Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1889-02-20

ject by express prohibitions IN the Consti-
tuition, and the States by such as are neces-
sarily implied when The exercise of right
by State conflicts with the perfect execu-
ton of another sovereign power delegated
to the United States. That occurs when
taxation by State acts upon the instru-
ments, emoluments and persons which the
United States may use and employ as
necessary and proper means to execute
their sovereign power. In our
view, II presents a case of as strong inter-
terence as was presented by the tax imposed
by Maryland, in the case of McCulloch a
Wheaton, 3l6), and the tax of the City
Council of Charleston in Weston's case q
Peters, 449), in both Of which it was de-
cided by this Court that a State cannot Law
tax upon the constitutional means en-
ployed by the Government of the Union to
execute its constitutional powers (429.)
AS the Government found and took
Captain Dobbin, so it found and took the
defendant, and made it constitutional
means to execute the constitutional
powers
JUDGE sToRY's ILLUSTRATIONS.
"As Judge Story so variously illustrated
Commentaries, Sections 1887, 113S, 1882,
instead of building a ship, or post coach,
| the Government buys or hires one: in
stead of building a post road, it adopts
road already built; instead of erecting
postoffice, or mint, or custom-house, it
rents one.
"ln all of these cases, there is less of
creation, as distinguished from adoption,
| than in the case at bar.
upon what theory did Congress pro-
coed IN enacting Mr.. Webster's Crimes
Act in 1925? 1t inficts exceptional and
enormous punishments for assaults upon
the most subordinate agents employed to
carry and handle the mails, and for inter-
| ferences with them.
"The only excuse for such punishments
which modern jurisprudence could accept,
is that they are safeguards thrown around
the instrumentalities of the Government.
| The driver of a stage, the boy riding
mule with his saddle bags carrying letters.
the clerk in rented postoffice-all are
surrounded with special protection, as so
many representatives of the sovereignty
of the nation.
Contrast with these petty examples the
multiplied and enduring relations and
trusts deposited by the Government with
the defendant and the complex conse-
quences and interests involved.
"Yet the learned counsel argues that
California is the ultimate sovereign arbi-
TRAITOR in the case. He declares that when
twenty-nine years more shall have elapsed
because twenty-one of the fifty years
named in the articles of incorporation filed
in California by the germ of the present
/ oo-,,ora fio,, haua ,,Opa lraodu hot bo,,
| twenty-nine years shall have rolled away
| the hour will strike when this national
organization will expire and dissolve.
Then, of course, according to the argument,
my friend here, the Acknowledgement of
California, with half the zeal of to-day,
will proceed by quo warranto to take away
the remains of animation, and if need be
will have a Receiver appointed to dis
tribute belongings which came, as far as
they came from public grant, chiefly from
the United States, to be forever used in its
service and behalf.
| sHRIvEL LIKE A PARCHED SCROLL.
"In twenty-nine years, at all events, by
! this theory these most powerful external
agencies of the Government must shrivel
like a parched scroll. But whether so
much grace shall be permitted depend; on
the omnipotent majority in California;
majority of those who come out to vote,
and are supposed to speak not only for
themselves, but for those, no matter how
many, who stay at home Should the
majority make up its mind, or its will, that
such length of life is not good for railroads
operated in more than one county, and re-
peal the General Railroad Act Of 1861
the Act under which the defendant first
organized then the counsel is compelled
to argue that on any day the Legislature
of the State may take away the franchise
and existence of the defendant.
'Thus, continuous line of road of
uniform gauge, traversing several States
and Territories, instituted and established
| by the United States as national high
way, and postroad and telegraph line, and
a military and naval road in time of war.
subject always as to rules of fare and
freight to the United States, indebted as
the Central Paci6c-a like organization in
all substantial respects-is to the United
States in vast sums Of. money payable out
of long future earnings and services, and
chartered by the United States to continue
perpetually, has, we are told now, only a
precarious existence dependent on the
will and pleasure of the Legislature of one
distant State, among the most meager in
population of all the States.
"Can your Honors accept such conclu-
sion? You must accept it as the newt
able logic on which this assessment stands
ABSOLUTE vIsIToRIAL POWERS.
''The Constitution of California does not
finch from the argument. One of its arti-
cles ordains that the Legislature may
create a commission armed with rigorous.
nay, absolute visitorial powers, authorized
TO cut down dd hbitna the fares and
| freights of these national roads and fix
them when and as they please The Leg
islature has proceeded under this license.
"There is the expression of twin power.
This claim of control, together with the
claim of the right to tax, makes up the
dual pretension of the absolute State sover-
eighty.
"Put the two powers together and you
have the united power to despoil and
starve; the power to forbid earnings and
to strip the corporation of property al
ready acquired.
"Does such power endanger the occupa-
ton and business of these beings? Can it
be used to destroy, impede, delay or pre-
vent the said company from performing its
obligation to the United States? ?"
as this the lame and impotent conclu-
sion of great passage in the legislative,
political and material history of the coun-
try-a passage which recounts the master
ful achievement OF constructing ironways
for vast trains carrying armies, munitions
of war, peoples and merchandise, traversing
trackless deserts and measureless mountains
to distant sea?
Is this the ignominious destiny of an
achievement which summoned to its aid
the highest craftsmanship and enterprise of
our time ?"
| ROSCOE CoNKLINGs ARGUMENT.
This was the argument of Roscoe Conk-
ling, who was not permitted to see it woven
into the judicial history Of the country
The case in which the argument was made
| 1.-THE San Mateo case was attacked as a
fraudulent one Through newspapers and
by State officers Judge Rhodes, man of
unimpeachable honor, has been accused of
throwing away the rights of a sovereign
State. The Supreme Court of the United
States set aside the order of submission,
and that case was never decided, but in
later cases the Judgment which followed
4 Al l.. Al Il.