The news & observer., 1897-02-05


Some Acute and Valuable Sugges-
tions as to Safeguards
To the Editor:
The bill introduced by Mr. Cook, and
now before the special committee is one
Of paramount importance to the people
of the State, and i'm its discussion, Citi-
zen and legislator should rise above
mere partisan politics.
The statements that the bill was sug-
gested by Governor Russell, and prepar-
ed by Mr.. Justice Avery, is a strong
guarantee that it is constitutional and
legal in all it's provisions. If the bill be-
comes n statute of North Carolina, there
is no doubt but it Will be attacked at
every point, and treated i'm all its parts,
and by the ablest and most astute law
yers money can hire.
/ trust therefore that I will be pardon
ed for making some suggestions to the end
that the bill may be criticised by its
friends and strengthened in its weak
points, if there be any.
Jurisdiction is conferred on the Fed
eral courts by the constitution of the
United States article three section two,
and regulated by act of Congress
chapter seven title Judiciary of United
States Revised Statutes. The legal
mind Of our country is agreed that where
there is a conflict between an act of Con-
gress passed pursuant to the constitution,
and am act of a State legislature passed
pursuant to the State Constitution, that
the State statute must give way, and
this legal opinion is acquiesced IN by all
schools of political thought.
Now it appears TO me that any con-
tract entered into between individuals
or between corporation and a State
which undertakes to deprive a court Of
its jurisdiction. Or by which it is agreed
that one of the parties viii not avail
themselves of the jurisdiction of the
court provided by law for trial of rights,
is against the public policy, and when a
State is a party to such contracts, the
courts OF the general government will not
hesitate to declare so much of the agree
ment as attempts to deprive the Federal
courts of their Jurisdiction is against
public policy and void. If the courts Of
North Carolina should sustain the stat
ute and proceed with the trial after a
petition and order for removal pursuant
to act of Congress, a writ of
error to the Supreme court
That a foreign corporation may on petit
tion move a case from the State to the
Federal court is universally admitted ad-
mitted in the prepared act, and an at
tempt is made to prevent such removal
by the act, and it is to this that desire
to caH the attention of the legislature
and the learned lawyers, who have the
bill in charge. The bill requires the for
eign corporation 30 pay fee Of five hum
dred dollars and obtain a license before
doing business in the State. After the
license is obtained it is still a foreign
corporation, but lit is suggested that be-
fore this license lis obtained the corpor-
ation must file an agreement to not move
any case from State to Federal court.
The contract is executed so far as
paying the fee, and granting the license
and but for the agreement to not move
the case to the Federal court the cor
poration still retains its constitutional
right of removal. The contract is clearly
separable, and if a separable contract is
part void and part legal the legal shall
stand and the void fall. If the executed
part of the contract is legal and the
executory void, the executed will stand
and the executory cannot be mforced.
But it is suggested and provided IN the
act proposed, to affiX such forfeitureS
and penalties to a violation of the agree
ment to not remove, as viii deter the
foreign corporation from violating the
agreement / think it will be conceded
that no forfeiture or penalty can be en-
forced against the violation of q void
contract.
1t appears to me that rights Of a for
eign corporation to petition for and OBJ
tain a removal of it's cause to a Federal
court cannot be abridged by State stat
ute. That any agreement entered into
by such corporation and a State is void.
That an agreement to not avail itself Of
jurisdiction of the courts provided by law,
rs against public policy. How then can
the purpose of the act be accomplished,
without amy violation OF these fundament-
al principles. | suggest the propriety Of so
amending the act as to require amy cor
pOration or body of men before doing
business in this State, to file application,
and take letters of incorporation in the
State, then it becomes a domestic cor
poration, and being such it cam
not obtain a removal of the
case to the Federal court, for
the reason of such removal no longer ex-
lists. I have made the above suggestions
for the reason that should the bill be-
come a ste+1lte Of the State, the friends
Of the measure are more interested than
the enemies that it should be legal in all
it's parts and effective 10 carry out the
results contemplated.
Respectfully,
G. S. FERGUSON.
WaynesTille, n. G.