State of Arkansas vs. Little Rock, Mississippi River and Texas R'y Co.
First—That the bonds were issued without authority of law, and are null and void.
Second—That if valid, the bonds were not a lien upon the road and its property, to secure the payment of the bonds or the coupons attached, but that the only right which the State has is to sequestrate the income and revenues of the company.
The main question to be determined is as to the validity of the bonds to which the coupons (the payment of which is the object of this action) were attached; because, if the bonds are void, the coupons for the payment of interest are also void. Our first inquiry, therefore, will be directed to the questions: Are the bonds valid? Had the State of Arkansas power, through her Executive department, to issue them?
It may be as well at once to dissipate the assmnption, too frequently but thoughtlessly indulged, that the power of a State, through its Legislative department, is omnipotent. Such is not the case. There is, so to speak, a power behind the throne—a sovereignty higher than State sovereignty. To the people in their sovereignty belong the rights of eminent domain and of taxation. They may delegate these rights to a sovereign State, or they may retain them to be exercised through the law-making power, upon terms prescribed by the State Constitution.
There is no subject which has been held more sacred by the people than that of taxation; none that has been guarded with more vigilance, nor for the preservation of which greater sacrifices and perils have been incurred. Influenced by this feeling, the people of Arkansas, when they framed their Constitution of 1868, ordained, section 6 Art. x, "The credit of the State or counties shall never be loaned for any purpose without the consent of the people expressed through the ballot-box."
The ground of objection to tbe validity of the bonds is, that the State attempted, by legislative enactment, to loan its credit
