Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1880-02-04

of loan and borrowing previously existing between
the Government and the railroad companies, and
change it at the will Of the creditor alone. Nor can
it be denied that they impose upon the debtors new
and onerous burdens that they never agreed to
assume. Practically, they enforce payment Of the
debt before by the terms Of the contract, it is
due. The Act seizes the half-compensation, which
the Government agreed should not be retained and
covers it into the Treasury appropriating it to the
payment of the debt. For nothing else can 1t be
used The Act also requires payment into the
Treasury OF % per cent of the net earnings OF the
company, instead of per cent. only, as stipulated
when the contract made. 1t IS true 1t does not
make immediate application Of the sums thus with
held and demanded to the extinguishment OF the
debt 1t declares that they shall be applied to the
payment of the debt and interest at the maturity
of the boLds" But this is a distinction with
out a difference obviously made to evade what it
was known could OF lawfully be done An imme-
date application might as Yell have been directed
It would probably be better for the debtor if the
application were Immediately made. The money is
taken from the debtor, withdrawn entirely from the
debtors control and use, and put into the treasury
Of the creditor, and there Left to the mere agree
ment OF the creditor to apply it to payment. ap-
prehend that no plain of common sense will
hesitate to conclude that this is
EXACTING PAYMENT BEFORE THE DEBT is DUE.
If A borrows from 1000, and gives his note
therefor payable at the expiration OF five years.
and at the end of one year the lender demands that
there be placed in his hands by the debtor sum Of
money to meet the note when it shall fall due, it
II l..
ing payment before the debtor bound pay.
And if such a demand could be inforced it would be
at the expense Of the contract. What more is the
present caseg And it conceded the Act of 1875
does not attempt inforce the payment before the
maturity Of the debt the concession would be Of
little worth, for it will not be questioned that
it attempts to enforce giving additional securlt,
for payment beyond that stipulated in the contract.
That is no less material alteration of the contract,
a serious addition to it. The PLAIN truth is the
sertion OF such a power is claiming the right to
disregard the contrac; entirely and substitute for it
different one, without consent of the debtor. If
the United States can exact now one-quarter OF the
net earnings Of each of these companies, and place
it in their Treasury, they can, by the same power
and with the same reason, exact the whole OF the
earnings any other property equal to the amount
of the debt Was any such thing contemplated by
the parties when the contract was made?
Now, where is the power OF Congress TO add new
terms to any contract made with the United States
or made between any two private individuals?
WHERE Is THE POWER TO ANNuL VESTED
RIGHTS?
It is certainly not to be found in the Constitution
| A. hat law
impairing the obligation of contracts applies only
tn State legislation. For such Legislation the prohi-
btion was necessary for State Legislatures have all
| legislative power which is not expressly denied
TO them. But no necessity existed for imposing
such Limitation on the power OF Congress. As
Mr.. Hamilton said in the eighty fourth number
Of the Federdlist: "Why declare that things
shall not be done which there is no power
to do?" Congress has no power except such as has
been expressly granted to it, or such as is necessary
or proper for carrying into execution the powers
specified and those vested by the Constitution in
the Government, OF some department officer
thereof search in vain for an express or implied
grant of power to add new terms to any existing
contracts made by or with the Government, or any
grant of power to destroy vested rights. No power
has been given to Congress to lessen the obligations
of a contract between private parties by
direct legislation, except by the enactment
OF uniform laws on the subject of bankruptcy.
Even bankrupt law cannot be enacted applicable
only to single corporations or single debtors
To be constitutional it must be uniform throughout
the United States. l admit that in the exercise OF
some of the powers granted Congress may enact
laws that indirectly affect existing contracts, and
lessen their obligation, but l deny that it can by
any direct action, otherwise than by bankrupt
law, even relieve a debtor to private party from
any duty he has assumed by his contract. Much
less it change the stipulations OF the contra
and impose additional liabilities upon a contractor
with the Government. Such ain exercise of power
would be making contract for parties to which
they never assented. In all the history of Con-
gressiona legislation before the Act of 1878 such
power was never attempted to be exercised
NO LEGISLATIVE POWER AS CLAIMED.
And not only is such legislative Authority not con-
ferred upon Congress by the Constitution, but it is,
in effect, expressly denied. The fifth amendment
contains restrictions taken, substance from Mag
ma Charta. Among them are the provisions that no
person shall be deprived Of life, liberty, property,
| WITHOUT que process OF nor prop
| erty be taken for public without just compen-
sation. These restrictions upon legislative as
well as executive powder. What is due process
of law is well understood. It is law in
regular course of administration through Courts of
justice. Coke, Inst, 272; Murrsys lessee VS.. the
Hoboken Land Company, is How, 272) "The
terms the law of the land" SAID Chief Justice
Rufin (Hoke VS.. Henderson, Dew. N. c., 15), do
not mean merely an Act of the General Assembly.
Ii they did, every restriction upon legislative author
ity would be at once abrogated and private prop
erty would he at the mercy of the Legislature" Yet
the Act of Congress of 1878 does attempt by its
force and without any judicial action, not only to
change contract and increase its obligations, but
also to deprive the railroad companies of their prop
erty.
WHAT is PROPERTY!
What is the common understanding of the term?
1t is, in reference to its subject, whatever person
can possess and enjoy by right, and the person who
has that right has the property. The subject may
be corporal or incorporeal. A very large portion
of the property of the country consists in rights at
tendant upon contract. The right OF proinisee to
demand payment when the note falls due is right
of property, and equally so is the right of the
promsor to hold against his promfsee, the
consideration for the promise until the time
stipulated in the note for payment. The promisee
has right to enforce payment, or to enforce Civ
ing security for it, If promised in the con-
tract Such right is no portion OF his property,
and it can be enforced only at the expense OF clear
right of the promisor. On the other hand, the
promisor has right to exemption from liability to
give such security 1t is incident to this contract.
Indeed it may be said that whatever rights are
created by contract, or held under it, if they re-
late to property, are themselves, in very just
sense, property, and as such protected by the fifth
amendment to the Constitution.
Is 1T AN ATTEMPTED EXERCISE OF LEGIs-
LAIIvE POWER?
notice another consideration which, to my mind,
is not without weight 1t may, think, well be
doubted whether the Act of 1878 is even an at
tempted exercise of legislative power. statute
undertaking TO take the property of A and
transfer it to Is not legislation. 1t
would not be a law 1t would be decree or