| Show McDO mcdonald it the court please the motion tor for the receiver lle celver in this case in iii submitted on the record and on the agreement of facts submitted by the parties these tarnish furnish all the law jaw and all the facts facia that can be proper properly Jy considered by this court on th this s motion there is no your honors please for parsing beyond this there can be no do appeal made to this court outside of that record but the law bribing arising upon the state of the record now before the court COUP in connection with ake agreement of the parta as to the facts relating t to the property are what is ia under udder consideration therefore your honors there e r e was no room for that appeal fao from m my young and eloquent friend from colorado who has haa so ao duly sustained the ne district attorney in the presentation of this case and there can be no purpose in it except to incite some pre prejudice juaice outside of the questions here involved and it would be scarcely permissible in m an argument before a jury your honors will therefore not expect we me to follow him in that part of his argument but to confine myself to the which this court roust must pass upon the first and most important question in the case is to determine what the law is that must auit govern tue decision of this court it appears from the record in th this case that some time prior to 1430 the provisional government of this territory called deseret Deb cret passed an ordinance of incorporation which ordinance was recognized by the first let legislative isla tive assembly that organized de the territorial government and audway was ratified and validated in the language of the act oi of congress of 1862 by the territorial act of 1855 1835 the bill hied filed in this case brines brinas in view before the court the vr validity limity and the force and the effect of two ACTS OF COX dRESSi relating to that corporation the first passed on the day ot of july 11 and the last taking effect on the third dav of march 1887 now thu the points so ably presented by my coll collea eatrue aae in hia argument upon the law question in to ania is case as als to the power of congress over this sub w eject could not perhaps be strengthened by anything I 1 might say and yet in the course of my argument I 1 find it necessary to some extent to review this proposition and first what power has congress over this the subject of making laws for a ter territory of the united states state there is no section in the constitution of tha united states that directly confers that power although section three of article four is frequently referred to iu she the courts more alien in political dis I 1 something to do with this question no jno court has ever grounded the dut authority hority to congress upon that section that section la substance is this that shall have the tac power to di dispose spore of aad make all needful rules and regulations respecting the territory or other property properly of the united states it ii was framed before there had bad been any special territorial rial legislation or in fact any necessity for it the ordin ordinance anco of 1787 governed the first territories of any ally consequence which belonged to the united states and had bad already been adopted by the congress of the united states acting under the articles of confederation and that provided so far as an instrument of that kind could for the regulation and control ot of these te teni but without attempting attempt ina to find any specific grant of power for TUB TIIE COURT of the united states has not been able to to do this we are willing to say and accept the proposition preposition that whatever legislative authora authority ty may mav be exercised in the territories of tile the united states lying outside of the limits of a state 1 s vested in Cou congress gress that has been solemnly decided by br the supreme court in more than ow one instance congress has teen been proper in most instances to constitute agencies if 11 1 I may so BO term there them to exercise this continued on pace a SUITS THE CHURCH continued from aiom paye page 64 5 power thus vested in that department of the federal government in ili the framing of territorial organizations organisations and authorizing territorial legislatures and we have today to day under consideration one of these acts the act passed parsed in 1850 for the organization of the territory of utah and I 1 may say to your honors la in passing that it was my for fortune turie to be in congress Cou gresa at that time and ito to vote for the passage of that law I 1 do not say this that your honors may oppose that I 1 I 1 am ain going to assert that because of that fact I 1 know anything I 1 more of its true meaning than your honors will know when you come to exam itle it that thai act provided for the organ organization izetto bof of a territorial Legisla legislature turea lawmaking law making power to IB the territory and conferred erred upon it the right to legi legislate klate upon all subjects of legislation reserving to congress the power to annul and disallow ay any acts passed by that le legislature Legisa ture the supreme court more recently has fald aid and properly said that that richt i would have bave existed without reserva lionso far as the mere repealing of the acts of the territorial legislature were concerned but it was expressly reserved and the important question comes up ho how w far does this RESERVED RIGHT inherent if you see proper to so regard itin the congress of the united 1 states 1 t at expressed in this act control i the question under consideration here in order that thai there might not be any delay on the part of congress on that subject the act goes goei on to provide that it shall be the duty of the S st cre tary of the tei Tein tory to report to con gress the ads acts that are passed as soon after their passage as aa it is convenient to do so the law always presumes that an officer discharges chais dis his bis duty until tale contrary appears and therefore yo your ur honors will presume as a question of law that these several acts of the L legislature isa ture toe act of ekl the tory and nd validating act of ISM 1855 were in due time rp ported to congress there has ha never been any negation of either of them except what is 10 to he be found in the acts under consideration now before I 1 consider the effect u ui lapse of aine li tie I 1 wish to say pay one word ar er two in legard to the limitation of the power of congress itself I 1 have wd said that all rightful power of legislation was vested in 10 congress but what does that embrace Is it an omd omnipotent potent power I 1 it the power of the british Is it an absolute power not so IOU long as the institutions of this country count country jy stand the supreme court of the united states has f uly illustrated the difference if practical difference there Is between the legislative authority exercised by legislative assemblies under our republican boim of government and that claimed for the par diament of Engla england niI this daff difference arence is fully stated in the case read by my colleague which came caine up from the state of virginia with wilh respect to the rights in prop arty of the Episco episcopal church burch there it t was distinctly laid down by mr justice clory that this ah isolite power that was clai nied for tile the parliament of england dudt r the british constitution DID ID NOT MIGRATE to tbt united states and never had a foothold la in this country it is au an axiom in connection with the british laws and constitution constitute I 1 that there ils 13 no limit upon the p power 0 we irmest of parliament and yet one of the g greatest judges of that cu co u ut nl perhaps any 46 justice terms that thiet e were limitations even upon that the Parlia mout had bad LO power powei to 10 pasts laws that were in conflict with natural rights now that precise question has never received a fact judicial uricial determination from the simple that the parliament of england whatever may be its theoretical power has never in point of practice or effect passed any such law since the days of magna charta down to the present tinie time practically there has not been any safiy absolute power in the government of great britain but congress possessed no more power then than it undertook to conter confer upon the territorial legislature of the territory of utah and that is to legislate upon all rightful subjects of legislation the inhibited subjects is the interference with vested right sand the disturbance of the solemnity of contracts parties differed once as to the significance of the te facts that when the constitutional convention was expressly ly taking away from the states the awer er to pass a law impairing the obligations 11 ions of con tracts it if they ever pos possessed seed it the constitution was silent as to the federal government but bat whatever differences of opinion may have exist ed ea theoretically upon that subject in regard to the power of congress on account of the prohibition applying to the states and not to the federal government ern ment the supreme court of the has put that to rest in the decisions rendered in the SINKING FUND CASKS CASES let me call your honors attention for one moment to the language used by the court in those case sand then to the language of one of the distinguished judges your honors know sorn thing of course of ef the law under consideration at that time it was the sinking fund act passed by congress in 1878 and commonly known as the ni ruurt urman nan act etwas it was challenged by the railroad companies as being unconstitutional as aa interfering with vested rights as affecting the obliga 1 tion of a contract between the anted un ted baates and those dodds A majority of the supreme court held that atilid not invalidate the contract conti act that it did not take hway to way auy any vested rights alie court was unanimous that if it hl had be been of 0 that character I 1 is would hive have been invalid three of the distin gushed guis bed members of that court judge strong judge field ana aart judge bradley from tue the majority of the court upon the question oil of the application of the law and held that it did impair the obligation of a contract but in deciding griat it id did riot abot the chief justice said the united states cai cannot inot any more than a state elate interfere with private ri rights glitA except for legitimate purposes durpos es they are arc not included inc within llie fuin coul titu dional prohibition which prevents stated from aiom pas hing bin glaws impairing the obligations of ion onti tracee acts but equally avith auth the states they are prohibited d from depriving ina persons or cor po rations ol of pi property without due pl process cass ot of law they cannot legislate bacak back to lo themselves without making compensation the lands they hae have given this ilis corporation to aid in the construction ol of iff it railroad neither can they by legislation compel the corporation to discharge its obligations in rec respect hect to tile subsidy bonds otherwise than according to tile the terms of the contract already made in that coni connection lection the united tales states areas are as much bound by then their contracts as are aie indi duals if they ieru diate their is as much repudiation with ich all the giong and reproach that that term lu iti plies as it would be if the repudiator tor had ben been a ai state or a municipality lounel pal or a citizen no change can be made anade in the title created by tile the grant ot the laud land or in the contract for the subsidy bonds aith out i lie consent of the corporation all this is indisputable now a majority of the court speaking through the chief justice held that that law did not undertake to work a change in any of these im important por particulars but simply to make certain provisions giovis lons anticipating the filling falling due of the debt to the government but as I 1 have already said to 10 your hoti honors ors three strong men on that betich two of them still there held that it impaired the con contract condrac trac and that it was therefore vold void and I 1 wish to read to you what one ot these judges said upon that subject because it is SO 80 STRIKING in its chai character acter and so 8 0 like what li he would most probably have said iii in regard to this legislation if it hid beca before him that I 1 wish to call special attention to it air justice jud ikc beadle said I 1 think that congress had no howerto pow er to pass the act of may 7 1818 either cither sis as it regards the union or lite hie central pacific rail idail road load company the power of even over thoc upon chich it ha has the right to legislate is not despotic but is subject to certain constitutional binita eions I 1 wish before proceeding further to call your honors at attention Lention to another element in this cafe cae and that la is the acts of iba and 1804 which conferred these oese rights and eriv privileges illges sad and which conferred the corporate franchise upon the union pacific railroad reserved the tap right ta V amend or to repeal now mr justian bralley in ia continuing to give his dissenting opinion said one of chec limitations is that no poison person shall alia bo be deprived ot of afe liberty or oi property without due process of f law another ith ht private property E hall not be taken for puh lic use without just and ami it a third is that the judicial power ot of the uni ted led states is ib vested in the supreme and in fei lor courtland Court Cour sand tsana not in congress it seems to me that the law in is vio liln e ol 01 al all these their spirit at latel lc bl if not ol of better and it a law jaw which io 10 lates the spirit of the constitution is is is as much as one blut violates its letter OF THAT SPECIFIC ACT and its character the learned judae further says congress takes up the question di discusses IF uses u ses and decides it busses pusses judgment e ll 11 t and proposes to issue execution and to 10 s sub u b eject the ahe companies to heavy penalties if they do not comply now he says pays that congress cannot do that under our system of government it cannot tike take t ike up a question that stands between the united states and the other r contracting party ex parte pass judgment upon it and order execution and and yet that is precisely what congress has undertaken to do in this case nothing more bothin nothing g less now with respect to this ordinance I 1 of incorporation the assistant district attorney said that it was by its own terms creative of a corporation I 1 do not think that is correct it granted a charter it is is what we now call a special charter in contradistinction to other charters formed under general laws it il is of precisely t the 11 same character in every respect as the letters patent issued by the king of great britain to the trustees tru st ees of dartmouth college that so far as the terms of the patent parent were concerned created a corporation corpora tian that is granted a special charter to the trustees of dartmouth college but before it became a corporation before there was any contract it required the acceptance by the parties name dand darld ane formation ot of a corporation tio under tinder the authority thus giver given this is what it is to forma form a corporation the mere grant of the 8 sovereign could not do it the legislature of the territory of utah could not do it but it was upon its acceptance that it became a charter and when it became a charter then the rights of those who had thus accepted it became vested in it AND WHAT IS 18 A QUARTER CHARTER what are the rights vested by it primarily and at the very foun foundation dati n so far agthe as the right ri glit is concerned it is the franchise to he be a corporation upon alib terms and conditions |
