The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1870-06-06

in another, it is difficult to see how it can do
so by circuty of city council. And the Su-
preme Court of the United States, while affirm
ing subscription under authority to road
adjacent to town in Vermont, and, therefore,
q highway within the office of its municipal
council, expressly disafllrmed this municipal
power.
But however this may be, 1t cannot do so by
special act of legislation. There are but two
cases in which the State can touch, directly,
the property Of individuals In virtue of its
powers of eminent domain, itmay take private
property for public uses; and in its Office of
providing for the peace, order and well-being
of the people, it may take the fund, necessary
to that object, by taxation. But this private
property is not so taken. sit is not taken to
of eminent domain; that is only to public
use, which this is not, and even then there
must be just compensation, which shares in
these roads, if they thereby become the prop
erty of citizens in exchange for these SUBJ
scriptlons would not be. Nor is 1t taken in
taxation. A tax is O tribute eXacted by the
State to its support upona ratable assessment,
which this certainly is not, and by special act,
therefore, as this, in af1irmance of void SUBJ
scription, would be, the State may not so In
trude on individual property. If it be the
creditor of q citizen by the highest possible
security, it may not help itself, but must sue
upon the debt, as must any other Individual" }"
The writer concludes this branch of the SUBJ
ject in these words:
It is said irregular acts of municipal bodies
have been confirmed to charge individuals,
and the case OF Thomson vs.. Lee County,
Iowa, 8 Wallace, 327 is cited to the point.
There the council was authorized to subscribe
on forms, which were not strictly pursued, but
the Legislature approved the act, and it was
decided that after that, 1t was as II originally
binding. But here the question Is not OF the
irregular execution OF power, but OF the ex-
istence of the power and the difference Is vast.
The courts carry out the imperfect acts OF
trustees In execution Of power to sell,
but was 1t ever heard that court did
carry out the act of a trustee who had no
power to sell f? Principals do often confirm
the acts OF agents, and are as bound as If the
act were within the powers originally con-
ferred. But was it ever heard that principal
by confirmation could give validity to the act
OF his agent in binding any other man? So,
States do often confirm the acts Of municipal
bodies within the Office OF their general or
special powers, but 1t was never heard that
State did by er post .tdcto law rlghtfnlly con.
fer an Office or special power on municipal
| body or other corporation. To that extent Is
| no decision have ever seen, and can the State,
by recognizing, in this assumed character Of a
| corporation, number of persons, give validity
| to the powers they have assumed 10 exercise
| If without charter they have appropriated
property to o railroad, for instance, does re-
cognition make valid such appropriation
II when done the act were trespass or q
crime, can the. State, BY, recognizing the agent
as a corporation, condOne 1t? Between the
rant of regularity and the aoant Of office, in the
performance of an act the difference Is distinct.
What IS irregular in the performance, OF In
Office. may be allowed by confirmation; what
| is without the Office of an agent is without the
capacity of confirmation, and Willie the respon-
sibility of an act may be assumed by any one
who chooses to do so, whether there was orr
uinal authority or not, II it were without the
| office of an agent, it Is not incurred by conf1r
nation of the agency. BY confirmation,
| therefore, these subscriptions are not binding.
That they are not so by action of the court, will
| hereafter be shown.
THE DECISION OF THE SUPREME COURT.
In regard TO the effect Of the decision Of the
Court of Errors of this State in the case oil
Copes VS.. Richardson, the writer argues thai
the court only decided that the confrmatory
act precluded the State from forfeiting the
city charter on account Of the acts of usurpa
ton which the Council had committed. The
writer continues:
But, 1t is said, the court did go further, and
decide, not only that the act of confirmation
was constitutional, but that there was original.
| ly the mower in the Council under the charter
to make subscriptions. True, but these are
questions not at ISSUE The act of the confir.
nation was an estoppel to the State, whether
constitutional or not: nor, so estopped, was
there room for the State to question whether
there was or not the power In Council to sub
| confirmation, IL had been idle TO Inquire whe
ther, but for that, it would have had the right
| to do so. The utterance Of the court to othel
questions, therefore, not In issue, was not {
| decisioH; but at best, was but the expression o
opinion by the Judges; nor, on point not In
issue, and not supposed to have been consider
| ed by the court, was 1t more than the opinion
of that single Judge who made it, and there is
much to weaken the force OF 1t, as just expo
| sition Of the law.
The plea that the act Of confirmation is but
an affirmation by the State of a municipal act
and does not impair the obligation of any con,
tract, is not sufficient to give validity to voit
subscriptions which took the property of clti'
zens, without their consent, to foreign rail-
roads.
In that sense, it was more than the approval
OF a municipal act; it was the authorizing o
the investments OF individual property by
Council 10 foreign objects. 1t were mockery
or madness to call this a municipal act. 1t Is
not naturally within the office any city gov
vernment; in this age OF reckless legislation
it has never yet been made so; and 1t Is only
in the wantonness of abritary power that such
IN office can be constituted to the ruin oil q
people
only be unconstitutional for violating con
tracts There are many muniments OF rights
and liberty besides that. We may not be dis
turbed in person or estate but by law, nor car
our estates be taken to public uses without
lust compensation. Could the learned justice
have intended that il the State could not breat
q contract, it could make contract? That Il
could put the citizen into a subscription t(
which he was not bound, or do SO without tax
ing his property to pay for 1t, or that aSalns
that most understandable form OF eXactlon TIT
citizen has not constitutional protection?
The original power OF Council is found il
their authority to make ''others by law O.
regulation that shall appear to them necessary
to the security, welfare and convenience o
said city, or for preserving peace. order ant
good within the same"
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