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

read as if the Court were actually speaking of the
law now before this Honorable Court, instead Ct
the act of 1925 Z? But the Court proceeds to say
further that sit VIII be remembered that the Judges
are selected Not by name, but to be one Judge
Of the supreme Court, Chancellor and one
Circuit Jadge SIT is very possible that the trainers
Of the law did not anticipate that they would be
! time-serving. 1t is, however, high trust The
task would seem to be easy, for they were to in
quire and give Judgment or decree"
Here was q presented, in which three Of the
Judges of the State, mot by name, however) were
requested and empowered to assume authority be
cause of the urgent public necessity for speedy
determination" OF matters of importance to the
State, lin the language of the act under which this
bill is filed) And it is refreshing in these degen
crate times to recur to the conduct Of those Judges
and to contrast their distrust of their powers with
the reckless assumption of authority by Judges
IN these days, who haye disgraced their official
robes by 'becoming mere titular dignitaries upon
the chess-board, moved by the breath Of passion,
the love of gain, of power and place. and permit
ted the Judicial ermine to become the shroud not
the ornament, OF virtue, ami their dietG from the
Bench but death-warrants Of the liberties of the
people. One of the Judges of that Court always
noted for his noble Roman frmness and unsuled
integrity, to the importance of the occasion,
and speaking for himself and yet for the Court, in
the Cooper case says, when acting under the
Constitution OF my country and the equal distribu
ton OF rights becomes question, am not to for
get that our ancestors knew, before the making of
our Consttutlon that when Sidney to be tried,
Jeffries had to be selected. Weak and feeble
my walk may be in the station occupy it shall be
my endeayor to move with even-handed justice.
The franchises OF the State might become danger
GUS engines in the hands of the crafty, if Judges
could be moulded to meet the erigeIlcies. Upon
this last point am clear that the act is unconstitu
AOnal and void"
Judge Kennedy, after agreeing with Judges
Green and Peck, upon other questions says: "But
there Is another point of view in which this statute
is equally or more Objectionable than that in which
we have already considered it, It establishes spes
cia and extraordinary tribunal clothed with special
and extraordinary powers and called on to exercise
special and extraordinary jurisdiction over par
cular class OF liabilities, of particular set Of debt
ors, to particular corporation Before this Court
alone, can the defendants be sued. Does such leg
slaton harmonic with the true spirit Of our Con-
| stitution?"
1 A statute would not be Constitutional which
should select particular individuals from class or
locality and subject them to peculiar rules or i'm
pose upon them special obligations burdens,
from which others in the locality or class are
exempt. The Legislature may suspend the opera
ton of the general laws of the State; but when it
does so the suspension must be general and cannot
be made in individual cases Dr for particular local.
ties Privileges may be granted to individuals when
by doing the rights of others not injuriously
l affected. But every one has right to demand
that he be governed by general laws, and special
statute that singles his ont as one Do be regulated
by different GlC from that tChich is applied in all
similar would not be legitimate legislation,
i but arbitrary mandate, unrecognized in free
government. Special Courts cannot be created for
the trial of the rights and obligations of particular
individuals. And those cases in which Legislative
acts granting new trlS or speclal RELIEF III JuoClhl
proceedings, while they have been regarded as usur
pations of Judicial authority have also been con-
sidered obnoxious to the objection that they
undertook to suspend general laws in special cases.
COOley's Constitutional Limitations, 390-l- In
Lewis vs. Gibbs, 3 Greenl. 1926, the validity of a
statute granting appeal from a decree of the
Probate Court in particular case, came under re-
i view and the Court say: "On principle 1t can
never be within the bounds of legitimate legislation
TO enact special law or pass resolve dispensing
with the general law in particular case and grant
ing privilege and indulgence to one man, by way
of exemption from the operation and effect Of such
general law leaving all other persons under its OPP
Grafton. Such law is neither just nor reasonable
in its consequences" ask, if an appeal cannot be
granted in special case, by act of the Legislature,
1 how can an appeal writ Of error be d-11ed in a
special case or if not denied, yet hedged round by
conditions not applicable IN all other cases?
In Holden Us. James, IL Mass. 3J6, the Court de-
cded that it is not competent TO suspend the
operation OF the statute of limitations in particu-
/ lar case, and that such law is unconstitutional.
'Such law" says our Supreme Court, in the
Cooper case, "would be void because Of its partial
1 operation"
In Morgan vs. Reed ct al. 2 Head, 276, our Court
held that the act of 1856, ch IL, sec. s, which de-
cares that the title of all persons to any slave or
slaves sold under proceedings in the Circuit Chan
Gerry County Court under the act of 1927, and to
which the heirs, distributors or egatees, were not
made parties, shall be forever barred unless suit TO
recover said slaves shall be instituted within six
months after the passage of the act, was in viola
ton Of artic lie H. section Of the Constitution, and
l void. The PROVISIONS OF that article ana sec
ton substantially copied into article II, sec.
of the present State Constitution which iatt6r says
''the Legislature shall have no power 10 suspend
any general law for the benefit u any particular in
diyidual, to pass any law for the benefit Of
dividuas inconsistent with the general laws OF the
land"
Now, apply the principles of these adjudicated
cases to the act under consideration, will it bear the
test and can the Court say that it is not private
partial that it is TIE law Of Tie lana, and there
l fore Constitutional? How does this act differ, IN
principle from that under which the Cooper decis-
ion was rendered? VIII it be contended that, be
by the act is ordered that the suit shall be
| brought in the Chancery Court at Nashville, and
that that Court being already in existence, is not
created for the occasion, and hence is not special
Court? The Judges were not designated 60 llCIus-
mere in the Cooper case hut IL Was provided thai
| one supreme Judge, one Chancellor, and one Cir.
cult Judge should decide the cases. Here, it says
it is true, that the suit shall be brought in the
| Chancery Court at Nashville, and endeayOrs, il
would seem, to avoid the force of the Cooper decis
| ion, by calling it the Chancery Court, but youl
| Honor will perceive that you virtually cOmnl1TL
de TO call this Court. The act says that you
quesed TO call special term Of this Court to meet
on the FIRST Monday IN March lS1l. but the Legs
atUCe, locking upon Jhls request as aIGandat6 says
| that Immediately upon filing the bill, the CLERK
SHAH issue process returnable to this special term
and to this special term the defendants shall be re-
qi,ireS to answer. The Legislature could not tell,
at the date of the passage Of the act whether your
| Honor would comply with their "request," but
| they did know that you would obey their mandate,
and hence, without parleying, they say the CleIk
shall issue process retCTIGt,e 10 the special term,
that is, returnable to the first Monday in March,
| They regarded it a special Court. Suppose your
Honor had not called the special term, TO what term
| would the Clerk have cited the defendants? Under
this law, If is law, he Is not empowered to cite
them to any but the special term, and without the
ordering Of the Court could the Clerk call the de-
PENDANTS to answer? Mincs it as may, the act Il
nothing more nor less than this, and careful read
| ing can but impress one with il, that special
Court TO be established at Nashville, whose FIRST
| term should be held on the first Monday Of March
ISL presided over by the Chancellor OF the Nash
vile Chancery Division, with exclusive jurisdiction
to hear and determine all questions of law and fact
arising out of the rights and interests of the State
| in the Railroads, and said special Court shall be
| conducted according TO the rules Of Chancery TrcC
tice established in this State, except otherwise
| therein provided. 1t might just well have said
that the Chancellor Of this Division should hold
special Court in Nashville, at the time designated
| with the powers already enumerated. Judge Green
s3y, IN the case quoted from, that "a Court Is Ga
rected to be held at Nashville 10 consist OF Judge
| of the Supreme Court Chancellor and a Circuit
| Judge, with power and authority, upon complaint
| being made by the Bank, to hear and determine al
cases against the officers of the Bank and theil
suretes, to call the defendants before it, to hear
| idence, and to determine the causes according &c
| the principles Of Court of Equity"
Suppose, may please the Court, that that act o.
1928 had said that Chancellor Of the State or the
| Chancellor Of the Nashville Division should hold
| three Judges, would that have made it any the
| less Special Court And it bs successfully
| cOntended that because the act in the at bal
| says the suit shall be brought in the CtdRceTg
| Court at Nashville, therefore; it is not Specia
| Court, when every word and idea of the act con
| templates Special COurtT Suppose the act had
said that the Chancellor Of tlis Division should nolC
] Court for the purposes for which you are nov
| sitting, would your Honor hesitate for a moment
| to decide the act unconstitutional ? And vii YOU
| Honor permit mere verbiage to weigh feather
| in the decision OF question of this magnitude
| II not Special Court, why did the act provide thai
the causes should be conducted as Chdncery causes
and the defendants cited to appear according to thu
| pTGctice Cr ChGncey COutsf II it is Court re
| cOgnized as the regular Chancery Court, would u
l. not necessarily follow that its proceedings would
be according TO Chancery practice, as established
| by the law OF the land? The Trainer OF TINS law
seemed trying how nearly he could come 20 yioli-
ting the Constitution and yet not in his Judgment
| violate it. Or else he was in the condition OF the
| surgeon whose subject is sOrely afhlcted Win
cancer, gnawlng at the heart and he Is endeayorlns
so to manipulate the knife and turn anu tWist IT, a.
to cut out the source of disease, without staDOlht
| the vital part. As the Supreme Court say III coop
ers case, this law acts upon individual cases. ant
IS the same IN principle if law had been passe'
l i'll favor OF some one merchant enabling nun, D.
| the method therein prescribed, 10 take judgrnen
| against his debtors without the rights Of appeal,
in that case, and in this without the writ OF errO
except within thirty days. 'The interest which TN
| people have in the hank saws judge Girren ssis
sufficient reason Why the Legislature Should feel
deep soctude to its funds, but is no reason
| why they should overstep the limits of legislatiy,
authority to effect this end Nor is il any reason
| why the Court should enforce an act passed with
| out suthcient elaboration, which infringes tn,
| Constitution