51 U.S.

218
10 How. 218
13 L.Ed. 394

JOHN W. PAUP, JAMES TRIGG, AND RICHARD PRYOR,

PLAINTIFFS IN ERROR,
v.
THOMAS S. DREW, AS GOVERNOR OF THE STATE OF
ARKANSAS, AND SUCCESSOR OF ARCHIBALD YELL,
DECEASED.
December Term, 1850

THIS case was brought up, by writ of error, from the Supreme Court of
the State of Arkansas.
The same question was involved which was raised in the preceding case
of Woodruff v. Trapnall; namely, whether the state of Arkansas could
refuse to receive the notes of the Bank of the State of Arkansas under the
circumstances therein stated; and also the additional question, whether she
could refuse to receive the notes in her character of trustee under the
following circumstances.
On the 2d of March, 1827, Congress passed an act (4 Stat. at L., 235,)
entitled 'An Act concerning a seminary of learning in the Territory of
Arkansas,' by which two entire townships of land were directed to be set
aside and reserved from sale, out of the public lands within said Territory,
for the use and support of a university within said Territory.
On the 23d of June, 1836, Congress passed another act (5 Stat. at L., 38),
entitled 'An Act supplementary to the act entitled 'An Act for the
admission of the state of Arkansas into the Union,' and to provide for the
due execution of the laws of the United States within the same, and for
other purposes,' by which the lands so reserved were vested in the state of
Arkansas.
On the 28th of December, 1840, the legislature of Arkansas passed an act
entitled 'An Act to authorize the Governor to dispose of the Seminary
lands.'

On the 13th of May, 1842, Archibald Yell, then Governor of Arkansas,

sold to John W. Paup the right to enter and locate six hundred and forty
acres of the above lands, and received from him five bonds, payable in
one, two, three, four, and five years after date, in specie or its equivalent,
with James Trigg and Richard Pryor as sureties. The amount of the bonds
was $3920.
In October, 1847, Thomas Drew, as Governor of the state, and successor
to Archibald Yell, brought a suit upon these bonds in the Pulaski Circuit
Court.
On the 21st of October, 1847, the defendants brought into court the sum
of $6050 in notes of the Bank of the State of Arkansas, and pleaded a
tender of the same in discharge of the debt. The plea further set forth the
act incorporating the bank as it is stated in the report of the preceding case
of Woodruff v. Trapnall.
On the 25th of October, 1847, the plaintiff's counsel demurred to this plea,
setting forth, amongst other causes of demurrer, the following, viz.:
'4th. That the proceeds of said bonds are part of a trust fund committed to
the state by Congress for special purposes, over which the state has no
power, except to collect and disburse the same in pursuance of the objects
of the grant; and the said state has no power to apply said funds to the
payment of her ordinary liabilities, nor is the state bound to accept in
payment of such bonds any depreciated bills, bank paper, or issues, even
though she may be ultimately liable to redeem such depreciated bills, bank
paper, or issues.
'5th. The said bonds sued on never constituted any part of the capital stock
of said State Bank, nor were the issues of said bank ever made receivable
in payment of debts due the state in a merely fiduciary capacity.'
On the 23d of December, 1847, the Pulaski Circuit Court sustained this
demurrer, and gave judgment for the plaintiff in the sum of $3920,
together with $2199.44 damages, with interest on said debt and damages
at the rate of ten per cent. per annum till paid.
The case was carried to the Supreme Court of the state of Arkansas, upon
a bill of exceptions, which court, on the 24th of July, 1848, affirmed the
judgment of the Pulaski Circuit Court, as follows:
'This cause came on to be heard upon the transcript of the record of the
Circuit Court of Pulaski County, and was argued by counsel; on

consideration whereof, this court doth adjudge and decide, that the act of
the General Assembly of the state of Arkansas, approved January 10,
1845, repealing the twenty-eighth section of the act of said General
Assembly of said state incorporating said bank of said state, is not a law
impairing the obligation of any contract involved in this case, nor
contrary, in any wise, in regard to this case, to the Constitution of the
United States, which was one of the questions in issue, and necessary to be
adjudicated in this case; and that said state is in no wise bound by law to
receive the bills and notes of said bank, issued before the passage of said
act of January 10, 1845, in payment of the debts due to said state, as laid
in the declaration, which was one other question involved in, and
necessary to, the adjudication of this case; wherefore there is no error in
the proceedings and judgment of said Circuit Court in this cause.
'It is therefore considered by the court, that the judgment of said Circuit
Court in this cause rendered be, and the same is hereby, in all things,
affirmed, with costs. It is further considered, that said defendant recover
of said plaintiffs all his costs in this court in this cause expended, and have
execution thereof.
From this judgment, a writ of error brought the case up to this court.
It was argued by Mr. Lawrence and Mr. Reverdy Johnson, for the
plaintiffs in error, and by Mr. Sebastian, for the defendant in error.
Being argued in connection with the preceding case of Woodruff v.
Trapnall, the arguments were necessarily blended together. So far as
related to the peculiar circumstances of this case, the council for the
plaintiff in error contended that a state could be a trustee, and cited 2 Atk.,
223; 1 Vern., 419, 428, 437; Hard., 465; 1 Ves. Sr., 453; 3 Atk., 309; 2
Sch. & L., 617; 1 Eden, 176; 1 W. Bl., 121; 6 Price, 411; and to show that
the notes of the bank ought to be received, 6 Gill & J. (Md.), 364; 7 Id.,
460; 5 Pet., 641; 6 How., 329.
Mr. Justice McLEAN delivered the opinion of the court.

This is a writ of error to the Supreme Court of Arkansas, under the twenty-fifth
section of the Judiciary Act of 1789.

A judgment was rendered, in the Pulaski Circuit Court, against the plaintiffs in
erorr, on the 23d of December, 1847, for six thousand one hundred and
nineteen dollars and costs, on bonds payable at different times, given for the

purchase of a part of certain lands granted to the state by Congress, for the
support of a seminary, and which lands were sold by the Governor, as the agent
of the state, under the authority of the General Assembly. The bonds were
made payable and negotiable at the State Bank of Arkansas, 'in specie or its
equivalent.'
3

The defendants pleaded a tender in the notes of the State Bank of Arkansas, and
relied upon the twenty-eighth section of the charter of the bank, which provided
'that the bills and notes of said institution shall be received in all payments of
debts due to the state of Arkansas;' that the notes of the bank tendered were
issued while this section was in full force, and which constituted a contract to
receive them in payment of debts by the state, which the state could not
repudiate, &c.

There was a demurrer to the plea, which was sustained by the court. The case
was submitted to a jury, whose verdict was for the plaintiff, on which a
judgment was entered. A writ of error was prosecuted to the Supreme Court of
Arkansas, on which the judgment of the Circuit Court was affirmed.

By the act of the 2d of March, 1827, the Secretary of the Treasury was
authorized to set apart and reserve from sale of the public lands, within the
territory of Arkansas, a quantity of land not exceeding two entire townships, for
the use of a university, &c. And by the act of the 23d of June, 1836, it is
provided, 'that the two entire townships of land which have already been
located, by virtue of the above act, are hereby vested in and confirmed to the
General Assembly of the said state, to be appropriated solely to the use of such
seminary by the General Assembly.' Under the act of the state of the 28th of
December, 1840, these lands were sold by the Governor of the state, and the
bonds now in question were given on the purchase of a part of them, as above
stated.

The entire capital of the bank is owned by the state, and its concerns are
managed by the agents of the state. The directors of the principal bank and of
the branches are elected by the legislature of the state .

In the case of Woodruff v. Trapnall, decided at the present term, this court held
that the twenty-eighth section in the charter constituted a contract between the
state and the holder of the bills of the bank. That the pledge of the state to
receive the notes of the bank, in payment of debts, was a standing guaranty,
which embraced all the paper issued by the bank until the guaranty was
repealed. And that this construction was founded upon the fact, that the bank

belonged exclusively to the state, was conducted by its officers, and for its
benefit. That the guaranty attached to the notes of the bank in circulation at the
time of the repeal, and such notes the state was bound to receive in payment of
its debts. That in this respect the obligation of the contract applied to a state
equally as to an individual. And that as to the binding force of a similar
guaranty by an individual, there would seem to be no ground for doubt. But that
under this guaranty the state is bound to receive the notes of the bank only in
payment of debts in its own right.
8

The lands sold did not belong to the state of Arkansas, but were held by it in
trust 'to be appropriated solely for the use of the seminary.' The money, of
course, secured to be paid by the purchaser, partook of the same character. The
bonds were made payable to the Governor or his successor in office. And it
appears, as stated in the plea, that the money to be received was intended, under
the act of incorporation of the bank, to constitute a part of its capital. The
Governor acted as the agent of the state in making the sale of the land, and in
collecting the money; but he could only represent a trust interest. The manner in
which the money was intended to be appropriated can in no respect affect the
question now under consideration. In law, the money did not belong to the
state, in any other capacity than as trustee, and consequently the debt was not
due to the state in its own right. No court can sanction the violation of a trust,
but will always act on the presumption that it will be faithfully executed. And
this is especially the case when the trust is vested in a state, which is not
amenable to judicial process. To hold that the state of Arkansas is bound, under
the provision in the charter of the bank, to receive its notes in payment for the
Seminary lands, would violate the trust, as it would greatly reduce the fund.
Should the money be invested by the state, and lost, it would be responsible for
it. No hazard incurred in the appropriation or use of this money could exonerate
the state from faithfully carrying out the object for which the fund was
originally constituted.

The bonds were given payable 'in specie or its equivalent.' This shows that it
was the understanding of both parties, that currency less valuable than specie
should not be received in payment of the bonds. If by a contract the state was
bound to receive the notes of the bank in payment of its debts, by a contract this
obligation might be waived. And no waiver could be more express than an
obligation by the debtor to pay in specie or its equivalent.

10

We are therefore of opinion, that, as this fund is a trust in the hands of the state,
it cannot, within the twenty-eighth section of the charter of the bank, be
considered a debt due to the state; and we think by the condition of the bonds to
discharge them 'in specie or its equivalent,' the notes of the bank are also

excluded. On both these grounds, the contract set up in the pleading not being
impaired, we think the judgment of the state court must be affirmed.
11

Mr. Justice CATRON, Mr. Justice DANIEL, Mr. Justice NELSON, and Mr.
Justice GRIER gave separate opinions, as follows:

12

Mr. Justice DANIEL.

13

I concur in the conclusion adopted by the court in these causes (Paup et al. v.
Drew, and Trigg et al. v. Drew); but whilst I do this I cannot claim to myself
the argument upon which that conclusion professes to be founded. The
principles and reasonings propounded in these cases, and in that of Woodruff v.
Trapnall, appear to me to place all three of the cases essentially upon the same
platform, and establish no valid or sound distinction between them, but should,
if those principles and reasonings be correct, have led to the same conclusion in
them all.

14

Mr. Justice CATRON.

15

I concur with my brother Daniel.

16

Mr. Justice NELSON.

17

I concur in the judgment of the court on the ground, first, that the act of the
legislature of the state of Arkansas, repealing the provision of a previous act, by
which the bills of the Bank of Arkansas were authorized to be taken in payment
of the public dues and taxes, was constitutional and valid, and the defendant
therefore bound to discharge his obligation in the legal currency of the country;
and, secondly, that, if otherwise, the obligor in this case has expressly stipulated
to pay the debt in specie or its equivalent.

18

Mr. Justice GRIER.

19

I concur with my brother Nelson.

Order.
20

This cause came on to be heard on the transcript of the record from the
Supreme Court of the state of Arkansas, and was argued by counsel. On
consideration whereof, it is now here ordered and adjudged by this court, that

the judgment of the said Supreme Court in this cause be, and the same is
hereby, affirmed, with costs and damages at the rate of six per centum per
annum.

See Trebilcock v. Wilson, 12 Wall., 695.