Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-07-13

! pany, aad the Court shall try the cause, and give
Judgment for whatever amount the company owes,
and If necessary, put the road into the hands Of
receiver and order q sale OF the road and al tne
property and assets attached thereto or belonging
| 10 the company.
Here the State by this charter, loans the COM
pany its bonds maturing in not less than thirty
/ years, the interest payable semi-annually. The
company its part, gives the State lien to secure
| the payment of the bonds with interest, and on
failure pay the interest the State has the right to
place the road in the hands Of a receiver and run
the road till the interest ia paid. But it has right
to sell the road until the maturity of the bonds and
| failure to pay them provided in 9TH section.
The It'll section gives the right, in of failure
to provide the sinking fund, to appoint receiver,
az In the 9Th section but the 9th section the only
that gives the State the right to sell, and that
expressly says that sale shall take place failure
to pay the bonds at maturity. True, it does not say
that the sale shall not take place TIL the expiration
of thirty years. but the expression of one thing is
the exclusion of another. If the act intended that
a sale should occur sooner than the date of the
maturity Of the bonds, why did il not say so ?
Here is say the least of it, negative pregnant,
which is equivalent TO affirmative assertion that
a sale shall not be forced till the bonds mature.
But it is argued that the State, by the 18th sec
ton of the General Railroad Law reserved the right
to pass all such laws it deemed necessary to pro-
tec its interests and to secure the State against any
loss in consequence Of the issuance of the bonds.
Suppose it does, it is with the proviso that such
laws do not interfere with the vested rights OF
stockholders. Without this prOyisO, does the act
give the State the right to pass law impairng the
N~-%
private corporation and then say that it reserves
the right to pass law giving to the State all the
property OF the corporation without compensation,
upon the failure Of the corporation to do this or
| that, simply because the State may think such
course necessary to secure itself against loss Can
il reserve the right to dvest or impair vested rghs
or to pass a partial law unconstitutional
Time Is the essence of this charter contract.
The company bcaIne entitled to a vested right I'M
der that charter. Suppose the railroad act had
provided that these companies in all suits by and
against them, should be denied the right OF trial Dy
jury would the Court undertake to hold that such
reservation bound the companies or would not the
Court rather say that such reservation is nulity
and that the Legislature cannot reserve to itself the
right to pass unconstitutional act?
Mr. Cooley, (COnst. Lin. 55o,) says that seven
provision in corporate charter, empowering the
Legislature to alter, modify repeal it, would not
| authorize subsequent act, which, on pretence OF
/ amendment or police regulation, would have the
effect 70 appropriate a portion of the corporate
property to the public USE" Thus clearly showing
that the charter is the contract conferng or vest
/ ing certain rights, and that the Legislature can
only act in reference to the charter strict sub
| ordination to the rights previously acquired.
| Can this Court conceive for moment that the
stockholders Of these Railroads, dreamed
that they would be dealt with il any other wy than
as provided for in the 9Th section, until after the
| maturity OF the bonds, and failure to pay them?
Ii the Legislature had the right to pass TINS act Of
Dec. - lolu, at the date Of its passage, they could
have passed II within year, six months or ouc
month, after the act of lo2 least within that
| time after the company commenced operations I'M |
~ OF Davidson or any other stockholders would |
have subscribed for stock il thew had not !
thought, from the provisions of the law OF their
charter, that they had thirty years in which to nav
these bOnds2 Tins being the contract Will ne !
Courts of the country hold that the Legislature can
so far interfere with rights acquired hereunder |
as to declare that III view OF the urgent necessities
Of the State the roads and the interests OF stock
holders shall be sold out for less than mess of
pottage, and not one dollar ever returned to the
| stockholders III payment of the money they have
adyanced2 And that all this shall be done Dva sre
cial Court, with special exclusive Jurisdiction and
out OF the ordinary course Of Judicial prOceeding2
May not tins Legislation be but the beginning OF
the end that lies hidden in the distant future? To-
day and for the past few years. Courts are and have
been making decisions al which the Bar and Judi
| clary OF the country would have stood aghast a
quarter Of century ago. But the innovations OF
such decisions have been endured, till We are al
most recognizing them as the law. and
they have long since ceased to startle us By their
nOFeiy or InonstrOslty. May 1t please tine Court
what Is the history OF the institution Of special
tribunals and Of special forms OF Judicial proceed
ure manufactured to order to meet emergencies? |
Do they tend 70 promote the public and private in
terests Of the country, they not alw.vs the
last resort Of despOts and tyrants whose only paus-
Idle plea Is public necessity? Let the history OF our
mother country attest without going farther back
than TO the times Of James theS econd Ma-aulay
IN his list volume says that these Judicial sstribu
mails, so-eaed, Afforded protection to the sub
jet against the civil and ecclesiastical tyranny OF
| thai period The Judges Of the common Law, hold
ing their situations during the pleasure Of the
KING, were scandalOusly obseqUiOus yet 0bsequious
as they were. they were less ready ana efficient in
| struments Of arbitrary power than a class OF
Courts the memory Of which Is still after the lapse
OF more than two centuries, held IN adherence bv
| all mankind. Foremost among these Courts in
power ard i1iamy, were the Star Chamber and the
/ High Commission, the former political and the
/ Latter religious inquisitiOu. Neither was a part
i Ot the old English Constitution, nor recpuniged
| afterwards, As even q remote descendant Guided
chiefly by the violent spirit Of the head OF ts o
eInIleht' they dlsplayed rsIacgty, a violence,
| 4lSLaLt energy Which had been unknown to any
| former age The government was able, through
/ their fundamentally, to the, imprison piIIo-y
ana mut.late, without restraint. Everything that
opposed Tue demands OF the State sven. away
| by these special tribunals, established u4on The
pretext OF the exigsncies Of public necessifv And
what Is II that public necessity in the eve OF rama
| elous power, does not demand? Neither age nor
sex was spared, nor did the plea or the uroof of in
nccCnce avail for Judges were made and their sit
tngs ordered, to meet the occasion, aud sacrifices
had TO be made because the state demanded them
| monmouth threw himself at his fathers feet
| and found mercy, but soon gave new offence and
thought 1t prudent TO go into voluntary exile Is
| sex perlshed by his own hand in the tower Rus
sell, VINO appears to have been guilty q no ofense
falling within the definition OF treason aud Sid
hey, OF whose guilt nc evidence could be produced
were oehealed y = lance of law and justice. Rus
sell died with the f0rtitude of 4 Christian sidney
Van tAe iOrtltude OF stole. Some active pOliti-
| clans OF meaner rank were sent TO the rallows
| Many quilted the country. Numerous prOsecu-
tons for msprisOn Of treason and conspiracy we're
Guilty by Tory icyal iltris, and ctgor5'rs punish
nte'fs ie-e inflicted By coUrtiy Judges. With these
ellnlnal proceedings were Joined civil proceedings,
| scarcely less formidable. Actions were brought
| against persons for defaming those in authority;
and damages tantamOunt to 4 sentence Of perpetual
| imprisonment were demanded by the plaintiff and
without difficulty obtained. Marching in the foot
steps Of these special Courts, the Court If Kings
/ Bench, even pronounced, by transceudins its pow
er, that the franchises Of the city Of London were
| forfeited to the Grown, Flushed with this greet
| victory, the government proceeded to attack tie
constitutions Of the corporations governed and
| tr0ted by those not enjoying the smiles OF the
| Prince. BurOGgh after burOugh WAS compelled %
surrender its chartered privileges. The spirit OF
these tribunals seized upon others that hitherto
breasted the Storm till at-last tbs states demand
had only to be made known 10 the Judges by a nod
IN order for il speedy execution. These pro-
ceed4Lss,' says the historian, 'hOwever reprehens-
bic, had yet the semblance OF legality" and from
tlls short extract from the history of England dos
| 1t not seem that Macaulay writing the history
Of this country for the pst decade instead of writ
ing that Of the bloody reign Of James the Second?
Ii such Is the history of the evils in those countries
in which such legislation and such tribunals have
shed their influence, is time for TO pause and
70 consider that if would avoid their msf0r-
tunes we must shun the rock upon which they
| split.
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