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


the exclusive decision of jury, would not that bar
your Honors decision of these questions2 But
here the Chancellor is made the autocrat; the State
/; the party whose behests he is called upon to
ooey the State passes the law, and then selects its
own ofrcer with exclusive power to adjudicate and
determine all questions; the State directs its chosen
oncer now to proceed, and virtually commands
MN how to decide. Suppose that this court, in
stead of beiN held by one who is respected by the
Bar and an ornament to the Bench of Tennessee,
was under the control of some plant tool, who
WOULD bend the pregnant hinges OF the knee, that
thrlft might follow fawning then it. would not be
wonder that such haste was inaugurated by this
act; no wonder that everything should have been
submitted to his arbitrary WILL with orders to call
special term, to decide without formal pleading,
without trial by jury, and the right to writ Of
error limited to thirty days after formal decree.
suppose that some Of these attendants Odious,
py reason OF political or other supposed offenses,
now easy II would be, or would it have been, under
tins or similar act, to select some special man or
some Court presided over by some special Judge,
VINO Is known to frOwn upon such defendants, and
then, IN hot haste, require him, at a special term,
lest THE sceptre should depart from JUDAH" TO de-
clde every thing between the parties, without
jury and with right 20 a writ of error limited to
thirty days. No wonder that Judge Peck says
tnat our ancestors knew, before making our Con-
stltut1On, that when a Sidney was to be tried,
Jeffres had 10 be selected; and hence decided that
all Special Courts for the trial Of special with
out a jury, are unconstitutional. OF course, am
arguing the question upon the idea of what Leg
stature snd its Judges might do, II corrupt, and
not that the Legislature had any but proper mo-
tlyes IN the passage of the act. But if an honest
Legislature has the power to enact such laws, then
corrupt one has the power, and will exercise
1t, whenever the occasion is presented.
1T may be said, and with much propriety, that
the right OF trial by jury is taken away when it is
not contemplated that an issue should be made and
the: means of procuring jury is not provided.
Honest Judges might differ as to the prOpriety or
even possibility OF calling jury under the act; and
doubt upon point so important ought TO induce
the Judges to turn the over to tribunal where
jury cannot be denied" and to pronounce such
an act unconstitutional. Yerger, $40.
This act limits the right to writ of error IN the
Supreme Court TO thirty days from the final decree
And yet the bill seeks to make al creditors bond
holders, &C., defendants. Suppose some man away
over IN the mountain gorges of East Tennessee,
remote from the line Of speedy communication
with the Capitol, happens to be creditor or bond
holder he may never hear Of this suit or if he is
served with process, he does not in consequence
Of his isolated position, hear of the final decree
until the time has expired for prosecuting his writ
Of error. Yet by this anomalous act ne is forever
barred, and his rights forever settled no matter
how erroneous the decision of this Court. BY the
general law (sectiOnB 81 7631Sl of the COde party
Is entitled to a writ Of error from the Chancery
Court to the Supreme Court by applying to the
Clerk Of the Supreme Court within Ons year after
the decree, or by applying to the Supreme Court
or Judge thereof, within two years after the de-
cree. Now, by this ''law Of the land" which
Judges Green and Catron define 10 be ga law oper-
ating equally upon every individual in the commit
nltyb al parties have the right to that writ within
the periods therein prescribed But this act comes
along and says, ''NO, we will suspend the
provisions of the Code as to all persons who are
made defendants to this bill; as to these defend
ants they must obtain the writ within thirty days.
but all other persons and parties shall have the
writ If applied for within two years. We
desire speedy trial as to these defendants and
then quick execution of the decree; we will try
these defendants at a special term, and if they go
to the Supreme Court, they shall do within thirty
days; and if they get into the Supreme Court within
that limited period we Will not only order special
term Of that Court but command it TO take up this
case, out of its Order and contrary to the law of the
land We know the defendants are guilty-we viii
condemn without evidence and execute without an
order"
The Legislature may conclude that some man.
accused Of homicide is guilty of a heinOus murder
The hue and cry goes over the country that he il
guilty; the multitude cry aloud, "crucify him. The
Legislature catches the Juror, and Yielding to pub
lie clamOr and believing that 'the public exgencies
demand speedy trial" of the accused orders Judge
Erszerto call special term Of of his Court for the
tTia and then says that he shall try and determine
the questions of law and fact or If YOU please ex-
tends to the accused the boon of a jury trial but
cOmpels him to appeal in thirty days or be hung
and then orders the Supreme Court to hold spe-
cla term for the trial Of his appeal and to take M
the case, to the exclusion of all Others in ORDER To
nd the world, with dispatch, of a supposed mon
ster. Would not such law be denounced from one
end OF the land 10 the other as outrage upon in
dlvldual rights and upon the Constitution? How
does the principle Of such law differ from The one
we are cOnsideEing7
If the Legislature should pass an act declaring
that II all cases wherein DEGREES are rendered in
| the ChaHcsyg Court at NashuflLe writs Of error
should be prosecuted within thirty DAYS from the
final decree, or be forever barred while all other
parties migrating throughout the State, should be
allowed the time provided IN the code, will any
lawyer contend that such ar act would stand the
| test OF Judicial criticism for moment?
| The supreme Court cay, z Yerger 6Jl,) that the
right OF appeal or writ OF error il only statutory
1 because v-ag rtia1 tn. ~
debtors OF the State Bank, while allowed to all 9TH
ers, the Court held unanimously that the act was
unconstltuuonal outside of any other question in
Nolyed III the case They said that the general law
gave the right Of appeal, and that the LEGISLATURE
could not say that while al others had that right
yet that the debtors Of the Bank should be denied
it, Then, how il be held that this law is the law
Of the land, and that the Legislature can say that
Few special parties shall not have the writ of error
| IN common with the people of the Slater We NAV
| coneede that the Legislative Department has the
power to say that IN no shall peVty nave the
writ Of error unless applied for within tllrty DAYS
after final decree bu, II certainly has not the power
TO single out few particular persons or iti1ants
ana say that they alone shall be required =, apulv
FOR the wit within that time, while all others are
allowed the time prescribed by the general law
This principle WAS expressly decided in IL Mass
| case, and our Supreme Court & Yerger 270,) say
that they accord their entire appreciation to that
decision Are not these defendants and these
alone, deprived Of the benefit of the writ CT -Erar
as prescribed in the code, and cCpeIied 10 resort
! II 50, il tbs language Of our Supreme Court, e
Herger 269) they care deprived OF the benefit of
the general laws and such act Is unwarrauted by
/ the Constitution and is void" And Judge Coo
ley has it, cit can never be within the HOUNDS Of
legitimate Legislation to enact law or lass a re-
solve dispensing with the general law in particular
case, or granting privilege and Indulgence to one
man, by way Of exemption from the oneratiou and
effect Of said general law leaving all other persons
under its operations" Upon a review Of this whole
statute, not apply to it the very language Of
| the Supreme Court il the Bank case and say that
sit establishes an extraordinary tribunal clothed
with special and extraordinary powers, and called
upon to exercise special and extraordinary iurs-
diction over particular set of Debtors to raI.4L-
ular corporation" and therefore : I.HeanstItu-
al and void?
| IetUs syegest another idea as we advance The
law provides, Code, sec. ISL, and History Of a
Lawsuit, sec. BY, that corporation must be sued
at its residence and that is where has its chief
| office. 1t must therefore be sued in that county
unless 1t has an agency or Office IL luJre than one
county and in that vasJ actions growing out Of or
connected with the business of that Office or agency
may be brought in the county III which such office
agency is But this act gives this Court the power
to hunt up these defendants, from Carter to Shelby
! and drag them from their homes and places Of
business to the State metropolis and compel them
hele to litigate their rights before a Cnr1 10. OF
their selection choice vhie the Lii OF complaint
shows upon its iaee that some Of the defendants
| have not their residence or place Of business, OF
| office or agency within Davidson county. This is
! but another evidence OF the wholesale reckless
character of the act under consideration.
But submit that the act is unconstitutional, be-
cause it inpairs the obligation of a contract Eay.
! ing already consumed too much time NV discus.
sion of this point shall he tIiet. shall leave the
elaboration OF sf.is and some other points of the
demurrer 20 my able and learned associate counsel
1t is now too well settled to admit of discussion,
that a charter Of incorporation is a contract and
that any statute altering it III any material respect
without the consent of the corporation, is law i'm
pairing the obligation of contract, and thCzutult
/ void. The power of the Legislature TO change
modify, enlarge or yestIAln public corporation, Is
limited to such measures merely auxiliary t.
the main design Of the corporation. 1t cannot re-
peal impair alter the rights and privileges con.
| feTed by the charter, against the consent cTt
without the default Of the corporation Ju.icially
ascertaned and declared. legislative alterations OF
the charter of private corporations like these under
investigation, when merely auxiliary and not fun
| datnental, may be accepted by a majority Of tbs
| stockholders, and such acceptance viii bind IL.
| whole; but if such alterations arr fuIGanentsi
radical, vital the aCcSItaEcC must be unanimous
| BIZ tie stCcEhOldeIs. Wheaton, 46S. COldweIl
| 46S. l Meigs' Dig. $50.
| These Railroads were brought into existence 10y
the act of 1852 CHI I5l. AT that time the State va.
| without these improvements, and in order to have
| them throw their iron arms across its surface,
| system was inaugurated, whereby the State yr,.
| posed to the roads to loan them each rs credit Il
| the form of coupon bonds, having not less thar
thirty years 20 nl8tUrC and payable at such poiu;.
panY might designate, bearing interest at six pei
| cent. per annum, payable semi-annually. The ac
provides for the issuance Of said bonds from tim,
| to time as the work progresses on the roads, anC
that the bonds, when issued, shall constitute heI
| upon much of the road as may then be prepar1l,