The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1875-02-11


Editors Democratic Statesnaa-In reply
10 your request for e statement of the facts
in the case OF the international Railroad,
and my views on the question, end as to
the constitutionality Of the law, l submit
the following: The bill now before the
Legislature 10 adjust by compromise all
matters of subsidy between the Interna-
tiOnal Railroad and the State Of Texas be-
came, and is, necessity, from the follow
ING facts: The Twelfth Legislature passed
an act, entitled San act TO incorporate the
Railroad Company, and 10
provide for the aid Of the State in con-
structing the same" Under this law the
company constructed fifty miles of road.
Thereupon it applied to the proper officers
for the bonds granted by the law. The
Governor and Treasurer signed them, but
the Comptroller refused to countersign and
register, as required by the law. A petit
ton for indndamUs against the Comptroller
was fled in the district court for Travis
county. He answered through the Attorney
General, making two issues: first, the con-
stitutionality of the original act; and, sec
ond. that fraud was perpetrated in procur-
ing the passage of the bill by bribing mem
bers of the Legislature.
On lneSc lSSueS TIC COMPANY hcnb "
trial
The district court decided the act to be
constitutional, and the jury returned a YER
dict for the company. a judgment was
entered, awarding the 1laaddmus. From
this judgment the Comptroller appealed to
the Supreme Court.
In the Supreme Court, Attorney General
Clark insisted, on technical objections, that
49,
officer on which the case went off, without
its merits being heard.
By reason of the non-issue Of the bonds
the construction of the road has been de-
layed, and the company seriously embar-
raised, because the financial arrangements
of the company had been to a certain de-
gree based on the anticipated reception and
use of said bonds.
The company has, in good faith, con-
structed first class road through a country
part of which does not afford paying
patronage.
If the law which granted the subsidy be
constitutional, then the terms of the pend
ing bill are of the most liberal nature to-
ward the State, and should receive the APP
probation Of all men who desire the we'll
being of the State in credit and improve
ment.
TO show that the law is constitutional,
the following authorities and argument, as
used and made by Messrs. Walton, Pease
and Bell, in the Supreme Court, are repro
duced:
The cOnstitutionality Of the law was
raised by demurrer, which set up several
grounds, the principal of which were, first,
that the Legislature had no power to pro-
l., e. g. II
could not tax to make present to private
corporation.
1t is a well settled principle that the
whole law-making power of State is
vested in the Legislature, which is omnipo-
tent unless restricted by the express or I'M
piled provisions of the State or national
constitutions; and that the power of the
Legislature to impose taxes for public i'm
pr0vements and public objects, such as rail
roads and canals, is only limited by the
Constitution in express terms or by implica-
ton. Potter's Dwarris on Statutes, 80, GO,
Ais, 416 and All; % New York Rep, PAT
26 New York Rep, 467; 43 Barbour's Rep,
54; Pierce on American Railroad Law, 108
100, also 10 and III; 81 Penn. Rep. 15S
roe, %; 4 COmstock, 426 and 427.)
object for which the fund is raised, or the
ultimate use to which it is to be applied
and not upon the character of the person
or corporation whose agency is employed il
applying it. (POtter's Dwarris on Statutes
417.)
To determine an act of the Legislature
with reference to taxation for public i'm
P a.,--..------it -nuhlic object to be uncen
StltutlOnal, we must see the pTUuTDTU101-----.
tanned in the Constitution in express terms
or by necessary implication from its terms
Potter's Dwarris on Statutes, Ala, 415; q
Wendell r., 563; 1 Hill, 324; 10 Wendell
r., 8; 10 New York r., 445.)
There is no prohibition in the present
Constitution of Texas against making grants
for works of improvement, or any works O
public utility or convenience. for the ust
and benefit of the people, unless, as con
tended by some, the sixth section of articl,
ten prohibits the grant of lands except fo
the objects specified in the Constitution
(but this prohibition has been removed bl
an amendment). Indeed, the Constitution
contemplates that such grants will be made
for in article twelve, section six, it provide.
that no appropriations for internal improve
ments shall be made without the concur
renee of two-thirds of both houses of The
Legislature.
La this regard the present is similar to the
Constitution of 1916. Neither contains
special grant or a prohibition on this sub
ject, except as above stated. Under the
Constitution of 1916, sixteen sections o.
land per mile were granted and donated tt
corporations for building railroads Grants
of land were made to canal companies, and
large amounts were appropriated to i'm
prove the rivers and navigable waters OIL
the State, and no one ever questioned thai
these grants were not rightfully made. In
the case of the Great Northern Railroad
Company V. Jacob Kuechler (36 Texas, 1872,
this court, after discussing this question
say: eve cannot, therefore, give our as
sent to the proposition of the Attorney
General that no State government ever had
the constitutional authority to make gift
to private corporation"
In regard to the authority of the Legisla
ture to grant these bonds, we insist that il
is not for courts to define and set limits tC
the legislative power, nor can they hold 6
law to be void which is not prohibited by
the Constitution, because in their opinion,
1t violates the spirit of our institutions, Oh
impairs any of those rights which it is the
object of free government to protect; mol
can they declare it to be unconstitutional
because it is morally wrong and unjust.
The Constitution itself contains all the in
hibitions that exist against legislative &C
ton. If the courts can add to these they
alter this fundamental instrument, which
they are not authorized to do, and them
selves become aggressors, and violate both
letter and spirit of that organic law a:
grossly as the Legislature could. SHARP
ley v. Mayor Of Philadelphia, 0 Harris r.,
161; Potter's Dwarr1s on Statutes, sos.
They cannot supply what they may sup
pose is cuSas OlnisSus in the Constitution
nor declare unconstitutional an act of the
Legislature which they conceive wrong, un,
just or oppressive. Potter's Dwarris OF
Statutes, 369.)
It is not for the judiciary or the execu
tive department of the government to in
quire whether the Legislature has violated
the genius OF The government or the gen
eral principles Of liberty or the sIghts OIL
man, or whether their acts are wise or ex
pedient. but only whether the Legislator,
has transcended the limits prescribed by