Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1866-04-25

n had no validity until the governor hs
% performed his duty, as required. b
+ such clearly was not the intention Of Il
q Legislature, nor such the reading Of Il
y act. IL is the province OF the Legislatu
/, 10 make laws, and Of the Executive
!, execute them. These powers cannot
/. appOrtiOned one to the other In m
: opinion the Legislature performed j
} duty and left nothing undone to NAL
= the grant complete. The duty Of Il
: governor under the act 70 subscribe f
= the stock, and 10 make a deed TO Il
e lands, instead Of being conditions pr
= cedsnt TO be performed before any rigl
2 vested In the company, were but plai
, duties imposed upon him by the COnst
tuition 10 take care that the laws
faithfully executed. Bot the decisio
{ Of the Supreme Court of this State in ii
case of Fletcher, ct al. VS.. Ford 10Th Ark
= upon a case almost analogous Is concll
sive upon the question. The questio
therein decided, was as 10 the time whe
the act Of Congress, of Sept 2Sth, lS5
took effect. The first section Of the aC
, granted to the State of Arkansas all IN
swamp and OverfloWed lands, within he
limits for certain purposes mentioned i
the act. The second section provide
that the Secretary Of the Interior shoul
make out an accurate list and plats @
the lands described, and 10 transmit tn
same 70 the governor of the State, and a
the request of the governor, cause q pat
ent to be issued 10 the State therefor, an,
that on that patent the fee simple 70 tn
lands should vest in the State, subject Z
fthe disposal Of the legislature. Certainl-
by the terms OF this act, the grant to tn
State was not so clear and explicit as II
that Of granting the lards 10 this Com
paHy. There ID provides that when th,
governor should request a deed, and th,
deed should be made, then the fee simpl,
title Of the lands should vest in the State
Yet the court In that case says that tht
act was a present grant vesting in ths
State, pT0pria CigOre from the day Of il,
date tide, 10 ali the lands of the particu.
lar description therein designated
wanted nothing but the definition OF
boundaries, 10 make it perfect, no doubt
| can be entertained, etc.
The object Of the second section was
1 not 10 postpone the vestiture Of title IN
! the State until a patent should issue,
! but was to provide for the ascertainment
Of boundaries, and to prevent 4 prema-
! ture interference with the lands by tile
State legislature, before they were so
designated, IS 10 avoid mistake and COZ
4 fusion. Where land is granted by leg
[ islative enactment, and the grantee ss
authorized to demand a patent for the
land, his title is as much vested as If he
had the patent, which is but evidence Of
his title.n
His EXcellency was member of the
court that pronounced the opinion from
which the foregoing is quoted, but in the
responsibilities, now surrounding all Of
must have overlooked the fact that such
a decision had ever been rendered by the
highest judicial tribunal Of the State,
when he declared that a subscription Of
stock by the governor was q condition
precedent before even an inchOate title
or equity vested IN the railroad COM
pany, the legal title still remaining IN
the State. But the Supreme Court de-
ciares taat q Legislative grant conveys
The full title, as much as ii The company
had q deed or patent, and that 2 deed or
patent would convey nothing, but would
be an evidence Of title. NJ failure on
the part Of the governor TO perform his
duty under the act can defeat the grant
There Is but one mode by which he could
have defeated it; this is by veto Of the
bill. Neglect on his part TO enforce its
provisions certainly cannot destroy its
validity. In my opinion, the title OF the
railroad company TO all Of the swamp
lands confirmed TO the State in the
Swamp District il clear
and indisputable, good both in law and I
equity, and in ali laws, human and di- 1
vine, and that the company possesses sn I
equitable title 20 all the swamp lands in /
said district, unconfirmed, which becomes I
B perfect title to all the swamp lands in |
said district, uncOuGrmed, upon the as 1
and the definition Of their I
If the grant is a perfect /
1ne, and OF which there can be no ques-
ion, and the title Of the railroad COM /
Dauy good one, Of which there IS no
iOubt, could the convention repeal the
aw and divest the company of its rights? ? /
might content myself upon this branch
If the question by simply quoting from
Jov. Reotor's recent message 20 the Leg
stature at its called session. In speak
ng Of the powers Of that body lie says:
"The powers delegated to that body
vas 10 take the Stale .Out Of the Union,
InneX il 10 the Confederate States. lesv-
ug the State government iHtact; all else
vas usurpation. Any legi-lation conse-
luent upon the change Of Government,
belonging to the Houses Of the General
Assembly, and to the Executive
0
ion Of that body exercising legislative
functions, was necessarily void, and Ger
ainlv could afford the Executive no
,retext TO refuse 10 enforce o plain statu-
ory law Of the State. But put it on
broader ground; COncede that the con-
'ention was clothed with full powers 10
'hange the Constitution Of the State, re-
model the government, and exercise full
legislative powers, would it have pleased
hat power to have deprived the railroad
Ompany Of its rights in these lands, with
.ut its consent? Most certainly not. Bv
,ur bill Of rights," and which Is un-
no law impairing the obli-
.atiOn of contracts shall ever be made.
30 argument is necessary to show that
his grant is, and pBrtakes OF all the ma
ure and incidents Of 8 contract between |
he State and the railroad company, as
much so as to the selling Of any portion |
# the State lands 10 any citizen Of the !
'Jate, and making TO him deed there !
lr, is contract. The decision Of the
supreme Court Of this State, iu the case
f the State of Arkansas vs.. County
'0urt OF Crittenden county, 18th Ark
60, conClusively establishes this position.
n that case the point was, whether the
tate could levy a tax on the swamp q
. I
them from taxation for ten 1
ears was in force. The Supreme Court
eld that it was a contract between the
and the State, and the exemp-
ion by law Of said lands from taxation
)rten ears WEs part the contract, and ]
be act Of the Legislature levyiug tax
n said lands before the expiration Of ten |
ears, Twas unconstitutional null and
old But il may be said that the con- {
eutiOn had the power Of abOlishing the :
bill Of rights" Whilst deByirg this.
oppose il was true, at the time of the Z
assage Of the ordinance Of the cOnven-
ION, referred TO heretofore. Arkansas
-as a member Of the Confederate States :
and had adopted its pro- y
isional Constitution. That Constitu-
ion provides that no State shall pass
Ey lCW iulpQiripg he obligation of con-
-Gc,s. That Constitution was the su-
rene law Of the land; and although the
onvention may have possessed the pow I
rs above enumerated, yCj its poWers l
aust have been, and were subordinate to q
be Constitution Of the Confederate States I
len existing. In case recently decided
Y an eminent jurist Of North Carolina,
.hiei Justice Pearson, the power OF a I
tate % pass a law under anv circam-
rances fmpsiring the Obligation of CON (
raCt was most SSiy reviewed, and the
over most clearly denied. IL that State {
uer It's severance from the old Govern
lent, aud before it became member
{ tho Confederate States by the
doption Of Its Constitution, p
.ay law WA passed, acd the court held {
bat u nothing 10 the State Constitution
ad Prohibited, thc adoption Of the Con-
utution cf the Confederate States after
be passage Of an act, would have ipso ,
1ctO, annuiled and rendered void, so far
S il was opposed to and IN conflict with
he Constitution of the Confederate ,
tatcs. So much then, for the power Of
onveurion to interfere with this prant. !
am Of the opinion that the tile Of the
abroad company % these lands en- !
raced IN this grant Is clear and indefea-
cie beyond The reach Of the Legislature,
r OF the convention, and in this opinion ,
am sustained by some Of the best legal !
llent in the State.
In this connection we deem il not in
70 present some Of the most
rOminent and obvious Inducements that
rye the building Of this road, and point
out gs al enterprise more promising Of
rOntable investments than any other
'hicR this country can aff0rd-Rs one
lat commeEds itself most favorably TO I
le consideration Of capitalists who wish
) make safe, judiciOus and accumulat-
II investment Of their means.
In the first place, the projected line of
ais road from Eunice on the Mississippi
yer tc Camden on the Opachita river,
-averaes the richest agricultural section