The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1881-06-30

: the Constitution of the nlted states cou
: not have meant to include under the ter
contract, these legislative enactments
the term contract, We suppose they NEAR
what, at that time, the term was unde
stood To express. L was long after III
formation OF that instrument before sue
: enactments were supposed TO be contract
No legal writer had treated them as col
tracts nor had they been spoken of IN an
way, is such. The decisions which mr.
declared them to be such, gave the world
new term as a new idea for the thing.
The Mechanics and Traders Bank vs. Dt
Bolt, | Ohio, Ste, 602. Story comedies tina
the preservation of charters and corporal
rights were not within the contemplation {
the trainers of the Constitution when thu
clause was inserted-2 Story on Const
Sec. 1895.
If the trainers Of the Constitution did no
contemplate and mean 10 embrace legisia
tive enactments, in tits clause of the Con
stitutlOn, what Is the rule of construction
by which the courts have brought then
within It's operation?
In every other case the rule of construc
ton has been, and Is, to geta the intention
and to construe laws and Constitutions &c
/ cording TO tue intent of their makers
/ Cooley on Const., 55-57. None viii Dispute
/ this
/
! by the Convention, and before it was ratl
fed by the States, Hamilton, Madison anc
Jay undertook, in newspaper articles, to ex
/ plain its provisions TO the people. Every
! principle, every article, every clause of tbs
| instrument was examined, explained anc
indicated in this way, by these great men
and their work has been preserved in the
| tederalist They do not say or intimate
/ that the trainers of the Constitution inten
ded 10 declare or establish any new rule Oh
principle in regard TO contracts, or to EN-
brace legislative enactments in that clause
of the Constitution which inhlbIts any
State from passing any law impairjng the
obligation of contracts. The clause is
mentioned but once in the Federalist.-
Cooley on Const., 274. Story says it Is
mentioned twice. Story on Const., Secs.
1875, 1876 | find it mentioned but once,
and that briefly and generally. Ii great
innovation was to be made in the definition
and fundamental law Of contracts-if a
scheme of corruption, abuse, and enslaying
freemen and robbing the States of their
sovereign powers, was proposed or contem-
plated in this clause of the Constitution,
if the prohibition was intended to be any
thing more than limitation upon the
ordinary powers of government. and not
upon the popular sovereignty, it escaped
the attention of these trained, acute and
comprehensive thinkers. 1t was not dis
covered by the patriots OF that day, or
those hostile and opposed to the ratifca-
ton of the Constitution. And yet it is
under this clause of the Constitution, as
construed in the Dartmouth College case
that the most enormous and threatening
powers in our country have been created,
some Of the great and wealthy corporations
actually having greater influence in the
country at large and upon the legislation
of the country than the States to
which they owe their corporate
existence. Every privilege granted
or right conferred, no matter by what
means or what Rretence, being made invio-
liable by the Constitution, the government
is frequently found stripped of its authori-
ty in every important particular and
clause of the Federal Constitution, whose
purpose was to preclude the population Of
debts and just contracts, protects and per
petuates the evil.-Cooley on Const., 279,
note.
Another circumstance that justifes the
opinion Of the Supreme Court of Ohio that
the doctrine SIS absurd, gross absurdity,' is
that the doctrine as it Is established does
not extend to all charters and is not uni
form or consistent in its operation. If the
trainers of the Constitution intended to en-
brace any charter granted by Legislature
in the term contract, it seems to me ire
sistible that they meant TO embrace aii
charters. But it is settled by the authori-
ties that establish the doctrine, that this is
not so and the trainers of the Constitution
meant to embrace in the term, private, but
not public, corporations.
In other words, that Legislature may
grant a charter to a public or municipal
corporation, delegating to it a part of the
sovereign power of the State, and that, after
debts aud obligations have been contracted
on the faith of such charter, it may be amend
edor altogether repealed by the Legislature.
The sovereign power of the State thus dele
gated, may be withdraw at pleasure by the
Legislature, even if the creditors of such
corporation are left remediless and ruined
forever; but if a charter be granted to a
private corporation, it is protected by the
Constitution, and is forever invlolate.
Where is the reason for such discrimination
and inconsistency And yet this is the law,
as it has been construed. Cooley, Const.
1928 Bankley, VS.. Levee. CONS. ct. al,
L. $, 258 Broughton VS.. Pensacola, Id.
266 Jones VS.. Pensacola, POI. If these
charters are contracts, such as they are claim
ed to be, the definition of contract should
be changed to about this. A contract
is a charter, granted by the Legisa
ture of a sovereign State, without authority,
to q private corporation, without cOnsidera-
ton, comforting absolute powers and ex-
elusive privileges which the State can never
afterwards, under any circumstances
change, modify or abolish, but which the
corporation may abandon at its pleasure.
Again, it has been generally supposed that
one of two requisites of a contract is, that
there must be mutuality-bOth parties must
be bound to perform, or neither Is bound.
Right and obligation in this as in other
matters, are correlative terms. What are the
corporators bound to do under these char
tiers? What was the OBLIGATION, of the
contract, on their part? They made no
promise, they were DOT bound 10 act, or DO
anything at all; and, if they had failed to
build their roads, or to do anything, how,
and for what amount, would they have been
liable to the State and against whom would
she have procoededi 4 CONTRACT without
consideration, is inudam pdctunl, and void.
Nobody will dispute this.
These charters show upon their faces that
the corporations paid nothing, that they
did not promise to do anything. was il
implied that they should pay anything or
&c aDyth;ng-that they should be used for
the benefit of the State as we'll as themselves
that they should foster any industry
develop any resources, or turn hitherward
the tide of immigration
IF yea, have they done it, or are they
likely to do t, or either of them2 Has there
not been an entire failure of consideration,
on their part? The State gave them the
right of way through the State-has given
them the protection of her laws and thus far
has exempted them from taxation and allow
ed them TO fix and regulate their own tolls
and charges. Value these roads as other
property IL the State has been valued, and
tax them as other property has been taxed,
and how much would the tax amount to,
since they have been in operation-how
many millions of dollars? And, what will
it amount TO for all time to Gomez What
amount have they realized from exorbitant,
arbitrary and discriminating charges, since
they have been in operation-how many
millions of dollars2 And, what will they
realize on this account for all time TO come,
if they are indeed above the sovereign power
of the State and cannot be subjected to, or
controlled by, her laws? And what has the
State received, and what is it proposed she
shall receive for these royal bountles, privi-