USA > Texas > The bench and bar of Texas > Part 19
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" For the reasons mentioned above, it is evident that there is a stronger necessity for a revision and modification of our laws than those of any other State in the Union. Be- sides, we should receive aid from the lights furnished by the successful experiments of several of our sister States. I feel entire confidence in recommending this measure to
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your attention as one calculated to be productive of vast advantage to the State.
"Our territory is so extensive and so sparsely settled that but little is yet known of its agricultural and mineral capacities. This must continue to be the case, if we wait for the slow process of settlement to develope them. It is believed that an accurate and scientific geological survey of the State will disclose sources of wealth and prosperity that would otherwise remain unknown for years ; besides giving an accurate knowledge of our mineral wealth and its locali- ties, it will doubtless show the capacity of our soil for the production of many profitable articles for export, the cultivation of which is now entirely neglected. By diffus- ing this information abroad, we shall make known the great inducements that our State offers to emigrants, and insure a large increase of population. I recommend this measure to your serious consideration.
: " I think it important that provision should be made for running and marking the boundary between Texas and the territories of the United States, from the point where it leaves Red River to where it intersects the Rio Grande. This duty might be imposed upon those who are selected to make the geological survey, without incurring much addi- tional expense. The execution of any law that may be passed on this subject would, of course, be dependent upon a law being passed by the Congress of the United States for the appointment of commissioners on her part to join in the work. It is believed that our Senators and Repre- sentatives in Congress would have no difficulty in procuring the passage of such a law, if the initiatory step be taken on our part.
"The penitentiary, as at present conducted, is a heavy expense to the State. It is believed that if the buildings were completed and enclosed with a wall, according to the original plan, and suitable workshops erected, the labor of the convicts might be let out to the highest bidder, for a term of years, for an amount more than sufficient to re- imburse the expense of their maintenance. Under such an arrangement, the contractors should be required to em -
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ploy the convicts either in manufacturing, or at such trades as would be least calculated to interfere with the mechanical industry of the State. It is hoped that this subject will receive that attention from you which its importance de- mands.
" The laws granting pre-emption rights to actual settlers upon the public domain are somewhat obscure and conflict- ing in their provisions. I think it advisable that they be revised and so changed as to grant to each settler only two hundred acres of land. This is the quantity protected by the Constitution, as a homestead to each head of a family, and is sufficient for farming purposes.
" In connection with this subject, I call your attention to the law in relation to the right of aliens to hold lands. We are daily receiving large accessions to our population, by immigration from foreign countries. The first wish of these immigrants, on their arrival here, is to secure a home and an interest in the soil; but they are now denied this privilege until they have resided here five years - the period required for their naturalization. In many of the States of the Union, laws have been passed authorizing aliens to hold lands immediately on their arrival, provided they make a declaration under oath of their intention to become citi- zens. Some of them have gone so far as to incorporate a provision in their Constitution, giving to aliens all the rights of citizens of the State at a period much earlier than they can be obtained under the naturalization laws of the United States. This policy has secured to these States a large portion of the foreign immigration for the last few years, and has added much to their productions and wealth. If the same liberal policy were here adopted, similar advan- tages could not fail to result to our State.
"The State has heretofore made ample provision for a just and equitable settlement and payment of our revolu- tionary debt, and a portion of our creditors have acceded to the settlement of their claims, and received payment therefor ; others refuse to acknowledge the right of the State to ascertain and fix the amount of her indebtedness to them, and insist upon receiving the face value of their
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claims, although they were issued by the government at rates varying from twenty to seventy cents on the dollar. In consequence of this refusal, five millions of the five per cent stock that were to have been issued under the pro- visions of the act of Congress, approved the 9th day of September, 1850, proposing to the State of Texas the es- tablishment of her northern and western boundaries, etc., are still unavailable to the State. A reasonable time has already been allowed for these creditors to accept of the terms proposed, and receive payment of the amount due them. I therefore respectfully suggest that a law shall be passed designating a time within which all holders of recog- nized claims against the State of Texas shall present them ยท to the Treasurer, accompanied with releases of all claim against the United States for or on account thereof, in the form that has been prescribed by the Secretary of the Treasury, and approved by the President of the United States, or that such claims shall be forever barred and the holders no longer recognized as creditors.
" The late period of your session at which I have an opportunity to make this communication, reminds me of the inappropriate time that the Governor enters upon the discharge of his duties. While the Legislature and the Governor are elected at the same time, about seven weeks intervene between the commencement of the labors of these different departments of government. It is believed that if they entered upon their duties simultaneously, the ses- sions of the Legislature would be less protracted, and a large amount of expenditure saved to the State, I there- fore recommend that the Constitution be so altered as to re- quire the Governor to be installed at the commencement of the regular sessions of the Legislature.
" Many other subjects of legislation, both of general and local interest, which have not here been noticed, will doubt- less suggest themselves to you.
" The situation of Texas at this time demands practical legislation.
"I trust that all sectional feelings and prejudices will be discarded from your councils, and that every measure will
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be examined and acted upon solely with reference to its merits, and the effect it may have upon the interest of the State at large.
"Our present condition is a most prosperous one, immi- gration and wealth are pouring into the State more rapidly than at any former period. A spirit of enterprise and im- provement is now abroad among our people, which, if judiciously fostered and encouraged, will at no distant period enable Texas to occupy that position among her sister States to which she is entitled from her extent of territory and great natural resources.
" It is my sincere desire that you may be able hereafter to reflect that your labors have contributed much to elevate the moral, social and political condition of the State."
In his message to the Legislature in 1855, he said : -
" I invite your attention to the importance of establish- ing a State University, which shall afford to our youth all those opportunities for obtaining a liberal education that are to be found in any part of the Union. We can not ap- preciate too highly the advantages of educating our children within the reach of parental authority, where they can daily witness the practical operation of our Government, its in- stitutions and laws, and become familiar with the habits and sympathies of the people with whom they are to asso- ciate in after life.
" To secure these advantages is worthy of an effort on the part of the State, and I recommend that the sum of three hundred thousand dollars of the United States bonds now in our treasury, be appropriated as a permanent fund to be increased by the proceeds of the gradual sale of the University lands, at not less than a minimum price, after they shall have been subdivided into small tracts, and that the income of this fund be applied to the erection and sup- port of such an institution.
" This will enable us within a few years to erect the neces- sary buildings, employ professors in every branch of litera- ture and science, and place the institution on a sure basis for future prosperity and usefulness.
"I also call your attention to the necessity of establishing
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an Asylum for Lunatics. If we had such an institution in our midst, where those who are afflicted with insanity could be promptly placed under the care of persons skilled in its causes and treatment, a large portion of those unfortunate persons might be restored to reason, and the condition of all greatly alleviated.
" We also need an institution for the education of the deaf, dumb and blind, where these unfortunate classes may be taught their duties and responsibilities as citizens, and made useful members of society.
" Institutions of this character are necessary in every community, but they can not be founded and supported without the care and patronage of the State.
" I therefore recommend that two hundred and fifty thousand dollars of the United States bonds, now in our treasury, be appropriated as a permanent fund for the erection and support of a lunatic asylum, and a like amount as a permanent fund for an institution for the edu- cation of the deaf and dumb and blind, and that provision be made for the erection of these institutions as soon as the income of these funds will permit.
" If we could create and encourage among our citizens a spirit of independence and attachment for their own State, we ought to furnish them at home with all those facilities for improving and ameliorating their mental, social and physical condition, which are to be found in other parts of the world. We now have the means of doing this without imposing onerous burden upon our citizens, and if we neg- lect to avail ourselves of this opportunity, we shall be justly charged with being unmindful of the high duties and re- sponsibilities that rest upon us.
" In compliance with the provisions of ' An Act to pro- vide for the construction of the Mississippi and Pacific Railroad,' approved the 21st of December, 1853, proposals for its construction were, in the first instance, invited, until the 1st of May, 1854, but before the arrival of that period, it became apparent that the time allowed for receiving pro- posals was too short, and it was extended to the 1st of August of the same year.
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" On the day to which the time had been extended, the propositions were opened, and it was ascertained that but one had been received which came within the provisions of the law. This was accepted, and on the 31st of August a contract was concluded for the construction of the road.
" The contractors subsegently failed to make such a de- posit as the law required, and the contract was declared to be null and void.
" Upon the failure of this contract, proposals were again invited, but none have been received.
" Some of the contractors contended, for a time, that the deposit offered was a good one, and that they were entitled to the contract. But assurances have been received from those contractors, who are citizens of Texas, which in- cludes all of them but two, that the company has never been organized, and that they consider the contract for- feited, so that the whole subject is still within the control of the State.
" It is a matter for your consideration whether this law shall be continued in force.
" The great advantages that would accrue to Texas from this road, makes it a subject of deep interest to all classes of our citizens, and should induce all to favor the measure if a reasonable hope is entertained that it will be con- structed under the law.
" As a part of a great national highway from the Missis- sippi River to the Pacific Ocean, it is probable that the liberal grant of land offered by this law, would secure its construction, provided similar inducements were, offered for the construction of a road from the Mississippi River to its point of commencement, and also for its continuation from El Paso to the Pacific Ocean. But as a mere local road from the eastern line of the State to El Paso it would not prove to be a profitable work, during the present generation.
" As far west as the Colorado River this road would pass through a region that would, in a few years furnish suffi- cient transportation and travel to make it a paying road, but until a road shall have been constructed from the
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Mississippi River to its point of commencement, the un- certainty and expense that would attend the transportation of the iron and other materials to its point of commence- ment would be so great as to deter any company from undertaking even this part of it.
" It is possible that a company may be found who will undertake the construction of this portion, provided they are allowed to construct a road upon the same terms from the head of permanent navigation on the waters of some of our bays, up to the line upon which it is proposed that the Pacific road shall run, and then east to the eastern line of the State, and west to the Colorado River.
" This change would make an immense saving in the cost for the transportation of materials, for they could be brought to the point of commencement with the same facil- ity that they could be carried to the Mississippi River, and from thence they could be transported over the road as it progresses, at an inconsiderable cost.
" It will be found, however, that it can not be con- structed at the rate of one hundred miles for each year; few if any roads in the United States have been constructed at the rate of fifty miles a year, and it will severely tax the energies of any company, whatever may be its resources, to construct a road at that rate.
" These reflections will suggest themselves to every one who takes a practical view of the subject, and should be considered by you in determining your action in regard to it.
" The present is a favorable time to revise our legisla- tion in regard to railroads generally.
" We have chartered thirty-seven railroad companies, and have held out greater inducements for their construction than were ever before offered by any government.
" It is now nearly four years since a bonus of eight sec- tions of land was offered for each mile of railroad con- structed, and nearly two years since the bonus was increased to sixteen sections a mile for each twenty-five miles.
" The result of these efforts has been, that we have one road of about thirty miles in operation, from Harrisburg on
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Buffalo Bayou to the neighborhood of Richmond on the Brazos River, and two others, "The Galveston and Red River Railway," and " The Galveston, Houston and Hender- son Railroad," in the course of construction, with a reason- able prospect, as I am informed, of completing twenty-five miles each by the 30th of January next, in time to avail themselves of the bonus of sixteen sections.
" So far as I have been able to learn, no other company is now doing any work under its charter.
" I do not think it advisable to renew any of the charters heretofore granted, or to give relief to any company organ- ized under them, unless such company is now actually at work upon its road, and can show that it has expended a considerable amount of money thereon, and has the ability within a very short period, to complete the number of miles necessary to entitle it to land under the laws now in force.
" No new charter should be granted over a route where a road is already being constructed, or so near such route as materially to impair its value. .
" Every railroad company should be required to hold all meetings, for the election of its officers, within the State, and to have a majority of its directors resident citizens thereof, and also to keep its principal office for the manage- ment of its affairs within the State.
" By adhering to these rules we shall correct many of the errors that have attended our past legislation on the sub- ject.
" I am unwilling that any new charters shall be granted to individuals for their own benefit. If new charters are necessary, let such routes be selected as the wants and busi- ness of the country require ; designate their points of com- mencement and termination, and grant charters to commissioners who should be required to open books for the subscription of stock, after giving public notice. No sub- scription should be received unless five per cent thereof is paid at the time of subscribing, and whenever the percentage on the capital stock subscribed shall amount to one hundred thousand dollars, let the commissioners be authorized to call a meeting of the subscribers and hold an election for officers;
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after which the subscribers should become a corporation with all such powers as are set forth in the charter. The commissioners should have no right under the charter, ex- cept as trustees, for the benefit of the subscribers when they organize and become a corporation, and should be liable to a heavy penalty for receiving subscriptions of stock without the payment of five per cent thereof in cash. The corporation thus organized should have authority from time to time to receive further subscriptions to its capital stock, to the full amount thereof, after giving public notice, the subscribers in all cases paying five per cent of their stock at the time of subscribing.
" If we pursue this course, our railroad charters will cease to be offered for sale by individuals who have obtained them for purposes of speculation. Those who wish to construct railroads will obtain charters without paying a premium to the persons who have induced the Legislature to pass them, and we shall have no more companies organ- ized without capital to impose on the credulous and unwary, and stand in the way of those who have the disposition and means to construct railroads.
" While so little has been accomplished under the policy heretofore pursued by the State for the encouragement of railroads, it becomes us to consider well what we may reasonably expect to be done hereafter by a continuance of this policy.
" The Buffalo Bayou, Brazos and Colorado Railroad Company will undoubtedly complete its road as far as Rich- mond during the present year. The Galveston and Red River Railway Company, and the Galveston, Houston and Henderson Railroad Company expect to complete twenty-five miles of their respective roads by the 30th of January. 1856, so as to secure the bonus of sixteen sections to the mile.
" These companies will then have to continue their roads at the rate of twenty-five miles a year or lose the benefit of the bonus of sixteen sections. If they fail to do this, the Harrisburg company and the Henderson company may still have the benefit of the bonus of eight sections, but the
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latter to secure even this, will have to construct an addi- tional fifteen miles on or before the 1st of March, 1857, to save its charter.
"The Houston company has already lost the benefit of the bonus of eight sections by failing to complete ten miles of its road within the time prescribed by its charter.
"It is possible that some of the other companies may be able to avail themselves of the sixteen section bonus, as only those which terminate on the Gulf coast, the bays thereof, or on Buffalo Bayou, are subject to the provision which requires the construction of twenty-five miles on or before the 30th day of January, 1856, though it is believed that few, if any of them, will ever build road enough to save their charters.
"It is not generally supposed that either of the three companies before named will be able to construct their roads at the rate of twenty-five miles a year after the 30th of January next, so as to secure the sixteen section bonus, unless they are assisted by a liberal loan of money from the State. We can not, therefore, expect that much prog- ress will be made for many years to come in the construction of railroads in this State by private corporations, beyond the completion of those tracks already graded, unless such a loan shall be authorized, or that provision of the act donating lands to railroads, which requires these companies to construct twenty-five miles a year, is repealed, for it is generally conceded that they will not, at present, yield a sufficient profit to induce individuals to invest capital in them, without the advantages to be derived from the land bonus.
" The passage of a law, similar to that attempted at your last session, authorizing the loan of eight thousand dollars a mile, might enable these three companies, if they were to have the sole benefit of it, to extend their roads about seventy-five miles in the next three years ; this, it is true, would afford great relief to those sections of the State accessible to them, but it would be those sections that are least in need of railroad facilities, for they are already nearest to a market, and would leave the greater part of the State, which
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is now suffering for want of such facilities, in the same destitute situation it now is, without any certain prospect of being supplied.
" What our citizens need is a general system of internal improvements by railroads, river improvement and canal -. that will extend its benefits to every section of the State a- near as practicable, and give them a cheap transportation of their productions to a market."
In 1872, Attorney-General Alexander gave to A. Bledsoe, the Controller, his opinion that the act to incorporate the International Railroad Company and to provide for the aid of the State in its construction, was a special or private act, and that the Secretary of State viewing it in this light had caused it to be printed in the volume of special laws, and that, therefore, the State Treasurer could not lawfully sign the bonds which the Legislature had authorized to be issued in favor of the railroad company.
At the request of Mr. Honey, the State Treasurer, and the railroad authorities, Gov. Pease expressed his written opinion in regard to the matter; which he rendered in a letter to the Treasurer in April, 1872. In this opinion he took the grounds that the character of an act of the Legislature must be determined by the general principles of the law which define what are public and what are pri- vate statutes ; that this can not sometimes be easily deter- mined, from the fact that statutes often relate to matters which partake of both a public and private character. The definition rendered by the most precise writers is that public statutes relate to the State, or to the people in their corporate capacity, and private statutes concern only the interest or benefit of certain individuals or particular classes of men.
Statutes are generally intended to be public, and a pri- vate statute is an exception to the rule. According to these principles the act in question should be considered a public statute. This is indicated both by its title and purpose, which relate both to the State and the people at large. The act grants bonds of the State to the railroad company and requires that they shall be signed by the Governor and
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Treasurer, and countersigned and registered by the Con- troller, and to be then delivered by the Governor to the proper officer of the company, whenever it should be proven, as provided by the act, that the company had com- plied with certain conditions. That the Controller should then cause a tax to be assessed upon all taxable property in the State, and upon all occupations, proportioned to the taxes levied by general law for a sum sufficient to pay the interest on the bonds.
Gov. Pease contended that these explicit provisions clearly created a debt against the State, and provided for its pay- ment by taxation in the manner provided by the Constitu- tion; that it is the presumption of law that all statutes enacted by the Legislature are constitutional, and that, therefore, it is the duty of the officers of the State to carry their provisions into effect until they are declared uncon- stitutional by a competent judicial tribunal, unless they are enjoined from doing so by competent authority. Other- wise, if any officer of the State could refuse to carry out the provisions of the law which did not conform to his ideas of the Constitution the worst confusion and anarchy would be the result.
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