Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1876-12-21

| quent comparison is made with England, but
| / think the comparisons all fail, from the SIM
| pie fact that there is no such thingas States
| rights there, and parliament is supreme over
everything except the law courts tand over
them also in sense, but not more SO than
congress- 1t may be ifiteresting, by the
way, to your readers to know that election
disputes in England are now settled by the
law courts, and not bv the house of commons,
as for...a.eor1y. Why not refer the present cleo
| ton to the law courts, as proposed by Mr..
Edmunds, I believe? or, as your house of re-
representatives. is Judge of the eligibility, ETC.,
of its own members, why not let the electoral
college decide the question In the same man
ner? Ap0lOgising for the length of my letter.
SYMPATHETIC FOREIGNER.
Repeal the City Charter.
EDIToRs APPEAL-For more than year
| have urged the total repeal of our city
charter, and the resolving of the inhabitants Of
Memphis back into the body of Shelby coun-
ty as the one effectual method of saving the
people from the swift confscation and ruin
about to be visited upon them by remorseless
creditors. Many have doubted if this could
be done, saying the courts would disregard
it and compel the levy of taxes despite any
legislative action. Let us see. The supreme
court or Tennessee have repeatedly affirmed
the power of the legislature to repeal munic-
ipal charters. The city of Memphis is a
municipal or public corporation. As contra
dlstinguls...ou s:-.ou rom private corporation,
municipal or public grants of franchises are
always subject to the control of TIE legisla
tive. power for the purpose of amendment,
modification or entire revocation. IS Heis
kel, 527. "Ihe creation Of nSInicipal cor
poratiOns and the comforting upon them of
certain powers and subiecting them to cor
responding duties does not deprive the legis-
lature of the State of that complete control
of their citizens which was before possessed.
1t still has authority to amend their charters,
enlarge or diminish their power, extend or
limit their boundaries consolidate two or
more into one; overrule their action
whenever it is deemed unwise; i'm
polite or unjust, and even abolish them
altogether In the Legislative discretion. The
rights and franchises of such a corporation
being granted for the purposes of the gov.
ernment, can never become such vested
rights as against the State; that they cannot
be taken away, nor does the charter consti-
tute contract in the sense of the constitu-
tional provision which prohibits the obliga-
ton of contracts being violated" [Cooleys
constitutional Limitations, 1872. In support
of the foregoing proposition, Judge Cooley
quotes numerous judicial decisions. The pow
er OF the legislature to annihilate the munic-
lpal corporation of Memphis is, in my
opinion, unquestionable; but whether debat-
able or not, suppose the next general assem-
bly, should entirely repeal our charter. and
leave us utterly without municipal govern
ment and subject alone to the county govern
ment, as the balance of the inhabitants of
the county for the management Of our local
affairs, we would then be without mayor,
council or other city officers, and be governed
preclselyy as the people in the suburbs of the
city outside the corporate limits are now gov
erned and proteeted, VIZ: by the justices of
the peace and the county constabulary-a far
better and cheaper government. Now, sup
pose for the sake of argument, this revo-
cation of the charter should be pronounced
by the courts void, still there would be no
election Of mayor and council, no municipal
officers upon whom a mandamus to levy taxes
could operate. The function of mandamus
is to compel an officer, or a corporation to do
that which by law they are authorized to
do without compulsiOn; but if there is no
officer, and no organization of the corpora
ton, the mandamus becomes nugatory and
valueless for want of a subject. The court
cannot appoint a mayor and council, nor can
it levy tax and collect it through a receiver
or other officer. This is well settled The
Louisiana legislature created board of levee
for Madison and Carroll
parishes, with power to construct levees, issue
bonds in payment, and levy taxes to pay prin-
cipal and interest. There was no repeal of
the corporaton-the law of its being re-
manned in force-but the commissioners re
signed to evade the levy of the tax, and
Heine, holder of the bonds and coupons,
brought suit in equity in the United States
court to compel the levy of tax to pay them
In that case the supreme court of the United
States said: 1.-The power we are here asked
to exercise is the very delicate eof taxation.
This power belongs IN this country to the leg
islative sovereignty, State or national In
the case before us, the national sovereignty
has nothing to do with it; the power must be
derived from the Legislature of the State. So
far as this case is concerned, the State has
the power to the levee commission
ers. If that body has ceased to exist, the
remedy is in the legislature to assess
the tax by special statute, or vest the power in
some other tribunal. 1t certainly is not vested,
as in the exercise of an original jurisdiction,
in any Federal court. 1t is unreasonable
to suppose that the Legislature would
ever select a Federal court for that
purpose. 1t is not only no one of the inher-
ent powers of the court to levy and collect
taxes, but it is an invasion, by the Judiciary
of the Federal government, of the legislative
functions of the State government. 1t is a
most extraordinary request, and a compliance
with it would involve consequences no less
out of the way of judicial procedure, the end
of which no wisdom can foresee." 10 Wal
lace, 661. In the same case the court said:
ut is the experience Of every day and of all
men that debts are created which are never
paid, though the creditor has exhausted all
the resources of the law. 1t is misfortune
which, in the imperfection of human nature,
often admits Of no redress. The holder of a
bond must, in common with
other men, submit to tins calamity when the
law affords no relief" 10 Wallace, $50.
In the case Of Burkley DS. the leyee commits !
sioners of Madison and Carroll parishes, re-
Gently decided, the supreme court of the
United States says: ''f there be a Judgment !
against the corporation, a mandamus will not |
lie to enforce the assessment of taxes for its |
payment, for want of officers upon whom to |
serve the process. Having thus shown there |
S way to save ourselves from impending |
Tin, Will in a future communication en-
leavor to show that we ought TO take that |
way promptly, and will offer some objections |
o the proposed alterations of the city charter |
offered by the committee of the council, and |
;ome objections to Mayor Flippin' plan.
MINOR MERIWETHER.
steamer Montana Burned.