Macon & Augusta Railroad v. Little

Montgomery, Judge. In these cases the Act of October 13th, 1870, commonly known as the Relief Act, is attacked, mainly on two grounds: 1st. It is said to be invalid because the session of the Legislature at which it was passed was not a session of the General Assembly, after the second under the Constitution, and that, at the time of the passage of the Act, that Legislature had been in session more than forty days without having prolonged the session by a vote of two-thirds of each House. 2d. That the Act impaired the obligation of all contracts made prior to June 1865, and is, therefore, repugnant to the tenth section of Article I. of the Constitution of the United States. It is impossible to consider intelligently the first question made without reviewing the so-called Reconstruction Acts of Congress, and ascertaining to what extent Courts are now compelled to recognize the results of those unconstitutional and revolutionary measures as facts accomplished, and which are now beyond the remedial power of the Courts. 1. Before entering upon that discussion, it becomes necessary to fix, with some degree of precision, the import of that clause in our State Constitution, which says “no session of — 374 — the General Assembly, after the second under this Constitution, shall continue longer than forty days, unless prolonged by a vote of two-thirds of each branch thereof.” Does this mean no session of the General Assembly, after the second session under this Constitution, or no session of the General Assmbly after the second General Assembly under the Constitution? If “General Assembly” is to have the same relative meaning' under the Constitution of Georgia that “ Congress” is understood to have under the United States Constitution, then the latter is perhaps the correct reading. The Congresses of the United States are regularly numbered, and each has two regular sessions. The last clause of the sentence which we are considering, would seem to strengthen this view, “unless prolonged by a vote of two-thirds of each branch thereof” Does this mean unless prolonged by a vote of two-thirds of each branch of the session? The question is 'debatable, it is not necessary to decide it. It may be dismissed with the general remark that, our General Assemblies are elected every two years, and organized at their first session for the entire period for which they are elected, but each holds a regular session annually. If the reading here intimated, as possibly the proper one be correct, this disposes of the question at once. No one pretends that the Legislature of 1870 was a General Assembly after the second under the Constitution of 1868. But suppose the word “session” is to be understood after the word second, in the clause under review, what, then, is meant by the words “ under this Constitution ” ? A brief retrospect at the anomalous circumstances by which the Convention of 1868 was surrounded, explains the meaning to my mind, at least, very clearly. By the Act of March 2d, 1867, the first of the reconstruction measures, five conditions precedent were required to be complied with before military rule should cease in the States “lately in rebellion.” These have been correctly stated to be, 1st, The formation of a State Constitution; 2d, The ap — 375 — proval of that Constitution by Congress; 3d, The ratification of the fourteenth amendment; 4th, The declaration by Congress that the State is entitled to representation; and, 5th, The final Act of recognition — the admission of Senators and Representatives, on their taking the oath prescribed by law. Section sixth of the Act then provides, “that until the people of the said rebel States shall by law be admitted to representation to the Congress of the United States, the civil governments that may exist therein shall be deemed provisional only, and shall be in all respects subject to the paramount authority of the United States any time to abolish, modify, control and supersede the same.” Article XI., sections nine and eleven of the Constitution of Georgia, fully recognizes the provisional nature of the government then forming, and that it was to remain so until otherwise declared by Congress. It is also matter of history that the Convention which framed that Constitution assembled under, and recognized the validity of the Act of March 2d, 1867. It is further matter of history that our laws were well nigh in a state of chaos, resulting from the disastrous termination of the war, and the Reconstruction Acts of Congress. Such being the condition of things during the session of the Convention of 1868, is it not obvious that they meant to make the first two sessions of the General Assembly (so to read the Constitution) of indefinite duration, in order to give them full time to bring order out of chaos, and to reconcile an unwilling people to a government forced upon them by the bayonet ? It so seems to me. But will it be said that they meant that a Provisional Legislature should undertake this arduous work? Even supposing they had been permitted to finish such a work, by the very terms of the Act under which the new government was called into being, all their labor might have been lost by having the system established by them abolished, modified, controlled or superseded by the order of a military commander, or by Act of Congress. Can it be supposed that the Convention had so — 376 — little foresight as this? With great deference to adverse opinions, it seems to me impossible. When that part of the Constitution now under review was first reported to the Convention it read as follows: “ The first meeting of the General Assembly shall be within .........days after the adjournment of this Convention, etc. * * * No session of the General Assembly, after the first above mentioned, shall continue longer than forty days, etc.: Journal of Convention of 1868, page 122. It was amended by striking out the words “first above mentioned” and inserting “second under this Constitution:” Ibid., page 318. This, perhaps, militates against the reading first suggested in this opinion. But it indicates much more strongly that the Convention contemplated meetings of the General Assembly held under some other authority than that of the Constitution. I conclude, therefore, that the language used in the Constitution contemplated that there would be one or more sessions of the General Assembly under the Reconstruction Acts and the military commander, provisional in their character, and that the sessions of the General Assembly to be held “ under this Constitution ” were the sessions to be held after the iron hand of a hostile and despotic government had been withdrawn from the control of the State government. But it is said that the government was not provisional after the withdrawal of the military control over the State, in July, 1868, by General Orders, No. 55, Adjutant General’s office, and General Orders, No. 103, Headquarters Third Military District, July 22d, 1868, issued by General Meade, and that this Court has decided that the State had fully complied with the Reconstruction Acts on July 21st, 1868, in Foster vs. Daniels, 39 Georgia, 39. The question in that case was, when did the County Courts cease, which depended upon, when did the Constitution go into operation. If, as I think I have shown, the Constitution went into provisional operation, before it became permanent, by permission of Congress, Foster vs. Daniels cannot affect the question — 377 — now before the Court. But, unfortunately, neither the Military Department nor the Supreme Court of Georgia was the proper judge of this matter. General Terry, General Meade’s successor, thought the State had not, and recommended that the President should countermand those orders. It was done. He further recommended that members of the Legislature, elected under General Meade, should be called together as a Provisional Legislature. Congress, by Act of December 22, 1869, provided for so doing, thus determining the question that the government of Georgia was still provisional, under Act of March 2, 1867; otherwise, they could have had no warrant, under their own theory, for interfering with the domestic government of a State. It may be added that the Legislature of 1870 was not elected, assembled, organized or sworn in under the Constitution. Its members were elected before the adoption of the Constitution. It was assembled under Act of Congress, of December 22, 1869. It was organized by a military commander, who rejected whom he pleased and seated whom he pleased. It was sworn in by a judicial-officer of the United States, took oaths not contemplated by the Constitution, and did not take the oath prescribed by the Constitution, before a State officer, as required by the Code. It undertook to act under the Constitution, so far as permitted by military authority, but no further, and was recognized only as a provisional body by the United States commander: House Journals, 1870, page 53. His word, and that of Congress, was that of the master to the slave; to hear was to obey. 2. Finally the Supreme Court of the United States, in the late case of White vs. Hart, have said, “ The action of Congress upon the subject (of the Reconstruction measures) cannot be inquired into. The case is clearly one in which the judicial is bound to follow the action of the political department of the government, and is concluded by' it.” While compelled to receive this dogma as law, and as perhaps now true, so far as de facto governments have been established — 378 — under those Acts, I can but lament that a co-ordinate department of the government should fail so far in its highest duty — the protection of the property, liberty and lives of the people from the unconstitutional and revolutionary encroachments of the two other departments. I differ from,^and protest against, a proposition so degrading in the broad sense in which it is enunciated. 3. Under that decision we are compelled to hold that the reconstructed provisional government of Georgia did not expire before June 12th, 1870, when Congress enacted “that the State of Georgia, having complied with the Reconstruction Acts, and the fourteenth and fifteenth amendments to the Constitution of the United States, having been ratified in good faith by a legal Legislature of said State, it is hereby declared that the State of Georgia is entitled to representation in the Congress of the United States.” When her Senators and Representatives were admitted under that Act, says the Court, “the condonation by the national government became complete.” The conclusion to our minds is inevitable, that up to the passage of that Act, at least, the provisional government, organized under the Act of March 2d, 1867, still existed. 4. It follows that the session of the Legislature of 1870, which passed the Act of October 13th, of that year, was not a session of the General Assembly after the second, under the Constitution of Georgia, in the sense in which those words were used by the Convention of 1868. Hence the Act under review is not invalid because passed by the Legislature more than forty days after the commencement of its session. Counsel on the one side have earnestly invoked the Court to look to the law alone, and decide the momentous questions raised by the record, in the cases under consideration, without reference to the consequences which may result from a decision declaring these Acts unconstitutional, insisting that this Court have nothing to do with any consequences which may result. On the other hand, it is urged that the gravest — 379 — consequences will follow a decision declaring the Acts unconstitutional, which the Court should not ignore; those consequences, it is said, being no less than the overthrow of the entire Slate government — executive, legislative and judicial departments. That such consequences might possibly result, none can deny who are acquainted with our recent history, and recollect the pretexts that have been seized upon by an unfriendly paramount power to overthrow our State government more than once. "Without conceding the rule insisted on by counsel, attacking the constitutionality of the Acts in question, I have not found it necessary to resort to the argumentum ah inconvenienti, though no case has ever presented a stronger reason for the application of it than the present, had I doubt upon the question. The reasoning is conclusive to my mind that the objection is unsound, without that argument. I will add that the point under discussion comes fully within the principles laid down by this Court, Judge Warner delivering the unanimous opinion of the Court, in Solomon vs. The Commissioners of Cartersville, 41 Georgia, 157. The question then under consideration was the power of the Governor to approve an Act after the Legislature had adjourned. In that case, the approval was more than five days after the adjournment. The eminent jurist delivering the opinion, says: “ If this was an original question, independent of any construction heretofore given by the executive department of the State government, this Court would be inclined to hold that the Governor, under the Constitution, could not approve and sign any bill after the adjournment of the General Assembly; but, upon looking into the past history of our legislation, we find it has been the practice for many years for the Governor to take five days after the adjournment of the General Assembly for the revision of bills, and to sign them within that time, but not afterwards; that a large number of the most important Acts now upon the statute books of the State have been so approved and signed. This usage — 380 — and practice of the executive department of the State government should not now be disturbed or set aside.” It will be observed that Judge Warner bases his refusal to declare invalid Acts approved within five days from the adjournment of the Legislature, upon two grounds: first, the interpretation placed upon the Constitution “ by the executive department of the State government:” secondly, that “a large number of the most important acts now upon the statute books of the State have been so approved and signed,” to declare which unconstitutional must create great confusion, is the necessary inference, and be attended by very serious consequences; though it will be observed that neither the Judge delivering the opinion, nor any member of the Court, entertained any such doubt as would justify a resort to the argumentum ab inconvenienti upon strict legal principles. Two principles, applicable to the present case, are deducible from Solomon vs. the Commissioners of Cartersville— first, a decision by a co-ordinate department of government, upon a question legitimately within its sphere, will have great weight with this Court in sustaining the constitutionality of an Act attacked as void, because not properly acted upon by that very department. Secondly, the argumentum ab ineonvenienti will be strained to its utmost limits to sustain Acts of the Legislature, to declare which void might produce very serious consequences to the State. The principles laid down in that case apply with much greater force to the present; here we have the decision of the three departments of the State government that the body of Acts passed in 1870 are valid, to-wit: the legislative, the executive and the decision of this Court in Gormley vs. Taylor, decided September 5th, 1871, besides a concurrence in their validity by a subsequent executive and Legislature, which has amended, repealed and refused to repeal, many of the Acts of 1870 — the repeal of the one now under review being expressly attempted, and failing of success. Again, the consequences which might have resulted from declaring all Acts signed by the — 381 — Governor after the adjournment of the Legislature invalid, sink into insignificance when compared with those which might follow a decision that the entire body of laws of 1870 should be stricken from the statute book. The power of a Court to destroy is tremendous — it cannot rebuild. It should, therefore, approach with great circumspection and caution the investigation of a question in which it is called upon to sweep out of existence, at one blow, more than a hundred laws. It is submitted that if the laws of 1870 are unconstitutional for the reason alleged, much more are the Acts of 1871 obnoxious to the same objection. The Legislature which passed the latter, came into existence under one of the former. And the Acts of 1871 were submitted to a person, as Governor, for his approval, who, by concession of counsel claiming the laws of 1870 to be unconstitutional, was not the legal Governor of the State. Again, if Judge Warner lays down the correct rule, in his dissenting opinion in Gormley vs. Taylor, no law passed by the Legislature at its approaching session in July can be valid, unless the adjournment in January last was by joint resolution passed by two-thirds of each House. I have not the Journals at hand, but my recollection is, that the resolution of adjournment was passed by a majority vote only.* Judge Warner says, in that decision, “by reference to the Journals of the General Assembly, as published, which this Court is bound to recognize under the provisions of the 3762d section of the Code, the third session of the General Assembly, under the Constitution of 1868, was commenced on the tenth day of January, 1870.” [The day they assembled under the proclamation of the Governor, issued in obedience to the Act of Congress of December 22, 1869.] “ The Act in question was dated on the 28th day of October, 1870, more than — 382 — forty days after the commencement of the third session of the General Assembly under the Constitution of 1868. After a careful examination of the Journals of the General Assembly, it nowhere appears, therefore, that the time was prolonged by a two-thirds vote.” If, then, the Journals of the General Assembly, which sat in January, 1872, do not show that the adjournment over to July next was carried by a two-thirds vote, no law passed by that Legislature at its approaching session in July can be valid. It would be difficult to imagine a case where the reasoning admits of being so closely pressed to the redudio ad absurdum. It has been well remarked by counsel that society abhors anarchy. The logical result of the argument against the constitutionality of the Acts under review seems to me to be anarchy. 5. The next objection is, that the first four sections of the Act of October 13, 1870, impair the obligation of all contracts made prior to June, 1865, and are therefore void, under the tenth section of Article one of the United States Constitution. It is also said they impose a penalty for past delinquencies, and are, therefore, ex post facto in their operation. The argument is, that the first section forbids the plaintiff to have a verdict or judgment in his favor until he has made it clearly appear that all legal taxes upon the debt “ have been duly paid for each year since the making or implying of the debt,” etc., and that the second section requires him to file an affidavit that all legal taxes “ have been duly paid” “for each year since the making of the debt,” etc., and that this affixes an ex post facto penalty for nonpayment of taxes, besides impairing the obligation of the contract, the words, “duly paid for each year,” meaning paid each year as they fell due. If the Legislature intended this, they have signally failed to express such intention in the language used. Our laws provide for the payment of back-taxes at any time, and taxes due for many years may now be paid “ for each year,” and when paid, they are “ duly,” or properly, paid under the law. Doubtless many legislators — 383 — may have voted for the Act under the impression that it required a party plaintiff to swear that he had each year paid the taxes on his debt as they fell due. Indeed, the Act seems to have been skillfully drawn with a view of creating such an impression upon the minds of a sufficient number of advocates of relief to insure its passage. It is equally clear that the language used does not require him to do any such thing, but gives him six months after the passage of the Act within which to pay his taxes and file his affidavit, if his suit was pending at the time of its passage, and up to the commencement of his suit, if it is brought after the passage of the Act. Hence, the operation of the three first sections are not retroactive. But it is said that the fourth section requires, as a condition precedent to a recovery on the debt, that the Court shall be clearly satisfied that “said debt has been regularly given in for taxes and the taxes paid,” otherwise “said suit shall be dismissed.” Suppose it be conceded that this section is unconstitutional, it does not help the case; the ground is fully covered by the first three sections, and the plaintiff must still pay his taxes, file his affidavit, and make the proof required by section third. But does “regularly given in for taxes” mean given in each year for taxes? “Regularly given in” surely means given in according to rule; law is a rule of action. Then, according to law, what is the law applicable to such a ease? Revised Code, section 866, provides, “Receivers and collectors are required to receive the returns, and to collect the taxes thereon for former years, when any person or county are in default, which taxes shall be assessed according to the law in force at the time the default occurred;” and this, especially when taken in connection with the following section, would seem to relieve the defaulter, when he voluntarily goes forward and returns his back-taxes, from the penalty of double taxation, imposed in the event the receiver discovers the property withheld from taxation and — 384 — returns the owner as a defaulter, under section 839 of the Code. I think I have shown that the first four sections of the Relief Act of 1870 are prospective in their operation. Do they impair the obligation of a contract? This question is more delicate. It is not to be doubted that the States may pass laws affecting, to a certain extent, the remedies on contracts. To what extent the Supreme Court of the United States, at least, have left undetermined: Von Hoffman vs. City of Quincy, 4 Wallace, 553. In that case the Court says, “No attempt has been made to fix definitely the line between alterations of the remedy which are to be deemed legitimate, and those which, under the form of modifying the remedy, impair substantial rights. Every case must be determined upon its own circumstances.” Again, upon the same page, the Court says it is only that “ legislation which affects the contract directly, and not incidentally or only by consequence,” which is void. Once more it says, “it is also settled that the laws which subsist at the time and place of the making of-the contract, and where it is to be performed, enter into and form a part of it, as if they were expressly referred to or incorporated in its terms:” Page 550. Now, then, how far does the Act in question affect the remedy ? It requires the taxes, which the plaintiff has been derelict in paying, to be first paid before he shall be entitled to his remedy. The payment of these taxes was required by the law at the time the contract was entered into. The Legislature have the undoubted right to enforce the payment of taxes; the Act is but a mode of doing that. True, the indirect effect of the Act is to induce persons who have long neglected their duty to the State, to abandon their claims rather than pay the taxes, and no doubt the Legislature foresaw this consequence and availed themselves of the method to afford relief to a ruined and bankrupt people. Those who have defied the law and allowed six months to pass, when they had suits pending, without paying the taxes, may have lost their claims, not by — 385 — any provision of this Act, however. So far as it is concerned, they may now pay their taxes and re-commence their suits. But it is said the Limitation Act of March, 1869, will now bar those claims, and thus the entire remedy is destroyed.. Would not, then, the constitutional objection come better when that Act is pleaded ? Or, if not, has the plaintiff any one to blame but himself? Much has been said of the dishonesty of the Act, and yet no excuse is offered for the refusal of the plaintiffs to render unto the State her dues. Because she has been indulgent to these defaulters in not hitherto forcing them to pay their just proportion of the burdens of government, they now claim the right to collect their debts, including the proportion of them due to the State, without paying the State’s own money into her treasury! They claim the right to force their debtors to pay the uttermost farthing, and yet have gladly availed themselves of the indulgence on the part of the State to themselves, and still claim that indulgence as a right. The parable of the unmerciful servant here finds its apt illustration. The case of Livingston et al. vs. Moore, 7 Peters, 469, bears some analogy to the present one. There the plaintiffs, as heirs of John Nicholson, sued the defendant in ejectment, in Pennsylvania. Nicholson had been Comptroller General of Pennsylvania, and had resigned, owing the State a large amount. After his appointment a statute of the State was passed giving the State a lien upon his property for the amount due by him. The State then sued him and he confessed judgment. After that another statute was passed, appointing commissioners to take possession of his lands, (off which he had a large amount,) and report the condition of his accounts to the Governor, who was, by the provisions off the statute, to issue an order to the commissioners to sell the land. This was done, and defendant bought. His title was. attacked by the plaintiffs on the ground that the statutes of the State above mentioned were unconstitutional, as impair. — 386 — ing the obligation of three contracts existing between the State and Nicholson: first, his appointment as Comptroller General under laws defining his liability at the time; secondly, the State’s grant of the land to him; thirdly, the acceptance by the State of the confession of judgment. The Court says, “The body politic has its claims upon the constituted authorities as well as individuals; and if the plaintiffs’ course of reasoning could be permitted to prevail, it would then follow that provision might be made for collecting the debts of every one else, but those of the State must go unpaid, whenever legislative aid became necessary to both. This would be pushing the reason and nature of things beyond the limits of natural justice page 551. The Stamp Act of Congress of June 30th, 1864, is certainly more obnoxious to the constitutional objection here raised, than the Act of October 13th, 1870, of our Legislature. The Act of Congress not only imposed a tax on notes, etc., made before its passage, but also required an additional tax to be paid in shape of a stamp upon the writ, when the holder brought suit on pain of a dismissal of the action. But it is said the intention of the Legislature was to destroy these contracts made prior to June, 1865, and that intention being unconstitutional, the Act is void. It seems to me counsel do not draw with sufficient accuracy the distinction between the intention to do an act, and the obvious consequences which may result from the act when done. The intention of the Legislature was manifestly to deny the use of the Courts to creditors, in this class of contracts, until they had paid all back taxes due on such contracts. The result of such denial has been that many have abandoned their claims. It was not compulsory upon them to do so. Many, it is true, misread the law and supposed it required that the taxes should have been each year paid to enable them to maintain their suits. A glance at the title, which, under our Constitution, controls the body of the Act, would have disabused their minds of that idea, even supposing the body — 387 — of the Act could be so construed, which I think I have shown is not true. Many litigant plaintiffs have paid their taxes and thus retained their suits in Court. It is by their cases that the constitutionality of the Act must be tested. If the Act “ so changed the nature and extent of their existing remedies, as materially to impair their rights and interests,” then it is void. If “ when the contracts here in question were entered into ample remedies existed,” and by the Act “all were taken away, not a vestige was left, every means of enforcement was denied,” clearly the Act is unconstitutional: White vs. Hart, United States Supreme Court, December 7, 1871. This cannot be said. Suits are now pending or have gone to judgment, which have come under the operation of the Act, and have weathered the obstructions thrown in their way by its provisions. Keeping in mind that “the duty which the Court is called upon to perform, is always one of great delicacy, and the power which it brings into activity is only to be exercised in cases entirely free from doubt,” I cannot say that the remedy is so materially affected as to leave my mind without very serious doubts as to the validity of the objection that the law impairs the obligation of contracts. Indeed, the weight of the argument is, to my mind, in favor of the constitutionality of the Act. It therefore is my duty to refuse to declare the Act unconstitutional. 6. If I am mistaken in my reading of the body of the Act, it undoubtedly is to be understood in the light of its title and controlled by it. That is so plain that he who runs may read. It denies to debts, contracted before June, 1865, “the aid of the Courts until the taxes have been paid.” Supposing, then, the words in the body of the Act legitimately bear a retroactive interpretation, “yet on a sound construction of every Act of Parliament, the words in the enacting part must be confined to that which is the plain object and general intention of the Legislature in passing the Act; and the preamble affords a good clue to discover what that object was:” Broom’s Legal Maxims, 247. Under our Constitution the title affords — 388 — a controlling clue to discover what that object was. Quando res non valet, ut ago, valeat quantum valere potest. To the extent of the title, then, the Court should give effect to the first four sections of the Act. Therefore, in all suits pending at the time of the passage of the Act, for debts founded on contracts made prior to June, 1865, the taxes must have been paid, and the affidavit filed within six months after the Act passed, and in all suits commenced after its passage, at the time of filing the writ, on pain of having the case dismissed on failure to do so. The law, if variant from its title, is invalid only to the extent of the variance, 4 Georgia Reports, 26; 12 Ibid, 36. 7. Much, has been said of the corrupt motives by which the Legislature which passed this Act was controlled. If Congress or a State Legislature passes a law within the general scope of their constitutional power, the Courts cannot pronounce it void, merely because, in their judgment, it is contrary to the principles of natural justice. “There are but two lights in which the subject can be viewed: First, if the Legislature pursue the authority delegated to them, their acts are valid. Second, if they transgress the boundaries of that authority, their acts are invalid. In the former case they exercise the discretion vested in them by the people, to whom alone they are responsible for the faithful discharge of their trust, but in the latter case they violate a fundamental law which must be our guide whenever we are called upon as Judges to determine the validity of a legislative act:” Calder vs. Bull, 3 Dall, 399. Again. “ That corruption should find its way into the governments of our infant republics and contaminate the very source of legislation, or that impure motives should contribute to the passage of a law, or the formation of a legislative contract, are circumstances most deeply to be deplored.” “It may well be doubted how far the validity of a law depends upon the motives of its framers, and how far the particular inducements operating on members of the supreme — 389 — sovereign power of a State to the formation of a contract by that power are examinable in a Court of justice. If the principle be conceded that an act of the supreme sovereign power might be declared null by a Court in consequence of the means which procured it, still would there be much difficulty in saying to what extent those means must be applied to produce this effect. Must it be direct corruption, or would interest or undue influence of any kind be sufficient? Must the vitiating cause operate on a majority, or on what number of its members? Would the Act be null, whatever might be the wish of the nation, or would its obligation or nullity depend upon the public sentiment? “ If a majority of the Legislature be corrupted, it may well be doubted whether it be within the province of the judiciary to control their conduct, and if less than a majority act from impure motives, the principle by which judicial interference would be regulated is not clearly discerned.” “It would be indecent in the extreme, upon a private contract between two individuals, to enter into an inquiry respecting the corruption of the sovereign power of a State.” With much more to the same effect, in Fletcher vs. Peck, 6 Cranch, 130. Chief Justice Marshall delivering the opinion. 8. It only remains to be added, as more exclusively applicable to the cases under consideration, that where a bill to marshal assets has been filed by an administrator against the creditors of an estate represented by him, whose claims are antagonistic, and some of the claims are founded on contracts entered into before June, 1865, it is not necessary for creditors holding such claims to file an affidavit of the payment of taxes with their answers, their claims having been brought into Court by the administrator, and not by themselves. On the trial of the case, however, they should make it clearly appear that the taxes have been paid, to entitle them to a decree for the payment of the claims. 9. Subscriptions to the stock of the Macon and Augusta Railroad Company, made before June, 1865, stand upon the — 390 — same footing with other debts contracted before that date; and in suits against the subscribers for the amount of their subscription, the payment of the taxes and the filing of the affidavit, as required by the Relief Act of 1870, are necessary. Judgment in the case of the Macon and Augusta Railroad Company vs. Frank L. Little, executor, affirmed. Judgment reversed in Jackson B. Johnson, administrator vs. R. Stokes Sayre, on the ground that the creditors, holding claims founded on contracts made before June, 1865, should have proved payment of taxes on those claims to entitle them to a decree for the payment of the claims. Footnotes [*] Note — Since writing the text, I have ascertained that the adjournment in January, 1872, to July next, was by a majority vote only, and not in accordance with Article III., section 4, paragraph 9 of the Constitution, providing that where a vote of two-thirds is required, the yeas and nays shall be entered on the Journal.