Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1880-01-26
GREATLY NEUTRALITY-SUSPICIOUS.

GREATLY MISUNDERSTOOD.
Ii is sort of proviso peculiar to American egisla
tion growing out of the decision of the Dartmouth
College case. Mr.. Justice Story, in his opinion ia |
that case a Wheaton. 675), says; "when
private eleemosynary corporation is thus created by
the charter of the crown, it is subject to no other
control on the part of the crown than what is ex-
pressy or implicitly reserved by the charter itself
Unless power be reserved for this purpose the
crown cannot, in virtue of its prerogative without
the consent OF the corporation alter amend the
charter, dvest the corporation of any
of its franchises" This hint, that such a
reservation would authorize an alteration or
amendment to be made in a charter has
been freely avaed of by Legislatures aud Constitu-
tional Conventions in order to be freed from the
constitutional restriction against mpairing the
validity OF contracts far it applied TO charters
Of incorporation. The application Of that restric
ton to such charters, by constituting them to be
contracts within the meaning OF the Constitution,
was surprise to many statesmen and juriss OF the
country. Chief Justice Marshall, indeed, in his
opinion In that case, says at is than
possible that the preservation OF rights of this de-
scription was not particularly in the view OF the
trainers of the Constitution when the clause under
consideration was introduced into the instrument"
Il Wheat, 6+4.) Probably in view of this somewhat
unexpected application OF the clause operating, as
it did, to deprive the States of nearly all legislative
control over corporations of their own creation the
Courts have given liberal construction to the reser-
walton of power to alter, amend and repeal a char
ter; and have sustained acts of legislation
made under such reservation which are at least
questionable.
NO RESERVED RIGHT TO VIOLATE A CONTRACT.
In my judgment the reservation is to be inter
preed as placing the State Legislature back on the
same platform Of power and control over the char
ter containing it it would have occupied had the
constitutional restriction about contracts never
existed and think the reservation effects nothing
more. 1t certainly cannot be interpreted reserv
ing right to violate contract at Will. No Legis
lature reserved such right in any contract
Legislatures often reserve the right to terminate
continuous contract at will; but never to
violate contract or change its terms
without the consent of the other party.
| The reserved power in question is simply
that of legislation; to alter, amend repeal char
ter. This is very different from the power violate
to alter the terms Of a contract at will reser-
walton of power to violate contract or alter it, or
impair its obligation, would be repugnant to the
contract itself, and void. proviso repugnant to
the granting part OF the deed the enactng part OF
a statute is void Interpreted as reservation of
the right to legslate the reserved power is sustain
able on sound principles; but interpreted as the
serva ion OF right to violate an executed contract
! it is not sustainabe.
The question then comes back to the extent of the
power to legislate. But that is a restricted power
restricted by other constitutional provisions to
which reference has already been made. Certainly
the Legislature cannot in charter OF Incorporation
or in any other law, reserve to itself any greater
powers of legislation than the Constitution itself
comedies to it. 1t to clear, therefore, that
the power reserved cannot authorize
A FLAT ABRoGATIoN OF THE CONTRACT
By Congress, because as before shown, such an alb
rogation would be violation of those clauses which
inhibit the taking of property without process OF
law and without compensation.
1t may be said that by of the reserved
power to alter and repeal charter this Court has
sustained Legisat Acts imposing taxes from
which the corporation by the charter exempted.
This is true. But the imposition of taxes is pre-
eminently act OF legislation. Its tenn
porary suspension, conceded in a charter,
is suspension of the legislative power
pro tanto. Being such, a reservation of the right
to legslate, or, which is the thing, to alter
amend, repeal the cha't ter necessarily includes
the right to resume the power of taxation. The
observations apply to the regulation OF fare;
and freights; for this is a branch Of the police
power applicable to all cases which involve com
mon charge upon the people.
conclude, therefore, that the power reserved to
alter amend and repeal the char er of the Union
Pacific Railroad Company is not sufficient to author
ize the passage of the law in question.
DANGER AHEAD
will only add, further that the initiation of this
species of legislation by Congress is well calculated
to excite alarm. 1t has the effect of announcing to
the world, and giving it to be understood,
that this Government does not consider itself
bound by its engagements. 1t sets the example of
reputation OF Government obligations 1t strikes
blow the public credit 1t asserts the principle
that might makes right 1t saps the foundations of
pubic morality. Perhaps, however, these are
considerations more properly to be addressed to
the legislative discretion. But when forced upon
| the attention by what in my Judgment, IS an un-
constitutional exercise of legislative power they
have more than ordinary weight and significance
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