except as to officers). “During that period the sureties had no right to make payment to the county, and resort to their principal for reimbursement.” (In this State they could proceed quia timet, or move for new security, without making payment.) “A surety is not permitted to discharge the debt of the principal until he is in default, and can be legally called on for payment.” (Here the default was complete, and the right of surety present and unaffected.)
    
      The act of a State is like the act of a corporation. A bank may pass a resolution of gratuitous indulgence, or it may make a contract for delay. The resolution would bind the agents of the bank, but would not bind the bank, for the directory would not be precluded from rescinding the order. Therefore, the surety would not be released. Now, in what does the act of the directory of a State, the Legislature, acting upon its finances, differ from that of the directory of a bank?
    A city corporation may direct its attorney to wait upon its debtor for a specified time. He is bound to obey. But . the question is, is the city bound? Can not the city, by its legislative department, give a new direction, at any moment, to its attorney to proceed? Is its right, then, impaired or postponed by this direction, without consideration? Certainly not; and so certainly the surety for -that debt is not released. His right is not suspended. He may come into court, at any moment, to compel the city to settle with the debtor; or, rather, -bring the debtor in to compel him to pay the debt in exoneration of him, the surety, and bring the city in to receive it.
    The form of the direction is not material; it is the same thing if it be in form directory to the attorney, or other officers, or grant the delay directly to the debtor.
    This being so, in what does the act of the Legislature of a State differ in its operation from the act of the municipal legislature? Each binds the officers of each, but neither binds itself. The attorney for the city is not the city; he is bound not to sue; but the city is not bound not to sue when the act is one which she can, at any moment, revoke. The State is not bound by an act which the Legislature can, at any moment, revoke. The State is bound by a contract, and can not revoke that. The officers of a State are bound by a revokable direction as much as by a contract.
    A person is not bound by a voluntary consent to delay; he is bound by a contract to delay. The latter releases the surety, because the surety is bound where the principal is bound. But he is not bound where the principal is free;. he is not subrogated to a right modified by a binding contract where the principal is not bound and the contract is not modified. If the corporation is not bound, the surety is not. The State is not bound by a voluntary direction given to ' its officers; is the surety any more bound by the direction of the State to its officers, than the State is bound? The law is not directory to him as a citizen and a surety; it is only directory to the officers of the State. They are precluded from suit; the surety is not. His only remedy would be to pay the debt and sue the debtor himself, and this remedy is not taken away or suspended.
    The surety can either compel the State to settle with the principal, in the absence ‘ of such a law giving indulgence, and in some certain mode, or else he can not. He either ccm compel, or he can not. 1st. Suppose he can not compel the State to sue or to come into court for his exoneration. Then, of course, his remedy is not taken away by a contract of the State not to sue, for he has no remedy. Of course it would not be affected by a voluntary indulgence, for that which has no existence can not be affected. 2d. But, suppose he can compel the State to come in by bill filed and notice stuck on the door of the capitol (we may as well imagine that as any other mode, where there is none prescribed). If he can so compel the State to settle with his principal, by that bill served in that mode, then he can just as much compel the State in that mode to settle, where the time is granted without consideration, or contract, as where it is not. The direction is to the officers of the State; it is not to the surety. The compulsion can not operate on the State through its executive officers, but must operate directly upon the State. It must be by bill in court, and if the compulsion is on the State, not on its officers, then the State can be compelled when it is unwilling. It needs no compulsion when willing. It can be compelled when it refuses. It can be compelled when it grants indulgence. But it can not be compelled to do a thing when it is bound not to do it — when it has contracted not to. There the superior obligation comes in to prohibit the courts to do what is wrong, and they are bound to refuse to compel the State; not bound by the unwillingness of the State, but by the bonds, the obligations on the State — the contract.
    A creditor is compelled by a court to sue, or settle with his debtor, at the suit of the surety. The court may do this equally whether the creditor has promised not to sue or has made no promise, provided the promise is- not binding on the creditor; but if the creditor is bound by contract, then the court can not compel him to sue or settle in violation of his contract, based on value, not to sue.
    A private act to give indulgence to a State debtor is not in the nature of a partial law, but a mere business direction. Legislation of a general character, for the government of the people, is essentially different from laws to administer the revenue. The one must needs be general for the protection of the people. The other must needs be applied to the particular case, and be, in many instances, restricted to one case, one payment, one sum of money, one appropriation, one thing. An act to direct the Comptroller to issue a warrant to A, is not intended to operate alike on every citizen of the State. It is not within the prohibition against partial laws. It is a mere order on the Comptroller to do the act. An order to an Attorney-General to sue A, is not intended to operate on any one but the Attorney-General. An order on the Attorney-General not to sue A, is not an order to the surety of A not to sue A for the same debt. With such an order outstanding, if the State could be compelled to sue in any case, she could be compelled to sue in that case, unless that law was not only obligatory on the officer, but also on the State, as a contract, or on its citizens as a general law. It would not preclude the surety, for it is not directed to him. He might still proceed to put his bill in operation to compel the State. The Attorney-General need not be subject to compulsion. The attorney of a city could not be compelled to proceed with a suit which the city had directed him not to press, but the city could be compelled. My attorney can not, as to my suit, be compelled by a surety to disobey his instructions, but I can be made to sue or be brought in to accept my debt. If the State- is subject at all to compulsion to sue for the benefit of the surety, it is just as much subject to that compulsion when its attorney is instructed not, as if he have no instructions on the subject.
    The State as sovereign, has no right to say to the surety of A, you shall not sue A, and shall not compel me to sue him, when he has a perfect right to sue him; and when every man in the State has a right to compel his creditor to sue his principal, for whom he is surety. If it were to pass such a law, operative on a particular surety, it would be within the prohibition of partial laws, against an individual. Then a particular . law giving indulgence must be construed as a law touching the officers of the State — those whom she has a right to control by partial laws — not to a particular man or men, who she has no right to direct, except by general laws. This proves either that my construction is right, or, otherwise, that the whole law is void, and does not suspend proceedings at all.
    A private act is usually passed, on the application of those who are interested in it, and can not, under our Constitution, operate on those who do not consent to it.
    
      It results that there never has been a day or a moment when the State was bound not to sue, and so there has been no suspension of her right; never a day when the surety - could not sue for exoneration, or give notice for new security, and so he is not released.
    There is no merit in this application: These people knew what had been done, yet they suffered Fry to proceed; never gave - notice of their disapproval; allowed him to proceed in the faith of their names; and so they come within the Code, 774, and “he and his surety are estopped to deny the validity of the bond (to hold them), or the legality of the proceedings under which the money was obtained.” They should have given notice for new bonds, and that they considered themselves released. These provisions are not intended to leave the State without security. It is simply a fraud on the treasury, and other taxpayers, for these securities to look on and say: “Let him collect; if he pays over it will be all right, if not we will set up a release.” See United States v. Simpson, 2 Penn., 437; 2 Am. Lead. Cas., 340.
    Pettibone & Robinson, for complainants, said:
    The bill and demurrer present these questions for discussion:
    1. Were complainants discharged from liability on the bond by the act of the Legislature extending, without the assent of the sureties, the time for the performance of the obligation, &c. ?
    
      2. Have complainants full, complete and adequate relief at law?
    3. Have the courts jurisdiction — that is, can they exercise jurisdiction and control over defendants, as prayed for in this case?
    I. It is a rule of universal application that the liability of a surety is always striotissimi 'juris, and can not be extended by implication, or contract to which he is not a' party, beyond the scope of his engagement. An attempt to vary or enlarge the surety’s liability, whether by adding new stipulations, changing the time for the performance, or by doing any other act that might prove injurious to him, discharges him; and if the act be' done before_ breach, the defense is valid at law: Rees v. Herrington, 2 Ves. Ju., 540; 2 Amer. Lead. Cases, 317; 1 Kent, 419; King v¡ Baldwin et al., 2 Johns. Ch., 554; 3 Lead. Cases in Eq., 814; Varnum v. Milford, 2 McL., 74; Cooper v. Gills, 4 McL., 396; Wells v. Grant, 4 Yer., 491; Slarp v. Fagan, 3 Sneed, 541; Lea v. Dozier, 10 Hum., 447: Washington v. Taite, 3 Hum., 543; Thompson v. Watson, 10 Yer., 362; Brown v. McDonald, 8 Yer., 158. By implication: T. & S. Code, § 7475.; 2 Col., 108.
    And the fact that the obligee is a sovereign State, does not affect this principle; and the construction of a contract is the same as if both parties were private individuals: U. 8. v. Howell, 4 Wash., 620; 2 Amer. Lead. Cases, 372, 415; Smith v. U. 8., 2 Wal., 219; Hunter v. U. 8., 5 Pet., 173; Davis v. People, 1 Gilmore, 409; The People v. McHutton, lb., 638; Co-man v. State, 4 Black., 241.
    
      II. As to the jurisdiction of the Chancery Court, it is admitted that if the contract be varied before breach — which is in effect the abandonment of the old and the making of a new one — by the obligee, the liability of the surety is never fixed, and the defense is valid at law. If after breach, which fixes the surety’s liability at law, he must apply to a court of equity for relief.
    On breach, or forfeiture, the surety has an equitable, not a legal, remedy or relief given him. He can file a bill to enforce the performance or satisfaction of the contract; or, if he voluntarily, or on compulsion, perform the contract himself, he may immediately proceed to indemnify himself out of his principal’s property. These rights attach to every contract, and, in fact, are of its very essence in equity. A variation or postponement of them by the obligee is a fraud on the contract, or, more properly speaking, an absolute abandonment of it.
    Should the obligee, after such extension, receive payment of the surety, he (the surety) would only be subrogated to the obligee’s rights, and his principal would have the same equities against him as against the obligee; and should he attempt indemnity, or rather, repayment out of his principal’s . property, he would be met by the objection that he, the surety, had performed a contract which had been abandoned and abrogated by the obligee; that his payment had been officious (2 A. L. C., 407), the contract on which he was bound having been rescinded; or that he had officiously paid a debt before it was due, and he could not in this way. accelerate his (the principal’s) liability, or render him subject to suit, before he' (the principal) was in default to the obligee. In all of these three views, the contract is as effectually impaired in equity, but not at law, as if time was given before breach, &c.; but these doctrines being equitable, the proper forum for them is a court of equity: 2 Amer. Lead. Cases, 372-5, 388, 406-7; 77. S. v. Howell, 4 Wash., 620; Rees v. Berrington, 2 Ves. Ju., 540; Clew v. Brooks, Cush., 43; Samuel v. Howath, 3 Merivale, 272; 1 Story’s Eq. Juris., §§ 324-5-6; 2 lb., § 883; Adams’ Eq., 106-7; Washington v. Taite, 3 Hum., 543, 546; Thompson v. Watson, 10 Ter., 362; Brown v. McDonald, 8 Yer., 158; 3 Lead. Cases in Eq., 559, 560-1, citing a large number of authorities.
    If the terms of the contract were varied, as in this case, although for the benefit of the surety, he is, nevertheless, discharged. And if the act of the obligee be injurious to the surety, he is discharged, whether there was a consideration moving to the obligee or not. Maddooks, in his work on chancery, says: “ But when any act has been done by the obligee that may injure the surety, the court readily lays hold of it in his. favor, and will in such case, if called upon,. decree a perpetual injunction to restrain the holder of the surety from suing upon it:” 1 Maddocks’ C. P., 234, citing Law v. East Lnd. Co., 4 Ves., 833; Nesbit v. Smith, 2 Bro. C. C., 583; 4 King’s Dig., §§ 10, 108; 1 Story’s Eq. Juris., § 325; 2 Amer. Lead. Cases, 425, 386; 3 Lead. Cases in Eq., 561 ; Brown v. McDonald, 8 Yer., 158; Watts 
      v. Shuttleworth, 5 Har. & Nor., 235; Harrison v. Bisland, 5 Rob. (Lew.), 204; two last cited in 3 Kent., 124, notes.
    [Note.- — Counsel here proposed to argue the question of the right to sue the State, but as that question was not insisted on by the Attorney-General, it was not pressed, but an elaborate brief was filed on that question.]
    They insist, however, that this is not a suit against the State—
    1. As it is but a transfer of a suit from one forum to another, that complainants in this second may be able to make more perfect defense. Complainants ask no judgment against the State; they simply ask that a case begun in the name of the State — but, as they insist, without the authority of law — be transferred to a forum where they can avail themselves of a perfect defense, that they did not have in the first forum.
    2. The bill does not purport to be filed against the State; and the making of the ministerial officers of the State defendants, does not make the State a party. The Attorney-General of the' First District, and the Comptroller, are not the State of Tennessee; and especially is this so, when these officers are trying to enforce the performance of a contract in favor of an obligee Avho, long before, had abandoned that contract, and who were, therefore, acting without law, and of course outside of their official duty. In another branch of this ease, decided at the Nashville Term of this Court, it was expressly held, that the making of the Attorney-General defendant, did not make ■ the State a party to the suit: Fry v. Britton> Attorney-General, 2 Heisk., 606.
    The ease of Osborn v. U. 8. Bank, 9 Wheat., 738, is to this effect. Osborn, as the Auditor of the State of Ohio, was proceeding to collect off the U. S. Bank a tax under the State law, which • the bank insisted was unconstitutional. On appeal to the Supreme Court of the United States the injunction was sustained, on the grounds that officers were subject to the restraining powers of the courts when such officers were acting under an unconstitutional law, which is the same in principle as no law. And the question of jurisdiction was urged — that the State was substantially the party defendant. But this objection was overruled, and, after arguing the point at great length, Chief Justice Marshall says: “It may, we think, be laid down as a rule which admits of no exception, that in all cases where jurisdiction depends on the party, it is the party named on the record.”
    3. Complainants insist that under the state of facts in the bill, the law that applies to this case, and the general prayer for relief, that this court will treat the defendants as private individuals, in this effort they are making to extort money from those who are under no legal liability to pay the same: See the case of Greene v. Mumford, supra. And the large number of authorities heretofore cited in support of the position, that our governments are governments of laws and that the officers thereof, are but agents for the execution of those laws, and can, therefore, do nothing outside of their direction and behests,' except where 
      
      there is a discretion given them, which no one can have the hardihood to say exists in this suit: Harmoney v. Mitchell, 13 How., 115; Brown v. 77. S., 5 C. Cl. R. 4.
    4. It is submitted in the fourth place, that the action of the defendants in the execution of what they deem their official duty, in enforcing, or attempting to enforce, the collection of this bond, is simply ministerial, and that, therefore, they are not the State, nor are they superior to the restraining power of the laws. It has ever been held that officers in the discharge of their ministerial duties, are subject to the control of the Chancery Courts. The Supreme Court of the United States in the case of the State of Mississippi v. Johnson, President, etc., define in this language: “A ministerial duty, the performance of which may, in proper cases, be required of the head of a department, by judicial process, is one in respect to which nothing is left to discretion. It is a simple, definite duty, arising under conditions admitted or proved to exist and imposed by law.” (4 "Wal. 498.) And from the decision in the case of Kendall v. 77. S., 12 Pet., 527, down to the case of the State of Mississippi v. Johnson, ut supra, there has been an unbroken series of decisions, that all officers in the discharge of purely ministerial acts, are under the control of the courts. And the Attorney-General of the United States, in the , last mentioned case, conceded that such was the law, but insisted that the President’s duty in executing the law, was executive and' political; and the court recognize those distinctions in their opinion. And see upon this point: Kerr on Injunct., 599; Marburg v. Madison, 1 Crouch, 137; Kendall v. Stokes, 12 Pet., 524; D'arly v. Wright, 3 Bl'ach., (N. Y.,) 170.
    In this, last case, the Comptroller of the State of New York, who was about to sell a railroad and apply the proceeds under a law so clinching, to the exclusion of bondholders, etc., was perpetually enjoined. And so also was Frances, in the case of Lowery et al. v. v Frances, Treasurer, 2 Yerg.', 534, who was about to sell lands under a law so directing, enjoined from so doing by this Court; but in that case the question of jurisdiction was not' raised, etc.
    ’ Complainants submit that, if the legislative department can say, after a contract has been made between a citizen and the government, what the respective obligations of each party are, and change and add to those obligations at pleasure, simply on account of the supposed omnipotent sovereignty of a legislature — a power the other party does not possess — there can not be a binding contract between the parties, there being no mutuality. And also, that the State can both impair the obligation of contracts, and pass retrospective laws, in violation of the Constitution of the United States and the State of Tennessee, and yet the citizen who is injuriously affected by such violation of the paramount law of the country, is powerless to protect himself, if it be his equitable rights that have been invaded, and the State elect to proceed at law. Such a doctrine is slavish and absurd, yet it would be inevitably established by a decision against complainants in this cause. This Court, however, has said that “this potential power to do wrong is not confided to or possessed by the law-making power: ” Webster & Man v. Bose, cited Baxter’s Brief, 17. It remains to be seen whether this Court will make that high declaration of principle universal in its application.,
    On the 22d of October, 1872, Nicholson, C. J., delivered the opinion of the Court.
    Complainants were sureties of David Fry on his bond as collector of taxes for the State, in Greene county. The bond was executed on the 3d of July, 1865, payable to the State, in the penalty of $50,000. The District Attorney, Newton Hacker, gave notice that he would apply to the Circuit' Court of Greene county, by motion, for judgment against Fry and complainants as his sureties, for the amount of the State taxes by Fry collected and not paid over according to law.
    Thereupon, complainants filed their bill, in which they allege that, on the 23d of April, 1866, the Legislature of the State passed an act by which “David Fry, late' tax collector for Greene county, was allowed the further time of six months, from the passage of the law, to collect and account for his liabilities as such collector.” They state that this act was passed without their consent or knowledge. By reason of the indulgence so given to their principal, complainants insist that they are released from liability on the bond.
    To this bill Newton Hacker, District Attorney, and E. R. Pennebaker, Comptroller of the State, were. made defendants. They demurred to the bill, and upon the overruling of their demurrer, they have appealed.
    It is the well settled law, that a contract by a creditor to give time to a principal, without the consent of the surety, releases the surety. But the 'Question here is, Whether an act of the Legislature giving time to a' debtor of the State, will operate as a release of the surety of the debtor? The principle upon which the surety is released is thus stated by Chancellor Kent':
    “The surety is entitled to pay the debt when it becomes due, or he may call upon the creditor, by the aid of this Court, to enforce his demand against the principal debtor. On paying the debt, he is entitled to the creditor’s place by substitution; and if the creditor, by agreement with the principal debtor, without the surety’s consent, has disabled himself from suing, when he would, otherwise, have been entitled to sue under the original contract, or has deprived the surety, on his paying the debt, from having immediate recourse to his principal, the contract is varied to his prejudice, and he is consequently discharged.”
    And in The United States v. Simpson, 2 Penn. R., 437, Chief Justice Gibson further illustrated the principle, as follows. He says, “that a loss from indulgence, which is purely permissive, will discharge a surety, is unsupported by authority, and in contradiction of the most obvious principles of justice,- such a loss being attributable to the surety’s own negligence in omitting to warn the creditor to proceed, without which he may not know that a loss is impending.” He adds: “Actual detriment is not the criterion, or a material ingredient. If the creditor has disabled himself, the surety is ipso facto discharged; if he has not, no eventual loss from mere delay will produce that effect.”
    It follows, that if the State was disabled by the act of April, 1866, from suing the collector, the sureties, ipso facto, were discharged, and that without any inquiry whether actual detriment to them resulted or not.
    The ease, then, must turn upon the inquiry, Was the State disabled from suing by the action of the Legislature in granting six months’ time to the collector ?
    It is not denied by the Attorney-General that the Legislature had the constitutional power to grant time to the collector by the enactment of the private statute in question, nor that that act had all the obligatory force of law in suspending the authority of the agents of the State to proceed to enforce the debt against Ery. It is clear that if the Comptroller had directed the District Attorney to move against the collector for judgment for the amount due, during the time the act was in force, the existence of the act would have been a successful defense to the motion. It is only through these agents that the State could ' proceed to enforce her demand. It follows that, as soon as the act was passed and while it remained in force, the State, through the valid action of the Legislature, disabled herself from suing. But the Attorney-General insists, that although the agents of the State are bound by the act, and could not proceed to enforce collection, yet that the right of the State to proceed is not gone or suspended. To state the argument in the language of the Attorney-General: “Now, the Legislature, without consideration, has given time as an indulgence. The officers of the State, its attorneys, are bound, but is the right of the State gone or suspended? Could the Legislature repeal the act and retract at will? If they could, then the remedy is not gone from the State; but the right of its agents is suspended, so long as the State chooses to stand by the voluntary and gratuitous promise. The surety, then, is substituted to a right, not suspended, but in force, only awaiting the pleasure of the State, at any moment, to withdraw the indulgence. The right of the surety, to which he is substituted, is a perfect right in full force, which he may, at any moment, proceed upon, though the officers of the State can not.”
    It may readily be conceded that the act in question was not passed upon such a consideration as would constitute it a contract, or vest in the collector a right which would prevent the Legislature from repealing it. We are to presume that the Legislature enacted this statute upon the consideration of the public good, and therefore that, upon the same consideration, they had the right to repeal this, just as they can any other act resting on the same consideration. But from the moment of its passage it is the law that binds and governs, not only the officers of the State, but upon all the people and every department of the State, and it so continues to be obligatory until the Legislature chooses to repeal it. It is true, therefore, that the State retains the right, through the law-making department of the government, to repeal the act, and, so far as the collector is concerned, proceed to enforce collection before the expiration of the six months.
    But does it follow, that because the Legislature retains the right to repeal the act, therefore, while the act is in force the sureties are substituted to a perfect right, in full force, which they may at any moment proceed upon, though the officers of the State can not? What is the right to which the sureties are substituted ? Clearly it is the right to come into a court of chancery and require the creditor to enforce his right to collection of the debt. If the creditor was a private individual who had given time to his debtor without consideration, the right of substitution could be readily exercised. But here the State is the creditor, and through the law-making department she has passed a law which disables all of her officers and agents, executive, ministerial and judicial, from enforcing collection for six months. But she has reserved the right to repeal that law at any time; therefore, it is said, the right to enforce collection at any time is retained by the State. But the State ban only enforce collection through its agents, and their hands are tied by a law which they dare not violate. Before the State, then, can exercise its right to enforce collection, the State, through its lawmaking department, must pass another law repealing the existing act. Is the surety substituted to this right? Where is the tribunal in which the right can be enforced? Where are the agents through whom the right can be enforced? They are all forbidden by the existing law to take any steps toward collection from the debtor.
    But, again, if the sureties are substituted to the right of the State to enforce collection, then they must have the right to require the law-making department to pass an act repealing the existing law, before the right of substitution can be made available. As long as the existing law stands, the right of the State to enforce collection is mere abstraction. It can not be maintained that the substitution of a surety to an abstract right like this, is the right of substitution which •the law secures to a surety ‘to indemnify him against losses.
    But this argument overlooks the important fact, that whenever the creditor, by a binding act disables himself from suing his debtor, ipso facto, the surety is instantly released, without any inquiry as to the question of damage. Now, it is conceded that the act giving time to the collector was a valid, binding law from the time it was passed. From that moment the State disabled herself from suing, because she forbid all of her officers and agents to enforce collection. The immediate result was, that the sureties were as effectually discharged as if they had never signed the- bond. The subsequent repeal of the act might remove the obstacle which stood in the way of the State suing the debtor, but it could not restore the right to sue the sureties which had been lost by the passage of the act. The reason upon which a surety is released when the individual creditor, for a valid consideration, gives time to his debtor, is that the contract stands in the way of his suing. An act of the Legislature, though not based on such consideration as to make it a contract, has all the binding force and effect of a contract, until it is repealed. The only difference is that the individual creditor has no reserved right to abrogate his contract. The State has this reserved abstract right, but until this right is called into exercise, the act is as obligatory on the parties, and on all the officers and agents of the State, as if it had in it the elements of a contract.
    The exact question involved in this ease was determined ' in two cases in Illinois — one of Davis v. The People, 1 Gilman, 409; the other, The People v. licJDutton, 2 Gilman, 688. In both it was held that the giving of time to a tax collector by an act of the Legislature, was a release of his sureties. We concur in the correctness of these decisions, and hold that in the present case the demurrer was properly overruled. The decree is affirmed, and the case remanded.
    The Attorney-General having applied for a rehearing, the following opinion was delivered by the Chief Justice, October 31, 1872:
    The application for a rehearing of this case is granted upon the ground that the Court misunderstood the extent of the Attorney-General’s concession as to the constitutionality of the act of Assembly granting indulgence to the collector, Pry. Assuming that act to be constitutional as a law of the State, we have no doubt of the release of the surety. But if that act is not entitled to the obligatory force of a law, then a different result may follow. As this question was not discussed, and as it is one- of great public importance, we deem it proper to grant the rehearing asked for.
    On the rehearing at the November Special Term, 1874, the case was argued by Gillenwaters for the complainants, who said:
    1. All the legislative acts of the law-making department of a State government are prima facie constitutional and valid; and if in conflict with 'the Constitution, it is not void, but voidable only. Such acts are valid until declared invalid by a court of competent jurisdiction and authority, and then only at the instance of one injured by' that act: Cooley’s Const. Lim., 263-4, et seq., -and authorities cited in notes.
    2. If this act be utterly unconstitutional and void, yet the State, by whose sanction it was passed} has recognized it, and treated it as constitutional and Amlid, and will be estopped from now questioning its validity, after its expiration, and after it has done the sureties all the injury of a valid contract: McGinnis v. State, 9 Hum., 54, 55; Bigelotv on Estoppel, 276-7, citing Commonwealth v. Audri, 3 Pick., 224; Carver 
      v. Astor, 4 Peters, 87; Penrose v. Griffith, 4 Binn., 231; Ntoo v. Carpenter, 7 Col., 527; Majer v. LZhiieii, 22 Ala., 699.
    3. And if the State is not a party — and it is submitted she is not, if the act in question was valid, for she can be a party only by effect of law — it is too clear for argument that defendants ought to be enjoined.
    The rule governing the courts in considering of the constitutionality of an act of a State Legislature, is opposite of that in construing an act of Congress with reference to the Constitution of the United States. In the latter, the government of the United States being one of granted powers, the courts look into the Constitution for a “grant.” In -the former, the State government being originally supreme and omnipotent, they look into the Constitution of the State [and of the United States] for “limitations.” If none found, the act is valid: Cooley’s Const. Lim., 173, and authorities cited, and also 168 and authorities in note; Potter’s Dwarris on Const, and Statutes, pp. 62-3 and authorities cited in notes, and lb., 369.
    There is no limitation imposed by the Constitution of the State Legislature as to, and it has therefore absolute control of, the treasury and funds of the State. It can donate them, -and can even compromise, or delegate the power to compromise, with a debtor to the school fund, which the Constitution declared should be perpetual, and the principal never diminished by appropriation. And yet it is now insisted that the Legislature can not grant one of its financial agents a few months indulgence. May give to' one money to keep forever, yet can not give it to be kept for a shorter period! Governor v. MoEwen, 5 Hum., 284-5-6; State v. Fleming, 7 Hum., 152, citing Repper v. State,- which we can not find reported.
    The first and second clauses of sec. 7, art. xi., of Constitution of 1834, simply prohibited — 1st, the suspension of a general law; and 2d, the passage of a law, inconsistent with the general law of the .land, for the benefit of an individual. The law affected here is no general law; it is particular law, affecting but a small class of the citizens of the State: Cooley’s Const. Lira., 353-4-5, and authorities; and particularly the definition given by Mr. Webster in the Dartmouth College case, and the language of Judge Hemphill in James v. Reynolds, 2 Tex., 251, cited in Cooley, ut supra, note; Vanza.nt v. Waddell, 2 Yer., 260; Sheppard v. Johnson, 2 Hum., 296; Trigally’s case, 6 Col., 382;. and authorities collected in note to sec. 8 Bill of Bights.
    These provisions were introduced for the purpose of rendering the law equal, and protecting the citizen from oppression, and not from an act of grace and indulgence on the part of the State.
    Again, it is submitted that this act of indulgence does not come within the legal definitions of any of the words used in the third clause of the section. A right is that by which a person can do a certain thing, or possess something by virtue of title. Fry acquired by this act no right to collect the money he did not possess. before, and certainly no title to it. Nor is it a “privilege.” It did not grant to Fry a special prerogative, contrary to common right, such as ■the privilege of a legislator from arrest. Nor is it an “immunity,” as Fry was not thereby exempted from serving in an office or performing some onerous duty imposed upon the citizens generally. Nor is it an “exemption” dispensing with a general rule for the benefit of the public, not the individual, such as the exemption of clergymen from serving on juries, &c: See the definitions of these words in Bouvier’s Law Dictionary; and as to “ rights,” “ privileges,” and “ immunities,” see Paschall’s American Const., p. 225, s. 221.
    Since the introduction of this section with the Constitution of ’34, not a session, so far as our research has gone, has met and adjourned without passing one or more of these acts, or acts as repugnant to this provision — many of them almost identical, in all amounting to hundreds — yet not one has ever been questioned, so far as we can find from the reports, but the act providing a County Judge for a part of the- counties of the State and not for all. This usage has fixed the construction and meaning of the Constitution. “A contemporaneous exposition is the best and most powerful in law,” and exercises an all-controlling influence in fixing, the meaning of even a constitution of granted powers, such as the Constitution of the United States: Moore v. State, 5 Sneed, 570-4; 1 Kent, citing Myrieh v. Mosey, 27 Maine, 9; Whit-comb v. Rood, 20 Vermont, 49; Stuart v. Laird, 1 Cranch, 299; Martin v. Munter, 1 Wheat, 304; Cohens 
      v. Virginia, 6 Wheat, 264; Cooley’s Const. Lim., 165; Sedgwick on St. and Const. Law, 251.
    If this act be invalid as a partial law under this section of the Constitution, and because by the same law the same rights, privileges, immunities, and exemptions are not extended to every other person who-might be able to bring himself within the provisions of the act, then every railroad charter, every turnpike and toll-bridge corporation in the State, as well as-all other corporations, is a nullity; and untold loss, inconvenience, and confusion must follow such a decision by this Court. “An argument drawn from what is inconvenient is good in law, because the law will not permit any inconvenience ”: Bouvier’s Law Lict. Maxims, citing Coke Litt., 66a; 7 Taunt., 527; 3 Barnw. & C., 131; 6 Clark & E., 671.
    And such an argument applies to the construction of a doubtful statute, and is of great weight: Broom’s Legal Max., 5th ed., 130-1, under maxim argwmentum ab inconvenienti.
    
    This act, as was ably argued by the Attorney-General on the sixth page of his printed brief presented in this cause at the last term of the Court, is simply a financial transaction between the State, as principal, and one of her agents. It grew out of one state of circumstances; relates to but one agent, and had reference to but one sum of money; and, from the very nature of the case, the law could not be made general in its terms. Yet, though not general, it was binding on all the agents of the State as long as it was in existence.
    
      R. M. Barton, with him, said: ■
    The law was passed. Conceding that the Legislature could repeal the law, and thereby restore the power to the officers of the State to move against Ery and securities, could a motion have been made after the passage of the law and before the repeal? It could not. Then, as the time from the passage of the law and the repeal was sufficient for Ery to break up, the securities are therefore released.
    Pettibone & Robinson, for complainants:
    The act, in positive. terms, extends the time to Ery. The law, by its terms, does not undertake to discharge the surety of Ery; but by the extension of time to said Ery, under the well-established principle of law governing sureties, and fixing their liabilities and protecting their rights, the discharge of the sureties follows as a legal consequence of the act of extending of time, and is not a part of the act of extension. The very ground on which the right of the sureties to discharge rests, is that they were not parties to, nor did they consent to, the contract.
    Each tax collector’s liability is fixed by his bond, and these bonds are not the same, they differ in amount, &c.
    The right of the sureties to be substituted continues so long as the debt is unpaid, regardless of the time fixed for payment. This time may pass; the default on the part of the principal may be perfected; this does not suspend the right of substitution, but it continues. Now, if the creditor takes this right to sue away by a contract with the debtor, this takes from the surety the right of substitution, and his right to discharge is perfected.
    If a law, repealable. by the Legislature, impose no-obligations or restraints while in force because the-Legislature may repeal it, then we have no general law of the State obligatory on the people, because the-Legislature may repeal the law.
    Attorney-General Heiskell said:
    The argument of the counsel for complainants is now what mine was in the original argument, that is, that this law is merely a business direction to the agents of the State, and that it has none of the characteristics of a law. Whenever this is conceded (and he is drawn to this concession to avoid the prohibition against the act as a law for the benefit of individuals contrary to the general law), then it stands precisely like a similar direction given by a client to his lawyer, or a bank to its agent, and is no release.
    The argument, then, narrows itself to this dilemma. If this is a law, and operates as such to bind the State as a suspension of its rights and remedies, as it must do to effect the release of the sureties, then it is void as not being general, but a partial law suspending the general law, as to collectors, for the benefit of individuals. If, on the other hand, it is valid at all, it must be valid as a mere business direction, such as a corporation might give to its agents, which would not affect the rights and remedies of the sureties, and so could not release.
    
      The idea that the State is estopped, is entitled to no consideration. If a bank directs an officer not to sue, and the officer does' not sue, the bank is not estopped to say that was a mere gratuitous direction given by it to its agent, which was at any time revocable. If the State does a similar aet, how is she estopped when the other is not? If it is a law binding and obligatory, then there is no need of estoppel; but if it is not, then the State will not be estopped where a private bank would not.
    But it is said the State has recognized the law. In what way ? The Comptroller is not the State when he obeys, nor is the District Attorney. Can their recognition make that law which was not law without it?
    If this is a law, it brings this bond and these sureties within the operation of the Code, 771: “Every official bond executed under this Code is obligatory on the principal and sureties thereon, * * * for the faithful discharge of any duties which may be required of such officer by any law passed subsequently to the execution of the bond, although no such condition is expressed therein.”
    This act as law, while it gives indulgence, creates an obligation on the part. of Ery to account at the end of the time of indulgence. It becomes a duty, required by this law, to account at the end of that time. It is therefore a duty required by a law passed after the bond was executed; and though no such condition is expressed in the bond, this section creates the right of action just as if it was one of the duties which had been expressly provided for in the bond.
    A general law shortening the time for accounting, would have effect under this section; a general law giving a later day, would have the same effect. This is either no law, or it is a valid law, applying to this case. If it is valid, it has the same effect as a general law would do so far as it is operative, that is, so far as the case to which it does apply is concerned — i. e., this particular case. If, then, it is a valid law which would release at common law, it is also a valid law imposing new duties, and provided for by the bond; so that by the same act by which they are released on one ground, they are instantly bound again in another aspect.
    That this is a special law, if it operates as a law at all, is too plain to need argument. It applies to a single case of one particular collector; whereas, all the other collectors of the State are left subject to the general law. It is therefore the suspension of a general law for a time for the benefit of an individual. ' It is a law (if a law at all) granting to one individual rights, privileges, and immunities not by the general law granted to others. It is therefore directly within the prohibition, and void. Elaboration can not make plainer what is evident on a simple statement of the position.
    But it is said this is a clause intended to prevent oppression. So it is; but it is also intended to prevent unequal benefits. Benefits to one set of persons are often burthens to another. Who pays this $6,000 if these complainants do not? The taxpayers at large. It is therefore a prejudice and an oppression to them; and perhaps, as they made the Constitution for their own protection, a construction using it for their protection is the very construction that ought to be adopted.
    The attempt to show that the words of the Constitution do not cover this act, is puerile. Is not a right to delay settlement a right which Fry did not have before? Is not this exemption from the duty of settlement a something? Is not an immunity from suit, an immunity? Exemption from arrest is a privilege; exemption from suit is so by the same token.
    Every charter Avould be void but for the exception in- this clause of the Constitution. The fact that the Legislature has disregarded the Constitution in many instances, only proves how hard it is by written rules to restrain the habits of a people.
    There is another point in this case which I never have Avaived, but have constantly insisted on, and which the Court haAre not adjudged. Here the position of sureties appears on the face of the bond, and the remedy is at law as matter of defense. In my first brief in this case, which I file again with this, I relied upon this ground. What reason is there for not setting up this defense at law? It is simply defensive, matter. There is no discovery prayed; there is no ground of equity stated. It is a suit not against the plaintiff in the original suit, the State, but against N. J. Hacker, an agent simply to prosecute the suit.
    
      I maintain that a court of equity never interferes to enjoin a suit at law to set up a defense plain, adequate, and unembarrassed at law. This is either no defense at all, made out in this bill, or it is a defense unembarrassed at law — a defense which can be set up as well there as in equity, upon a simple naked legal question.
    To sustain this ground of defense, I cite: The People v. Jansen, 7 Johns., 337; Davis v. The People, 1 Gilman, 409; King v. Baldwin, 2 Johns. Ch. R., 554. This objection is taken by the demurrer.
    Again, this suit is brought against N. J. Hacker, District Attorney, precisely as was the case of Fry v. Britton, 2 Heiskell, 606, which the Court held to be a nullity because the State was not a party, and they held the decree there void.
    Complainants, strangely enough, insist upon it as a ground of right, that the State is not a party to this suit.
    As to the position that an act is constitutional until the courts say it is not, that is a self-evident absurdity. If this be so, it is not the violation of the Constitution which makes the act void, but it is the fact that the Court says so. A circuit court might, then, say that the act is void, and this would make it so, and all acts under it would be void until it was reversed and held valid; vice versa, every act done under an unconstitutional act would be valid, because the act is valid until the declaration comes which makes it void. If its validity is complete until the declaration of nullity, then the courts would say it can not do any good to declare this law void, for that declaration can not affect past acts, so can not affect the present case. We have no business to declare the law for the purpose of affecting future cases, unless it also affects the case in judgment. This would be an end of constitutional law, except in cases of preventive remedy. But a hundred cases might be cited in which acts done under an unconstitutional law are held void. See Butterworth v. County of Shelby, where the warrants of the Barbour Lewis commission were held void, after issue; and see the cases in Tennessee generally, which I will furnish if desired.
    The counsel attempt to restate the grounds on which the act releases sureties, and they substantially do it as I have done in my original brief. It does seem to me so plain that this operates as no release, that I will try to restate it.
    A surety being entitled to substitution to the right of his principal, if the principal parts with that right by a valid contract, the surety is released. But if he agrees, without consideration, to wait, this does not bind him, he may at any moment revoke it; . therefore his right is not suspended, and the surety may at once proceed.
    A contract revocable at will, is no cause of release. A direction to an attorney 4o delay, is no release. If this be regarded as a mere direction to the State officers to delay, which the Legislature might revoke at will, then it has never suspended the State’s right of suit. If so, it has never suspended the sureties' right. When I direct my lawyer not to sue on a note, the surety may- at once sue for that reason, and so can not be hurt. The direction to my attorney does not bind the surety nor suspend his right. The direction to the State's attorney • does not bind the surety or affect his right. He may sue the principal and secure himself notwithstanding.
    So in regard to the officers of a bank. They can not sue when the directory forbids them to sue. Yet the surety is not released if at any moment the directory are at liberty to say, sue now. Their right is not suspended, though their officers are bound to obey them.
    So the Legislature may give to their officers a mere legislative direction to indulge, which will operate like the order of the bank, but is not obligatory on the Legislature itself, for they may at any moment say, sue now.
    
    The directory may be gone to Jamaica, or to the new diggings in South Africa, but that fact and the consequent impossibility that they should revoke the order, can not release the sureties. The existence of the right to revoke is all. That it is impossible to exercise the right, it is immaterial. The remedy is not gone while the right exists.
    So the Legislature, if it has the right to revoke, does not affect the right of the State to sue. It binds its officers not to, just as the bank does; but its own right exists. Its directory have given a direction which is revocable. If they are not in session, still the fact of revocability exists, though, circumstances may prevent its exercise.
    If this act does not operate as a law by which the right of the sureties is taken away, then it can only operate as the direction of a bank does. It will not suspend the right of the surety to his suit, though it will suspend the right of the attorney of the State or the bank to prosecute the suit.
    Mr. Barton puts a note to the end of the brief, which I do not regard as by any means conclusive.
    The officers of the State, if they had proceeded during the period for which they were directed to stay, would be precisely in the condition of officers of a bank. Suppose their attorney violated instructions and brought suit, and the defendant called for his authority to prosecute the suit, and he could produce nothing but the direction not to sue. Could he not defeat that suit? As a legislative direction, the act in question' would operate as showing a want of' authority to sue. But the surety ón the bank debt would not be released by the fact that the suit might be defeated by the want of authority in the attorney. Why would the surety on the State debt? Viewing this as a legislative direction, he would not be. The counsel, therefore, has stated a fallacy. He puts the fact rather upon the suspension of the ' actual suit than upon the true ground, the suspension of the right to bring suit. Or, he puts it rather upon the suspension of the right of the agent to represent his principal for the time, than upon the right of the principal. In both these respects his position is untenable. They are driven, therefore, to give to this act, not the force of a- mere direction like that of a bank, but to insist that it also operates as a law, obligatory as such, and differently from the direction of a corporation to its officers. When they do this, they are insisting upon a partial law, giving rights, privileges, and immunities to this tax collector not extended by the same law to all others in like condition.
   Nicholson, C. J.,

delivered the following opinion:

Complainants are sureties of David Ery, as tax collector for Greene county. On the 26th of April, 1866, the Legislature passed an act allowing Fry the further time of six months to collect and account for the taxes. The question raised by the bill is, does this extension of time to the tax collector release his sureties ?

As % between individuals, it is well settled that whenever the right of the principal to sue is, for the time, gone, so that if he sued, the principal debtor could set up the contract against him successfully as a defense, then he can equally set up the defense against the surety claiming to be substituted to the creditor’s right. This makes it necessary that it should be a binding and obligatory contract, capable of being enforced. A mere gratuitous indulgence, or promise of indulgence, being nudum pactum, not capable of enforcement, has no such effect; 9 Yerg., 32; 3 Hum., 412. It is insisted that upon these principles the sureties of Fry were not released by the extension of time given to him by the Legislature, because the sureties had the right, notwithstanding the legislative act giving time, to pay the debt and sue the principal debtor. But could the sureties sue the principal successfully? Would not the legislative act of indulgence preclude the sureties from collecting the debt from the principal debtor? This must depend upon the legal effect of the legislative act. If it has the force and effect to protect the principal debtor against suit by the State, then of course it would protect the principal debtor from suit by his sureties. The Attorney-General says that "a private act to give indulgence to a State debtor is not in the nature of a partial law, but a mere business direction. Legislation of a general character, for the government of the people, is essentially different from laws to administer the revenue. The one must needs be general for the protection of the people; the other must needs be applied to the particular case, and be, in many instances, restricted to one case, one payment, <&c.” And further: Then a particular law giving indulgence must be construed as a law touching the officers of the State — those whom she has a right to control by partial laws — not to a particular man or men, whom she has no right to direct, except by general laws.” In another part of his argument the Attorney-General, after stating that the State is not bound by a voluntary direction given to its officers, says: "It is only directory to the officers of the State. They are precluded from suit; the surety is not.” We understand from all this that the Attorney-General concedes that the act giving time to Fry may be valid as a business direction; that it operates upon the officers of the State whose business it is to collect the revenue; that these officers are precluded from suing by the act giving indulgence. But he insists that the State itself is not bound not to sue, and hence there was no suspensión of her right. It results, if this argument is sound, that the Legislature precluded the Comptroller and Attorney-General from suing Fry during the time of indulgence given, but yet his sureties were not thereby prevented from sueing him, or compelling the State to sue him, notwithstanding the act giving time. It is scarcely necessary for us to say, that the sureties could not prosecute a suit against the State to compel her to sue the principal debtor. This would be a violation of the familiar principle, that the sovereign can only be sued with his consent. Then, could the sureties pay the debt and sue the principal debtor? The Legislature had protected the principal debtor from ' suit, by forbidding the Comptroller and Attorney-General and Circuit Judge to enforce collection by suit. It is conceded by the Attorney-General that this pfohibition is binding on the officers of the State. The State operates alone through its officers. If their hands are tied by a valid legislative act, we are unable to understand how the sureties are to proceed to sue, and collect by suit from their principal debtor, a debt which the State has forbidden her own officers to collect from him by suit. We understand that on the subject of revenue the sovereignty of the State is represented by tbe Legislature, and a legislative act is passed wbieh forbids the officers of the State to sue the debtor of the State. This operates necessarily to protect the debtor from suit, as well by the sureties as by the officers ■ of the State. It is true the State, through the Legislature, may repeal the act of indulgence, but until such repeal it is binding, and the State is incapable of enforcing the debt, except through the repeal of the act by the Legislature. Until such repeal, the suspension of the right to sue is complete, and the sureties can have no remedy, either against the State or the principal debtor.

It follows that the legislative indulgence given to Ery, as it was not repealed, operated to discharge his sureties. It follows that the Chancellor’s decree overruling the demurrer was correct, and is affirmed with costs. The cause will be remanded.

Deaderick, Freeman, Sneed, and Turney concurred.

McFarland

delivered the following dissenting opinion :

This cause was determined at the September Term, 1872, and an opinion rendered holding that the act of the Legislature passed on the 23d of April, 1866, enacting that David- Fry, tax collector for Greene county, be allowed the further time of six months from the date of the act to collect and account for his liabilities as collector, operates to release the complainants, who were his sureties on his bond for the year I860, they not having assented to such extension of time. A rehearing was ordered, as it was understood principally upon the question whether the act in question was in violation of any clause of the Constitution. The law seems to have been intended to operate in two respects — first, to allow Fry six months longer time to collect the taxes. This of itself would not seem necessarily to affect the rights of the sureties or of the State. He might be allowed to act as tax collector for six months longer time, upon the principle- that á sheriff is allowed to act as sheriff, after his term of office has expired, for the purpose of winding up his business; but this without affecting his liability for his previous failure of duty. But this act also provides that he shall have the six months longer time to settle and account for his liabilities; and this implies that the right of the State to proceed against him, under the law as it then stood, for his failure of duty — even his failure to pay over money then in his hands — was suspended during this six months; and the question is, had the Legislature the power to pass this law? It is conceded that the Legislature had the power, unless there be found an express restriction against it in the Constitution. In the 8th clause of Art. XI. of the Constitution are the following words: “The Legislature shall have no power to suspend any general law for the benefit of any particular individual, nor to pass any law for the benefit of individuals inconsistent with the general laws of the land; nor to pass any law granting to any individual, or individuals, rights, privileges, or immunities or exemptions, other than such as may be by tbe same law extended to any member of the community who may be able to bring himself within the provisions of such law.” Then follows a proviso in regard to corporations. As the law stood at the passage of this act, it applied equally to all tax collectors in the State, and they were required to account for and pay over money by them collected, or that ought to be by them collected, by the 31st day of December in each year, unless the tax books. were not received in time, and then they were allowed a reasonable time thereafter; and this was to be the tenor and effect of their bonds. It may be assumed that Fry, by his failure to settle and account for the taxes by the last day of December, had become liable to be proceeded against under the law as it then stood, and that this liability was then impending over him and his sureties; thereupon, to meet this emergency, this act was passed. It does not profess to alter or amend the general laws of the State as to tax collectors, but simply to extend the. time as to David Fry from the 31st day of December, 1865, until the 23d of October, 1866. It was an amendment of the general provisions of the previous laws, but applicable only to the one tax collector, and applicable only for this one term. This was not a general law. It was not intended to have any general effect, after affecting its purpose as to this one tax collector for the one term, it became a dead letter upon the statute book, and the previous general laws remained as before. • What was this but suspending the general law for the benefit of David Fry? Taking the laws as a whole, including this act, it would read that all tax collectors shall settle their-accounts and pay over the taxes by the 31st of December for each year; • but this general law shall not operate as to David Ery, tax collector of Greene county, for the year 1865, and for that year he shall have until the 23d October, 1866. I am of opinion that this is in direct violation of the plain letter and spirit of the Constitution. It can not escape notice that the effect of this law would be to allow Ery to keep the money already collected by him, and then actually in his hands, for six months longer time, without any reason or consideration for the indulgence; and, for all the Legislature knew, or could be reasonably supposed to know, he had at that very time every dollar of the money in his hands.

It is perhaps true that laws similar to .this have been repeatedly passed by the Legislature, and so far as I have ascertained the validity of such laws has not been judicially determined; but I see nothing in this sort of legislation to entitle it to be exempted from the operation of the same constitutional restrictions that apply to other laws.

It is argued that the Legislature has general control of the finances of the State, and may pass such laws in' regard thereto as the interests of the public, in its opinion, may demand. The case of McEwen v. The Governor, 5 Hum., is relied upon. That case held that the Legislature had power to provide by resolution for the appointment of commissioners to compromise a suit pending against the sureties of the ■Superintendent of Public Instruction for moneys due the State, upon principles of equity. It was said the Legislature has unlimited power over the money and property of the State, except in so far as its power is restricted by the Constitution; and this may readily be conceded.

I do not see that the question here is controlled by the fact that it is the right of the State that is affected by the law. I think the Legislature has no more power to violate constitutional restrictions where the rights of the State only are affected, than it has where the law affects more directly interests arising between individuals; and, in fact, the rights of all citizens of the State are indirectly affected in a case of this character; for if money collected as taxes from the people is released — is given away to the collector — ■ this increases the burthen upon every other taxpayer in the State, and they have the same right to the protection of the Constitution against this species of class legislation as any other.

But it is again argued that the Legislature has the power to authorize contracts' to be entered into in behalf of the State; that the bonds of all. collectors are mere contracts, and these contracts may be changed by agreement between the parties and the State through the Legislature. I do not think this law has any of the elements of a contract. It was enacted as a law, and should be tested as a law. Fry and his ‘sureties were not parties, and had nothing to do with it — it was an act of the law-making power. It did not authorize any one to make any contract with Fry or his sureties, nor was any made after its passage. The Legislature had no doubt the power to change the general law applicable to tax collectors, and require different duties of them and provide for' different remedies against them, but I deny that, without changing the general law, the Legislature may declare that the law shall not be enforced against a particular individual.

It is again argued that, whether the law was valid or not, it was acted upon and obeyed by the officers of the State, and the injury to the sureties thereby resulted. It is true no steps were taken against Fry or his sureties during the six months. This delay of itself did not affect the sureties, because if it was mere indulgence it would not affect their rights. This delay might well have occurred without such law. The question is, not whether there was delay, but whether there was a valid law or contract authorizing the delay. If the sureties had filed their bill quia timet against Fry, would the act in question have defeated their remedy ?' If it was an unconstitutional law, it would not. It is true the Attorney-General was not likely to disregard the law; but if he had done so, and instituted proceedings against Fry and his sureties before the expiration of the six months, the question as to the validity of the law would have been raised. The officers of the State are no more bound to submit to and obey an unconstitutional law than any other citizen. Suppose the Legislature should pass a law that no Attorney-General shall prosecute A. B. for murder, alleged to have been committed by him, or that they shall not prosecute the case for six months, would the Attorney-General be bound to obey this, either as a law or as a direction of the Legislature? I should say not. I do not agree with the' Attorney-General that the act was obligatory upon the officers of the State, as a resolution or as a direction to them in the discharge of their duties. I think it is law or nothing. I think the Legislature has the power to regulate the' duties of the officers of the State by general laws, and do not doubt it in special cases not provided for by general laws to direct the institution of suit, or the compromising or dismissal of suits, in behalf of the State. But if the Legislature assumes, either in the form of a law or resolution, to direct the Attorney-General to execute the law against one defaulting officer and not to execute it against another, and he chooses to obey this direction, the consequence is precisely the same as if he had taken the same course without such direction. I think no latitude of construction should be allowed in determining the power of the Legislature in a case of this character. To do so, is to encourage legislation the effect of which is to enable defaulting officers, with public taxes in their hands, to avoid their just liability by appealing to legislative favoritism, and thus throw the loss upon the people.

Courts should be slow to declare void an act of the Legislature except upon clear grounds, but should do so without hesitation when it appears plainly to be in violation of a constitutional restriction.  