Daily national Democrat., 1859-05-01
supreme Court Decisions.
APRIL TERM, 1859.
e., FRANCISCO AND MARYsvLLE RAILROAD,
CAV ',., RpANcH TURNPIKE COMPANY.

Tts oh
,,rnty from subscribing the sum of $20000t
~ tbc eapital stock of the San Francisco and
SJorrsyilie Railroad Company, a corporation
flrn,ed under the general law concerning
nnorotions. BY the act of the Legislature
So,iroyed April 2S, 1857, Statutes Of 1857
fao6 it was provided, in substance, that
ihis Board should submit at the next general
Lection to be held for county officers in Yuba
a,nnty to the qualified electors of the coun
=, the proposition for this Board " to take
md subscribe two hundred thousand dollars
70 the capital stock of any railroad company
for the purpose of constructing any railroad,
Lv which a railroad connection shall be
6rmed between the city of Marysville and
either the city of Benicia or any point on
4be Sacramento river at or near Knights
Ferry or Sacramento City"
The second section of this Act provides
,be time, manner and other machinery of the
election. The third section declares that il
the proposition be carried by the popular
vote the Board of Supervisors, in the name
of the counny of Yuba, are empowered to
take and subscribe for the use, benefit and
advantage of said county, to the capital stocl;
of any railroad company, for the purpose
mentioned in section one of this Act, stock
to the amount of 100000, and therefor to
pledge the faith of said county of Yuba for
the payment of the same in the manner there
matter provided. BY section five, commit
tee, constituted by section four, shall make
the subscription, conditioning the same to be
paid in the bonds of Yuba county;" and by
section six it is provided when and in what
manner these bonds are to be issued.
The San Francisco and Marysville Railroad
Company was incorporated on the 2Sth day
of October, 1851 for the purposes set forth
in their articles of ass1ciaton-that of con-
structing, owning and maintaining railroad
from the city of Marysville, in the county of
Yuba, through said county and the counties
Of Suffer- Yolo and Solano, to point on San
Pablo Bay, near Vallejo
The vote on this proposition was in favor
of the subscription.
This is case of much public Importance,
and we are requested by the learned coun-
sci on both sides to decide the main Gues-
tons involved, without reference to techni
APPOINTS The questions were before us at
the last term, but we declined to pass upon
them, for the reason that the proper parties
ppon whom our Judgment would be binding
we're not before the Court. We thought it
bad precedent to consider grave questions
involving important interests, in the absence
Of parties really interested, since, though in
the particular case there was no suspicion of
such design, such precedent might allow
any suitor to bring up mere speculative ques
items, and bring before the Courts titles or
claims of third persons with which he had no
concern, and which might be decided in the
absence of. and without hearing by, those
who were to be effected by the adjudication
We do not see very clearly that the pre-
sent plaintiff can interfere by injunction and
restrain the performance of a ministerial du-
ty cast upon public officers by the law, mere
" upon the ground that the effect of this
might be- at some future time if certain
other things were DONE to subject his prop
erty to taxation. But as the proper parties
are before the Court We waive this inquiry
merely alluding to it to show that it is still an
open question, not passed upon or foreclosed
by this decision.
Two points are made by the appellant
l. That the Board of Supervisors he no
authority to subscribe TO the capital stock of
the San Francisco and Marysville Railroad
Company, even though the Act of the Leg
islature we're unconstitutional
.. That the Act is unconstitutional
The last proposition was the one mainly
argued at the bar We shall consider it first
1t is not pretended by the counsel that
there is any provision of the Constitution
which specially interdicts the taking of stock
in railroads by ccunty; nor that there is
any provision which fort ids this mode adop-
ted by the Act of 1857, of ascertaining or
giving effect to its will if it so desire. But
it is argued that "such power is withheld
by the spirit, meaning and true intent of the
Constitution" The generality of such a pro-
position creates an instructive suspicion of
It's soundness We do not deny that there
may be a declared policy in a Constitution,
as in penal law, or system of laws. and that
1t is not within the power of the Legislature
TO eontrayene this policy, although the Act
do not oppose the express language of any
clause Of the instrument. But this policy
must be manifested by the terms of the Con-
stituton, fixing with precision the particular
rule and not lie gathered by general infer
ence, or vague and uncertain speculation of
what the trainers of the Constitution designed
but failed clearly to express Mr. Justice
Daniel of the Supreme Court Of the United
States, took occasion in a recent case, to dis
approve of this course of reasoning, and re
iaxlng something of the austere dignity of
that august tribunal remarked, that, if the
Judges were to adopt the notion that law
might be declared unconstitutional because of
Its supposed repugnancy to the spirit of the
Constitution. they ought to employ rapping
medium to procure authentic revelations from
that spirit We expressed our views of this
mode of constitutional construction in the
ease of the People ex rel Brodie " Weller,
and do not deem it necessary to repeat here
what we there said
The argument more fully developed by the
learned counsel, seems to be this The State
Is sforbidden by the Sth Article of the Consti-
tuition, to create debts over 100000, or to
loan its credit, etc. the counties are COM
ponent parts Of the State the State cannot
authorize the creation of this debt by its sep
arate subdivisions any more than by itself as
whole. If this argument were sound, it
would seem to follow that all Indebtedness of
every sort, incurred by all the counties Of The
Slate-the State having exceeded its privi-
leged limit void. But the radical error
oI the argument is, that the provision only
aPphes to the State as a cOrporatiOn-as a
political sovereign, represented by her law.
naklng power AS such corporation, or SOW
efelgn being, she has no subdivisions, for SOW
yyFelgnty is not divisible. She may have po-
Aueal subdlvisions-that is, she may permit
portion OF her powers of government to be
exercised by local agents, who, of course, are
ner s,.oordinotes. But politically consider ed
geograPnsal % or political departments are no
more Ine ot@te. or part of the State, than
Tt lnap lahd or his agent is part of himself
Inc intent el tnls clause of the Constitution
pam enough; 1t was designed as check
on legislation, and such legislation as might
create a charge upon the property of the en-
5Fe state But IL Is not only unwarranted
gy Tue WORDS oi the Constitution to suppose
that counties were included in this inhibition
but it might well have been foresecn that
The provision would prove extrnnnnl,.