| From the Arkansas True Democrat |
| |
| January 2, 1862 |
| |
| Mississippi, Ouachita & Red River Railroad |
| By request we publish the following extract from the
late report of J. T. Elliott Esq., President of the M. O. & R.R. R. R.,
viz: |
| If the object of the convention, in interfering with
our land grant, was to procure means therefrom for war purposes, they
made a most egregious mistake. In the first place, they by their
interference, retarded and enterprise that even with 20 miles in
operation, would have been of almost incalculable benefit to the State
at large, and especially the southern portion of our State, in the way
of transportation through the Mississippi bottom, during the war; a far
greater relief than the small sums realized from the sale of the lands
(say about twenty thousand dollars a year) would have been. Again the
building and putting in operation of twenty miles of the Road, would
have double and treble the sale of other public lands, lying contiguous
to the Road, and now owned by the State, and lands too, that in all
probability never will be entered, until your Road is in operation. |
| We will now part with the convention for awhile to give
our interview and its results, on our application to the governor, for a
deed to said lands. |
| On the 8th day of November, 1861 I made application in
writing, to Gov. Rector, for a deed to the swap lands in the
Champagnolle District; at the same time tendering him a certificate of
stock for the full amount, at which said lands are estimated by the
Auditor, to which application, I received the following reply: |
| |
| Executive Office |
| Little Rock, Nov. 9th, 1861 |
| Sir, |
| "In reply to your communication of yesterday,
requesting a deed for the lands granted to the Mississippi, Ouachita &
Red River railroad by act of the general assembly approved 16th of
January last, I have to inform you that by ordinance of the State
convention, adopted 28th May, 1861, the said lands situated in the
Champagnolle district, were appropriated as part of the revenue of the
State, for military purposes; the said ordinance declaring that the
proceeds arising from the sale thereof, shall constitute a trust
fund, subject to be appropriated by the general assembly, etc. etc.
The convention thus "defacto" exercising legislative functions have
imposed a restraint upon executive action, which forbids the execution
of the deed applied for. Besides by the act aforesaid granting the lands
a subscription of the stock by the Governor is required, as a precedent
act to invest the company with incohate title, or equity, the legal
rights remaining in the State, until the deed was passed as prescribed
by law. The communication presented, with a copy of this reply will be
placed on file, in the State department, for future reference, in any
action that may be taken by the parties interested. The certificate of
stock being herewith returned. |
| Very Respectfully, |
| H. M. Rector |
| Gov. of Arkansas |
| To Jas. Thos. Elliott |
| Pres't of the M. O. & R. R. R. Co. |
| |
| Governor Rector, it will be perceived bases his refusal
upon the grounds, first, that the convention has by ordinance adopted
May 25th, 1861, appropriated the lands situated in the Champagnolle
district, as part of the revenue of the State, for war purposes,
constituting them with other lands, (of which the State by resumption of
its sovereignty had a indefeasible title) a trust fund; the proceeds of
the sale of which were to be appropriated for the redemption of the war
bonds, issued by the State, and thus imposes a restraint on executive
action, and secondly, the act aforesaid, granting the lands, a
subscription of the stock by the Governor is required as a precedent act
to invest the company with inchoate title or equity, the legal right
remaining in the State, until the deed was passed as prescribed by law.
These propositions must of course hang together, for if the act of the
assembly vested a right in the rail road company to these lands, then
the convention, nor any other power could divest the company of its
rights, without its consent. The question then arises, was the grant a
perfect one, and complete, or did the legislature fail to accomplish its
purposes, and attempt to delegate to the Governor a power which alone
under the constitution could be exercised by them! Was this a grant of
these lands to the company, by act of the Legislature? If so that grant
could only have been defeated by the Governor's interposition of his
veto. The plain words of the act can leave no doubt as to the intention
of the legislature. It says: |
| "That the lands belonging to the State of Arkansas, in
the Champagnolle swamp land district, granted to the State by act of
Congress, approved 28th Sept. 1850, be and the same are hereby
granted to, and invested as stock in the Mississippi, Ouachita & Red
river rail road company, at the minimum prices now established by law."
and the Governor is authorized and required to subscribed for
such amount of stock in said company as is equal to the value, at said
prices, of all said lands, which are now confirmed to the State, and to
make similar subscriptions from time to time, as future confirmations of
such lands shall be made to the State. The 2nd section of the act goes
on to provide for the making of the deed for the land when the company
shall tender to the Governor a certificate of stock, for the amount
subscribed. Language cannot be made plainer. There can be no room for
quibbling upon the construction of this act. With all deference
and respect for the opinion of his excellency, I have in vain looked for
the precedent act of his, to be performed before the grant took effect.
The act does not say that when the Governor shall have subscribed for
such an amount of stock, then such a quantity of land shall be granted
to the company. It does not leave the Governor to make the grant, nor do
they leave it open to be defeated by the failure on his part to perform
his executive duty. The act was a present grant, vesting in the rail
road company, "proprio vigore" from the day of its date, title to all
the swamp lands confirmed to the State in the Champagnolle swamp land
district, and an inchoate title or equity in all lands thereafter
to be confirmed. Again the last section of the act provides "that this
act take effect, and be in force from and after its passage." Had it
have been only a conditional grant, it could not have taken effect until
the condition precedent had been complied with, and would have had no
validity, until the Governor had performed his duty, as required.
But such clearly was not the intention of the legislature, nor is such
the reading of the act. It is the province of the legislature to make
laws, and of the executive to execute them. These powers cannot be
apportioned one to the other. In my opinion, the Legislature performed
its duty, and left nothing undone to make the grant complete. The duty
of the Governor, under the act to subscribe for the stock, and to make a
deed to the lands instead of being conditions precedent to be performed
before any right vested in the company, were but plain duties imposed on
him by the constitution to take care that the laws be faithfully
executed. But the decision of the supreme court, of this State in the
case of Fletcher, et. al vs. Ford, 20th Ark., upon a case almost
analogous is conclusive upon the question. The question therein decided,
was as to the time when the act of Congress, Sept. 28th, 1850, took
effect. The first section of the act granted to the State of Arkansas,
all the swamp and overflowed lands, made thereby unfit for cultivation,
within her limits for certain purposes mentioned in the act. The second
section provided that the secretary of the interior should make out an
accurate list and plats of the lands described, and transmit the same to
the Governor of the Sate, and at the request of the Governor, cause a
patent to be issued to the State therefor, and that on that patent the
fee simple to the lands should vest in the State, subject to the
disposal of the legislature. Certainly by the terms of this act, the
grant to the State was not so clear and explicit as in that of the act
granting the lands to this company. There it provides that when the
Governor should request a deed, and the deed should be made, then the
fee simple title of the lands should vest in the State. Yet the
court in that case says that the act was a present grant vesting in the
State, proprio vigore from the day of its date title to the lands
of the particular description therein designated. Wanted nothing but the
definition of boundaries, to make it perfect, no doubt can be
entertained, etc. |
| The object of the second section was not to postpone
the vestiture of title in the State, until a patent should issue, but
was to provide for the ascertainment of boundaries, and o prevent a
premature interference with the lands by the State legislature, before
they were so designated, as to avoid mistake and confusion. "Where land
is granted by legislative enactment, and the grantee is authorized to
demand a patent for the land, his title is as much vested as if he had
the patent, which is but evidence of his title." |
| His excellency was a member of the court that
pronounced the opinion from which the foregoing is quoted, but in the
responsibilities now surrounding all of the executives of the
Confederate States, must have overlooked the fact that such a decision
had ever been rendered by the highest judicial tribune of the State,
when he declared that a subscription of stock by the Governor, was a
condition precedent before even an inchoate title or equity vested in
the rail road company, the legal title still remaining in the State. But
the supreme court declares that a legislative grant conveys the full
title, as much as if the company had a deed or patent, and that a deed
or patent would convey nothing, but would simply be an evidence of
title. No failure on the part of the Governor to perform his duty under
the act can defeat the grant. There is but one mode by which he could
have defeated it, that is by the veto of the bill. Neglect on his part
to enforce its provisions, certainly cannot destroy its validity. In my
opinion, the title of the rail road company to all the swamp lands,
confirmed to the State, in the Champagnolle swamp land district -- is
clear and indisputable -- good both in law and equity, and in all laws,
human and divine, and that the company possesses an equitable title to
all the swamp lands in said district, unconfirmed, which becomes a
perfect title to all the swamp lands in said district, unconfirmed upon
the ascertainment, and the definition of their boundaries. If the grant
is a perfect one, and of which there can be no question, and the title
of the rail road company a good one of which there is no doubt, could
the convention repeal the law, and divest the company of its rights? I
might content myself upon this branch of the question; by simply quoting
from Gov. Rector's recent message to the legislature, at its called
session. In speaking of the powers of that body he says: |
| "The powers delegated to that body was to take the
State out of the Union, annex it to the Confederate States, leaving the
State government intact, all else was usurpation. Any legislation
consequent upon the change of government, belonged to the houses of the
general assembly, and to the executive." |
| In this view of the case, any other action of that body
exercising legislative functions was necessarily void, and certainly
could afford the executive no pretext to refuse to enforce a plain
statutory law of the State. But put it upon a broader ground; concede
that the convention was clothed with full powers to change the
constitution of the State, remodel the government, and exercise full
legislative powers, would it have possessed the power to have deprived
the railroad company of its rights in these lands without its consent?
Most certainly not. By our "bill of rights;" (and which is unchangeable)
no law impairing the obligation of contracts shall ever be made. No
argument is necessary to show that this grant is, and partakes of all
the nature and incidents of a contract between the State and the
railroad company, as much so as the selling of any portion of the State
lands, to any citizen of the State, making to him a deed therefor, is a
contact. The decision of the supreme court, of this State of Arkansas,
vs. county court of Crittenden, county 19th Ark. -- 360, conclusively
establishes this position. In that case the point was, whether the State
could levy a tax on the swamp lands, sold by the State, while the law
exempting them from taxation for ten years was in force. The supreme
court held that it was a contract between the purchaser and the State,
and the exemption by law of said lands, from taxation for ten years was
a part of the contract, and the legislature levying a tax on said lands
before the expiration of ten years, "was unconstitutional, null and
void." But it may be said that the convention had the power of
abolishing the "bill of rights." Whilst denying this, suppose it was
true, at the time of the passage of the ordinance of the convention,
referred to heretofore, Arkansas was a member of the Confederate States
government, and had adopted its provisional constitution. That
constitution provided that no State shall pass any law impairing the
obligation of contracts. That constitution was the supreme law of
the land; and although the convention may have possessed the powers
above enumerated, yet its powers might have been, and were
subordinate to the constitution of the Confederate States then existing.
In a case recently decided by an eminent jurist of North Carolina, Chief
Justice Pearson; the power of a State to pass a law under any
circumstances impairing the obligation of contract was most ably
reviewed, and the power most clearly denied. In that State after its
severance from the old government, and before it became a member of the
Confederate States or the adoption of its constitution, a stay law was
passed, and the court held, that if nothing in the State constitution
had prohibited, the adoption of the constitution of the C. S. after the
passage of the act, would have ipso facto, annulled and rendered
void, so far as it was opposed to, and in conflict with the constitution
of the C. S. So much then, for the power of the convention to interfere
with this grant. I am of the opinion that the title of the R. road
company to these lands, embraced in this grant is clear and indefeasible
beyond the reach of the legislature, or of the convention, and in this
opinion, I am sustained by some of the best legal talent in the State.
Before parting with the convention, and in order to fully advise them of
their duties, should they ever be called together again, (which God
forbid) I make the following extract, from an able article, published in
the Washington Telegraph, some time in July last, edited by Jno. R.
Eakin Esq. He says: |
| "The convention was called to take into consideration
and determine the political relations of the State -- for no other
purpose. The act of the legislature calling it, was passed in view of
the troubles between the United States and the South, and was intended
to give the people and opportunity of declaring in their sovereign
capacity whether or not they would dissolve their connection with the
federal government and if they should so wish, to enable them through
the convention to do so and unite with the South. For this purpose,
and for this alone, the people voted. Let each man candidly question
himself and refer in his memory to the canvass for the convention, and
say whether or not, secession or union, was not the sole question
then in his mind. And as he voted "convention" had some kind of power
lifted the veil of the future and reveal to him that he was calling into
being a body of frail and erring mortals, who would not only withdraw
the State from the federal compact, but having done that would assume
supreme authority over all legislation -- change the constitution
without reference to the people -- annul the acts of the legislature --
establish ordinances which the regular law-making power might never be
allowed to alter or annul -- impose solemn oaths of obedience upon all
who executed the offices of the State, and adjourn with the power or
reassembling and perpetuating its power -- would he not have shrunk
aghast from the picture of so terrible a danger to his liberties, and
have suffered his right arm to have fallen from its socket before
casting the vote. |
| But it never was contemplated, no one could have
foreseen what has happened. There was nothing to call the attention to
it. Neither the act of the legislature, nor the speeches of the canvass,
nor the papers of the day, even alluded to or thought of aught but
secession. The convention was specially created for that alone. |
| When Arkansas was plucked away from the federal stem,
she became a perfect government, fully organized. There was no necessity
growing out of circumstances for he convention to assume general
legislative powers. The governor and legislature might have done all
that was necessary to secure the safety of the State, or any defects in
their power might have been supplied by amendment of the constitution.
Tennessee seceded even without any convention, and did all that was
necessary. It must not be forgotten in this connection that the
limitations of power in all legislatures were principally imposed by the
federal constitution, and that the legislatures may do all that they are
not forbidden to do. When the convention did its legitimate
business, and removed the incubus of federal restraint off from the
legislature it become ipso facto capable of exercising all the
powers of a sovereign State. It might legitimately have made war, raised
troops issued bills of credit, granted letters of marque and reprisal,
pledged the public lands, supported armies, made treaties, done anything
in fact not prohibited by its own constitution, and, unless we fail to
remember, none of these things are. Had the convention adjourned and
gone home, there would have been no need of revolution. All the
revolution now existing they made. Their services were not required, as
legislators. The body was not organized for prudent legislation about
ordinary matters -- no single bodies are. There were none of the
restrictions and safe guards against hasty action. It would do well
enough to express the opinion of the people concerning secession and our
relations with the southern States. That it should have done, and have
left other things undone. It was never asked to do otherwise. It was not
fit for it." |
| To those members of the convention, who voted for
Hobson's amendment, I, in behalf of this company tender them our sincere
thanks. To those who apparently wish to deprive us of our land grant, I
leave to their own reflections in the matter, with a wish that their
rights may never be interfered with in like manner. Entertaining the
foregoing views, I see no cause why you should not at once proceed to
dispose of your lands, I would therefore advise that they be offered for
sale at such prices as may be agreed upon by your board of directory. |
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