National Republican. (Washington City (D.C.)) 1872-1888, 1886-05-29
CHURCH AND STATE,
THE LEGAL ASPECT OF TIE MORMON
CONTROVERSY.
Can the United States Appoint a Board
of Government for n Church-Can n
Church be Disestablishcd by Law

The following is the additional argument Of
Hon JciT Chandler before the judiciary com.
mittee of the House Of Representatives in ref.
crenoc to the proposed legislation on the Nor.
mon question:
MIR. Chairman, am not going to take but n
few minutes OF the time of the committee
which you have so kindly granted me.
] wish to call attention 10 the first paragraph
OF section IL.
'Section - That the acts ofthe legislative as.
scmbly Of Utah, Incorporating, continuing, or
providing for the corporation known as the
church Of Jesus Christ Of Latter.Day Saints,
and the ordinance of the so-called general
assembly of the state Of Deseret, Incorporating
the Church of Jesus Christ of Lattcr.Day Saints
so far as tho same may now have legal force
and vitality, are hereby disapproved and an
s nSg by he me T Unite certain
provided"
say that that part of the bill Is unconstltu.
tonai, for two reasons. The first reason Is
that the charter of the corporation which Is
there mentioned is contract between the
government Of the United States and private
charity established under that corporation,
and that contract cannot be repealed, The
second reason why II is unconstitutional Is
that no charter can be repealed except one OF
a municipal character purely, essentially and
wholly created by the law-making branch of
the. government for governmental purposes
a charter may be forfeited by judicial pro-
Cceding where 1t il partly public and partly
private for non.user or misuScr but there
must be Il judicial hearing IN order 20 forfeit
II. LIT no law which undertakes TO forfeit u
IN tie courts. This doctrine relates to u class
of corporations which are party private ana
partly public, like ferries and Ike COrDDrl-
ions authorized to transport passengers and
freight, ard those corporations which the gov
eminent have II right TO regulate, but which
9ic supported 10y private innds, private eontrl,
CORPORATION has that duplex Character, and is
dCaing with public matters ~ such way
as thst NE Consre's may control or govern US
the management OF its business. lo' in
stance require 1t TO adopt certain pre-.
are dealing with ito that extent lnws may
lie made rOycrnpgit IT, however, It be cor.
ItrutiUn whith h established upon private
contributions eSclutvely, Ike the contriou-
buttons Of Stockholders, or tue contributions
at lessons who establish ferries for the purp Sc
Of gain, tho,e charters cannot be forfeited by
Congress or by the luw-makifg body ola state
lie Chairman. Have you all authority on
TINT !oinG
M Chandler. Yes, SIR Here Is case
Guol,d IN 10 Barber. supreme count, court of
appeals Of New York, IN which they say:
Tho other rruuud upOn which the title of
the city in the ferries Cnn be maintained has
bc,n slated to be ne acrGtness q ,eSdI rights
And admitting, therefore, that there Is no con-
truIt within the constitutional meaning and as
sliniing that the charter Is OF no higher nature
than u legislative act, which can be repealed
at viii; slill, the corporation, having gone on
and established the ferries under such charter,
have Jecome vested of a property right, which
cannot be destroyed by the law-making power.
II is the settled law OF this state that vested
rights in property, acquired by virtuo of Il
stStute, cannot he Invested nor DESTROYED by Il
repeal or modification OF a statute. Crhe Peo-
pie VS.. The Supervisors of Westchester, Barb,
8, c. Rep, GI) The inhabitants of the city of
New York have vested right in the city hall
markets, water works, ferries, and other pub
them any more than their individual dwellings
or storehouses. Their rights in this respect
rest not merely upon the constitution, but upon
lie at the foundation of all free governments.
ITO prevent misconstructlon, 1t may be
proper TO remark that these conclusions do not
control over the ferries. Franchises OF this
description are partly OF public. and
partly of a private nature. So far rs
the accommodation OF passengers Is concerned
they are publict jtrs, SO far Us they require
capital and produce revenues, they are priUaN
juIs. Certain duties and burdens are imposed
upon the grantees, who are compensated there.
for the privilege of levying ferriage, and
the security from spoilation, arising from the
irrevocable nature of the grant The state
may leglslate touching them, SO far as thoy are
punish neglect or misconduct in condilc...Iis
the ferries, TO secure the safety G: passengers
fiom danger and inlposyhor, CSC. But the state
deprive The city or their legitimate rents and
rofits. Inc hsnchiSe, however, may be Jor.
JtEHssjTry IOn-uSCr or nisllser, jndcially aScer-
tnllCu, ana inc government, IN Tue CNGTClse Oh
the sovereign pONc Of eminent domain, may
resume The properly iCr public use, on making
u iust cont nsation, hHi not otherwise.
The Chairman lent that provision OF the
Cun,titLtOn OF New lurS. that the state cannot
take property for public use except upon Just
compensation?
Mi Chandler. That mny or may not be. l
presume It. l. ~ tie eUntituiph ot alan st
every state in . Union that pirate property
shGll tot be taken except Tor ruDii use, aud
then culy upon just COMPENSATION Bat the
~ hat llSht
Tint, u urrh the corporation Is partly public
Ctd lniUy private 1t cannot be forfeited OK
Gritty judicial preceding. The legislature
Of New York c'r,iuL pass law IISO JIct0
sweeping away the franchise without any
hearing OfrGries Interested in IT, That would
he exercising purely judicial authority and
the Legislature cannot exercise such authority.
Now, ia corporation Of that character has Il
right to he hygrd before II Is condemned then
this law j. vicious, because even IL this were q
quasi ! uLliC corporation, which II Il not II
would De- entitled 10 hearing, aud It's charter
cannot c taken away from II arbitrarily with
cut hearing 10y an act OF Congress, But rs IL
said here in this decision, which - simply one
Ola tlOusand, there is no break IN the current
ofjud!cal opinions on this proposition thai no
property, whether II be vested In u corporation
or in trustee. or in u private person can be
reached and the title to that property changed
unless there be first q judicial hearing
Now, II is not worth while II seems 10 me, "
detam the committee in arguing the PROPOSE
ton that any legal entity, no matter what It's
character may be, that Is possessed OF property,
dicial hearing, aud TO say that this bill can
sweep church property away and change the
title to It's property by mere force OF an enlct-
meLt, Is to establish doctrine that the coulti
have not recognized anywhere In this country,
and which overthrows vested rights.
Now this bill provides that these acts shall
he repealed, that this charter shall be taken
away by operation of this law, and not by rel-
ron of any judicial proceeding. But eau thi'
charter be taken away At all' That Is the CUES
the corporation of Trinity Church. suppose
there would not be lawyer In this country
who would claim that the state OF New York
ity Church. II holds It's property in abundance
Il has acquired IL and kept on acquiring II, aut
has buildings for rent which II has erected
under its charter for many years with the as
Is there pow or to take away and repeal sucl
charter as thaP When you reach that clas
OF corporations which are purely private they
cannot be changed by legislation 1t does no
matter whether the title 10 private property Il
in an individual, In atrustee, or in corpora
Ton: As was held IN the Dartmouth
have followed IL, II does not give the
prorrrty public character or the pur
pose for which the cnarity was Instituted /
public character, because the tit|e to its prop
CTty Is in n corporation. IL Is precisely tht
same as II IL were held by John Jacob Aston
suppose trust wero created ~ him md hl
successors. and the terms of the trust which
invested him with the property In the first In
stance dCscriLe ed the Clrcumstanccsuuder which
lie might acquire "ther property. Is 1t com
pCtent Ia any legislative body OF this COuutr!
tO.Change tho circumstances under which Ia
might acquire property Is II competent for
legislative body TO change the nature Of a con
tract between two persons competent IN con
tract? That ~ all there Is about II. II Congress
cannot russ law annulling contract for
fae Of house In Salt Lake City between tw,
individuals competent to contract under tn
law when the contract was made II II cannD
PASS law changing the terms Of that contract
II cannot pass II law affecting this contract be
cause there Is no dlneTcnCe in the sacrednes
Of them nor In the legal support which the
have,
The Chairman. suppo'c n corporation tina
was Greeted without Limitation as TO the tim
an