Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1880-01-26
TIE THURMAN ACT.
THE UNITED STATES SUPREME COURT ON
THE PACIFIC RAILROAD CASES.
Shall the United States Violate its Con-
tracts with the Pacific Railroad Com
panies Dissenting Opinion
of Justice Bradley.

OF justice Bradley.
Ism unable to concur with the judgment of the
Court in these cases, and will vey briefly state the
grounds Of my dissent.
think that Congress had no power to pass the
Act of May 7, 1878, either it regards the Union
Fac hc the Central Pacific Railroad Company
The power of Congress, even over those subjects
upon which it has the power to legslae, is not des
potc, but is subject to certain constitutional lmta
tons. One of these is that no person shall be de-
prived of life, liberty or property without due
process OF law another is that private property shall
not be taken orpublicus without justcompensation;
and third that the judicial power of the United
States is vested in the Supreme and inferior Courts
and not in Congress. 1t to me that the law in
question is volative OF all these restrictions
their spirit at least if of their letter; and law
which violates the spirit of the Constitution is as
much unconstitutional as one that violates its letter.
For example, although the Constitution declares
only that private property shall not be taken for
public use without just compensation, and does not
expressly declare that it shall not be taken for pri
vate without compensation or, in other words,
does not declare that the property OF one person
shall not be taken from him and given to another
without compensation yet no one reasonably
doubt that a law which should do this would be I'M
constitutional, because the prohibition to do it is
within the spirit OF the prohibition that is given it
being the greater enormity OF tie two.
THE CONTRACT
Between the Union and Central Pacific Railroad
Companies and the Government executed
contract and definite 1t was in effect this
That the Government should loan the companies
certain moneys and that the companies should have
a certain period of time to repay the amount the
loan resting the security of the companies
works. Congress, by the law in question, without
any change of circumstances, and against the pro-
test Of the companies, declares that the money
shall be paid at earlier day. and that the contract
shall be changed pro tanto. This is the substance
and effect of the law. Calling the money paid a
sinking fund makes no substantial difference. The
pretense for the law is that the stipulated
security is not good. Congress takes up the
question, ex parte discusses and decides it, passes
Judgment and proposes to issue execution, and to
subject the companies to heavy penalties if they do
not comply. That is the plain English of the law.
In view of the limitations referred to, has Congress
the power to do this? In my judgment it has not.
The law virtually deprives the companies of their
property without due process of law takes it for
public use without compensation; and operates as
exercise by Congress OF the judicial power OF the
Government. That it is plain and
FLAT VIOLATION OF THE CONTRACT
There can be no reasonable doubt. But it is said
that Congress is not subject to any inhibition against
passing laws impairing the validity of contracts.
This is true and the reason why the inhibition to
that effect was imposed upon the States and not
upon Congress evidently was that the power to pass
bankrupt laws should be exclusively vested in Con-
gress in order that the bankruptcy system might be
uniform throughout the United States. When the
States exercised the power they often did it in such
a to favor their own citizens at the
expense of the citizens of other States and of for
eign countries 1t deemed expedient, therefore,
to take the power from the States far it might
involve the imparing the validity OF contracts
State bankrupt laws, since the Constitution went
into effect have only been sustained when operating
prospectivey upon contracts, and then only in the
absence of national law The inhibition referred
to undoubtedly had its origin in these considera
tons 1t fully explains the fact that such inhb
ton was laid upon the National Legislature and
the absence of such an inhibition, therefore, fur
nishes
NO GROUND OF ARGUMENT
In favor of the proposition that Congress may pass
arbitrary and despotic laws with regard to contracts
any more than with regard to any other subject.
matter of legislation. The limitations already
quoted exist in their full force and apply to that
subject as well as to all others. They embody the
essential principles of Magma Charta and are espe-
cially binding upon the legislative department OF
the Government. Under the English Constitution,
notwithstanding the theoretical omnipotence of Par
Lament, such law as the one in question would not
, be tolerated for a moment. The famous denunca-
ton that "it would cut every Englishman to the
bone would be promptly reiterated.
1t will not do to say that the violation of the
by the law in question is not taking OF prop
erty. In the first place it is literally taking OF
property. 1t compes the companies to pay over to
the Government, or its agents, money to which the
Government is not entitled That it will be entitled
by the contract to like amount at some future
time does not matter. Time is part OF the con-
tract. To coerce delivery of the money is
TO GEORGE WITHOUT RIGHT
delivery OF that which is not the property g. the
Government, but the property of the companies. 1t
is needless to refer to the Importance to the COM
panies of the time which the contract gives If it
be alleged that the security of the government
quires this to be done in consequence of waste or
dissipation by the companies of the mortgage secu-
rity, that is question to be decided by judicial in
vestigaton with opportunity of defense A prejudg-
ment of the question by the legislative department
is usurpation of the judicial power
But if it were not, as it is, an actual or physical
taking of property il it merely the subversion
OF the contract and the substitution of another con-
tract in its place. it would be a taking of property
within the spirit of the constitutional provisions
CONTRACT IS PROPERTY;
To destroy it wholly, or to destroy it partially is to
take it ; and to do this by arbitrary legislative sc
ton is TO do it without due process of law.
The case bears no analogy to the laws which were
passed in time of war and public necessity, making
treasury notes Of the Government legal tender
The power to pass those laws was found in other
parts of the Constitution in the power to borrow
money or the credit OF the United States, to regu.
late the value of money, raise and support armies
W suI'lltcS 10 pass ali laws ncceS
sary and proper for carrying into execution the gen.
eral powers of the Government. My views on that
subject were fully expressed in the legal.tender
cases, reported in II Wallace, and have yet seen
no reason to modify them. The legal-tender laws
may have indirectly affected contracts but did not
abrogate them. The before us is totally differ
ent. 1t is direct abrogation of a contract-and
that, too, of contract Of the Government itself a
reputation Of its own contract.
Nor does the case in hand bear any analogy to
what famililrly known as the " Granger Cases."
reported in % U. s., under the names of Mum vs.
Illinois, etc The inquiry there as to the extent
OF the police power in where the public inter.
est is affected; and held that VIII n an ernplov
ment or business becomes a matter Of such public
interest and Importance as to create common
charge or burden upon the citizen; in other words,
when it becomes a practical monopoly, to which the
citizen is compelled to resort and By means Of
which tribute can be exacted from the community.
ID IS subject 20 regulation by the legislative nau-er