Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1878-06-30


600 of the bonds properly known as the
''Brownlow bonds.
The large amount of this issue of bonds
cancelled resulted from the passage of the act
of the twentieth of January, 1870, which al
lowed any railroad company indebted to tile
State, by reason of the bonds loaned to said
company, to pay Its debt In any series OF
| bonds of the State. This act fixed the entire
bonded debt o. the, State, and gave all the
bonds, old and new, Tie same force and Dig
| nifty, and deprived the State of all opportu-
| nifty, if there was any reason for it, of con-
testing their validity. This act was passed
| by an overwhelming majority In the house,
and IN the senate there were only eight dis
senting votes, in the face of an able and ex
haustive report against it, made by the dis
tiuguished Senator Cooper, from Davidson.
Under its provisions, the comptroller was
bound to receive any bond issued in accord
ance with the forms of law.
THE FUNDING BILL OF 1872.
For history of this BILL l give you the fol-
lowing extract from a letter written in July,
1874, by my immediate predecessor. Governor
John Z. Brown, to a committee of leading
citizens of Memphis:
''There were but two modes of redeeming
the past-due debt. One was to pay it by
taxation, and the other to renew it by giving
new bonds, bearing interest, which is called
funding It could not be paid by taxation
without an addition to the ordinary levy that
would have ruined the country by its OPP
pressiyeness. l thought the other mode
that Is, taking up the past-due Indebtedness
by new bonds, to be issued at par-could be
adopted and current interest paid on the
whole debt without increasing but very little,
If at all, the rate Of taxation. Therefore,
with the highest and most dislnterested mo-
tives, l made this policy the burden of my
address to the people throughout the entire
canvass. One of my competitors, Hon. A. A.
Freeman, Endorsed this position, and the
other, Mr.. A. S. Colyar, without discussing it,
declared that he saw no other more feasible
remedy. The result of the canvass is known.
| renewed the recommendations previously
made on this question, and the general as
sembly passed what is known as the fund
ing bill, by which it was provided that the
bonds and coupons due on or before the first
day of January, 1874, and none other than
those due on or before the first OF January,
1874, should be redeemed by the issuance to
the holders of new six per cent. ten forty
bonds
1t is too late to discuss the wisdom of the
act of 1870, authorizing the railway compa-
MES to discharge their debts to the State In
any series of bonds, or that of the funding
act of 1873. 1t is sufficient to say that it was
entirely competent for the legislature to bind
the State by both of these acts, and but for
your request that should cite you to some
authority on this point, | would suppose that
there was Just as great necessity for it as
there is to prove to the country that two and
two make four. To demand positive law, in
the shape of constitutional or legislative en-
actment, or Judicial decision, for the power of
a sovereign State to issue its bonds for any
purpose of government, is like asking for
demonstration of one of the axioms of
Euclid, or the positive law by which
an individual can contract debt binding on
him and his property In the future. The
exercise of the power is so essential to the
very existence of the government, in certain
exlgencies, that it has been conceded by both
the theoretical and practical statesman. l
have already cited you to the opinion of sew
eral of the latter class, President Polk and
others. Every government exercises the
power.
1.-The power and jurisdiction of the Eng
lish parliament, says Lord Coke, sis so
transcendent and absolute that it cannot be |
confined either for persons or causes within |
any bounds (4th Inst, 36.) st isl says |
Sir William Blackstone, ''the exercise of the |
highest authority that the kingdom acknowl- |
edges upon earth" list Blackstone's Com. |
81, $50, 1867 "The principle in the English |
government that the parliament is omnipo-
emit does not prevail in the United States;
though, if there be no constitutional
objection to statute, it is
with US as absolute and uncomfortable as
avs flowing from the sovereign power under
any other form of government. Il Kent's
subject, says Mr.. Cooley. ''apr ears to be
his: In every sovereign State there resides
IN absolute and uncontrolled power of legis-
alton. In Great Britain this complete power
ests in the parliament; in the American
States it resides in the people themselves, as
m organized body polite. But the people,
~ creating the constitution of the United
States, have delegated this power as to GER
ain subjects and under certain restrictions to
he congress of the Union. For the exercise
& the legislative power, subject to this linn
tation, they create, by their State constitu
ion, Legislative department on which they
onfer it; and granting it In general terms,
hey must be understood to grant the whole
legislative power which they possessed, ex-
ept SO far as at the same time they saw fit
0 impose restrictions. While, therefore. the
arliament Of Great Britain possesses COM
leteIy the absolute and uncontrolled power
f legislation, the legislative bodies of the
american States possess the same
over, except, first, as it may have been
mited by the constitution of the United
tates, and second, as it may have been
mited by the constitution of the State. A
legislative act cannot, therefore, be declared
old unless its conflict with one of these two
can be pointed out" Cooley on
institutional limitations, p. 172).
Ieither the constitution of the United
tates nor the constitution of the State of
ennessee contains any restrictions upon the
over of the legislative department of the
tate creating debts for governmental pur
oses or issuing its bonds therefor. On the
,ntrary, the constitution of 1884, article II,
.ction 9, expressly declares that "a we'll
.gulated system of internal improvement Is
llculated to develop the resources of the
tate and promote the happiness and pros
Gritty of her citizens, and therefore ought to
? encouraged by the general assembly"
IT is MATTER OF HISTORY
lat the trainers of this constitution construe
lis clause into positive direction of the peo-
e to issue bonds for the purposes 2
internal improvement. The issu
ice of State bonds is conceded to be I
gal by the supreme court in the State as. 4
,fferson turnpike company, (3d Humphreys
ports, 305); and In the State as. Central Il
,rts, 1881. Judge Green delivered the a
Union of the court in both cases. The utter
ices of our eminent judges have been In
riot accord with the principles of govern
ent already quoted. Judge Hayward said:
The legislature of Tennessee can do all
ings not prohibited by the constitution of
e State, or of the United States" (Bell as.
ank of Nashville; Peck, 269). ''The sover-
On legislative power of Tennessee" says
e same eminent judge, like the sovereign
,wer of all other States, of whatsoever char
er they may be, may do all things not nat
ally impossible, which it deems promotive
the public welfare. except in such instan
8 where, by the fundamental law of the ma
IN, written by the mighty hand of the peo- 9
e, it is forbidden, and In any instance where (
gislatlVe power is questioned it bounds over y
position, unless restriction upon that
,wer in the particular instance can he clear n
pointed out" (Tipton as. Harris; Peck. d
81. Upon this point - says Judge Fin
y, "all we deem it necessary to
y is, that the State of Tennessee
a sovereign and independent power, ex-
pit so far as it is restrained by the constitu-
IN of the United States; that its legislature
IS unlimited power of legislation, except SO
az it is restricted by the constitution of g
e United States and the constitution of the r;
ate of Tennessee" (Hope us. Deaderick, I
UNI. } This eminent judge, as it is well known, 3
st authoritatively enunciated, contrary to p
e opinion of Chancellor Kent, that pri-
tie corporation, as it was authorized to con- &
act debts for the purposes OF creation, SO it A
ght issue its obligations in time for their
yment Union bank as. Jacobs, 9Th Hum,
g. This doctrine has also been extended
other corporations. (Ohio Life insurance
d Trust company Us. Merchants insurance
mpany, IL Hum; Moss as. Harpel acade-