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Piqua Branch of the State Bank of Ohio v. Knoop/Dissent Catron

Mr. Justice CATRON.

This is a contest between the State of Ohio and a portion of her banking institutions, organized under a general banking law, passed in 1845. She was then a wealthy and prosperous community, and had numerous banks which employed a large capital, and were taxed by the general laws five per cent. on their dividends, being equal to thirty cents on each hundred dollars' worth of stock, supposing it to be at par value. But this was merely a State tax, payable into the State treasury. The old banks were liable to taxes for county purposes, besides; and when located in cities or towns, for corporation taxes also. These two items usually amounted to much more than the State tax.

Such was the condition of Ohio when the general banking law was passed in 1845. By this act, any number of persons not less than five might associate together, by articles, to carry on banking.

The State was laid off into districts, and the law prescribes the amount of stock that may be employed in each. Every county was entitled to one bank, and some to more. Commissioners were appointed to carry the law into effect. It was the duty of this Board of Control to judge of the articles of association, and other matters necessary to put the banks into operation. Any company might elect to become a branch of the State Bank, or to be a separate bank, disconnected with any other. Fifty thousand dollars was the minimum, and five hundred thousand the maximum, that could be employed in any one proposed institution.

By the fifty-first section, each of the banking companies authorized to carry on business was declared to be a body corporate with succession to the first day of May, 1866, with general banking powers; with the privilege to issue notes of one dollar and upwards, to one hundred dollars; and each bank was required to have 'on hand in gold and silver coin, or their equivalent, one half at least of which shall be in gold and silver coin in its vault, an amount equal to thirty per cent. of its outstanding notes of circulation;' and whenever the specie on hand, or its equivalent, shall fall below twenty per cent. of the outstanding notes, then no more notes shall be circulated.' The equivalent to specie, meant deposites that might be drawn against in the hands of eastern banks, or bankers of good credit. In this provision constituted the great value of the franchise.

The 59th section declares that semiannual dividends shall be made by each bank of its profits, after deducting expenses; and the 60th section provides, that six per cent. per annum of these profits shall be set off to the State, 'which sum or amount so set off shall be in lieu of all taxes to which such company, or the stockholders thereof on account of stock owned therein, would otherwise be subject.' This was equal to thirty-six cents per annum on each hundred dollars of stock subscribed, supposing it to yield six per cent. interest.

By an act of 1851, it was declared that bank stock should be assessed at its true value, and that it should be taxed for State, county, and city purposes, to the same extent that personal property was required to be taxed at the place where the bank was located. As this rate was much more than that prescribed by the 60th section of the act of 1845, the bank before us refused to pay the excess, and suffered herself to be sued by the tax collector, relying on the 60th section, above recited, as an irrepealable contract, which stood protected by the Constitution of the United States.

It is proper to say that the trifling sum in dispute in this cause is the mere ground of raising the question between the State of Ohio and some fifty of her banks, claiming exemption under the act of 1845.

The taxable property of these banks is about eighteen millions of dollars, according to the auditor's report of last year, and which was used on the argument of this cause, by both sides. Of course, the State officers, and other tax payers, assailed the corporations claiming the exemption, and various cases were brought before the Supreme Court of Ohio, drawing in question the validity of the act of 1851 in so far as it increased the taxes of the banks beyond the amount imposed by the 60th section of the act of 1845. The State court sustained the act of 1851, from which decision a writ of error was prosecuted, and the cause brought to this court.

The opinions of the State court have been laid before us, for our consideration; and on our assent or dissent to them, the case depends.

The first question made and decided in the Supreme Court of Ohio was, whether the 60th section of the act of 1845, purported to be in its terms, a contract not further to tax the banks organized under it during the entire term of their existence? The court held that it imported no such contract; and with this opinion I concur.

The question was examined by the judge who delivered the unanimous opinion of the court, in the case of Debolt v. The Ohio Life Insurance and Trust Company, 1 Ohio State Reports, 564, with a fairness, ability, and learning, calculated to command the respect of all those who have his opinion to review; and which opinion has, as I think, construed the 60th section truly. But, as my brother Campbell has rested his opinion on this section without going beyond it, and as I concur in his views, I will not further examine that question, but adopt his opinion in regard to it.

The next question, decided by the State court is of most grave importance; I give it in the language of the State court: 'Had the general assembly power, under the constitution then in force, permanently to surrender, by contract, within the meaning and under the protection of the Constitution of the United States, the right of taxation over any portion of the property of individuals, otherwise subject to it?' On which proposition the court proceeds to remark:

'Our observations and conclusions upon this question, must be taken with reference to the unquestionable facts, that the act of 1851 was a bon a fide attempt to raise revenue by an equal and uniform tax upon property, and contained no covert attack upon the franchises of these institutions. That the surrender did not relate to property granted by the State, so as to make it a part of the grant for which a consideration was paid; the State having granted nothing but the franchise, and the tax being upon nothing but the money of individuals invested in the stock; and that no bonus or gross sum was paid in hand for the surrender, so as to leave it open to controversy, that reasonable taxes, to accrue in future, were paid in advance of their becoming due. What effect a different state of facts might have, we do not stop to inquire. Indeed, if the attempt has here been made, it is a naked release of sovereign power without any consideration or attendant circumstance to give it strength or color; and, so far as we are advised, is the first instance where the rights and interests of the public have been entirely overlooked.'

'Under these circumstances, we feel no hesitation in saying the general assembly was incompetent to such a task. This conclusion is drawn from a consideration of the limited authority of that body, and the nature of the power claimed to be abridged.

'That political sovereignty, in its true sense, exists only with the people, and that government is 'founded on their sole authority,' and subject to be altered, reformed, or abolished only by them, is a political axiom upon which all the American governments have been based, and is expressly asserted in the bill of rights. Such of the sovereign powers with which they were invested, as they deem necessary for protecting their rights and liberties, and securing their independence, they have delegated to governments created by themselves, to be exercised in such manner and for such purposes as were contemplated in the delegation. That these powers can neither be enlarged or diminished by these repositories of delegated authority, would seem to result, inevitably, from the fundamental maxim referred to, and to be too plain to need argument or illustration.

'If they could be enlarged, government might become absolute; if they could be diminished or abridged, it might be stripped of the attributes indispensable to enable it to accomplish the great purposes for which it was instituted. And, in either event, the constitution would be made, either more or less, than it was when it came from the hands of its authors; being changed and subverted without their action or consent. In the one event its power for evil might be indefinitely enlarged; while in the other its capacity for good might be entirely destroyed; and thus become either an engine of oppression, or an instrument of weakness and pusillanimity.

'The government created by the constitution of this State, (Ohio,) although not of enumerated, is yet one of limited powers. It is true, the grant to the general assembly of 'legislative authority' is general; but its exercise within that limit is necessarily restrained by the previous grant of certain powers to the federal government, and by the express limitations to be found in other parts of the instrument. Outside of that boundary, it needed no express limitations, for nothing was granted. Hence this court held, in Cincinnati, ''Wilmington, &c. R. R. v. Clinton Co.,'' 1 Ohio State Rep. 77, that any act passed by the general assembly not falling fairly within the scope of 'legislative authority,' was as clearly void as though expressly prohibited. So careful was the convention to enforce this principle, and to prevent the enlargement of the granted powers by construction or otherwise, that they expressly declared in art. 8, § 28-'To guard against the transgression of the high powers we have delegated, we declare that all powers, not hereby delegated, remain with the people.' When, therefore, the exercise of any power by that body is questioned, its validity must be determined from the nature of the power, connected with the manner and purpose of its exercise. What, then, is the taxing power? And to what extent, and for what purposes has it been conferred upon the legislature? That it is a power incident to sovereignty-'a power of vital importance to the very existence of every government'-has been as often declared as it has been spoken of. Its importance is not too strongly represented by Alexander Hamilton, in the 30th number of the Federalist, when he says: 'Money is with propriety considered as the vital principle of the body politic; as that which sustains its life and motion, and enables it to perform its most important functions. A complete power, therefore, to procure a regular and adequate supply of revenue, as far as the resources of the community will permit, may be regarded as an indispensable ingredient in every constitution. From a deficiency in this particular, one of two evils must ensue; either the people must be subjected to continual plunder, as a substitute for a more eligible mode of supplying the public wants, or the government must sink into a fatal atrophy, and in a short course of time perish.'

'This power is not to be distinguished, in any paticular material to the present inquiry, from the power of eminent domain. Both rest upon the same foundation-both involve the taking of private property-and both, to a limited extent, interfere with the natural right guaranteed by the constitution, of acquiring and enjoying it. But, as this court has already said, in the case referred to, 'neither can be classed amongst the independent powers of government, or included in its objects and ends.' No government was ever created for the purpose of taking, taxing, or otherwise interfering with the private property of its citizens. 'But charged with the accomplishment of great objects necessary to the safety and prosperity of the people, these rights attach as incidents to those objects, and become indispensable means to the attainment of those ends.' They can only be called into being to attend the independent powers, and can never be exercised without an existing necessity.

'To sustain this power in the general assembly, would be to violate all the great principles to which I have alluded. It would affirm its right to deal in, and barter away the sovereign right of the State, and thereby, in effect, to change the constitution. When the general assembly of 1845 convened, it found the State in the unquestionable possession of the sovereign right of taxation, for the accomplishment of its lawful objects, extending to 'all the persons and property belonging to the body politic."

When its successor convened, in 1846, under the same constitution, and to legislate for the same people, if this defence is available, it found the State shorn of this power over fifteen or twenty millions of property, still within its jurisdiction and protected by its laws. This and each succeeding legislature had the same power to surrender the right, as to any and all other property; until at length the government, deprived of every thing upon which it could operate, to raise the means to attain its necessary ends, by the exercise of its granted powers, would have worked its own inevitable distruction, beyond all power of remedy, either by the legislature or the people. It is no answer to this to say that confidence must be reposed in the legislative body, that it will not thus abuse the power.

'But, in the language of the court, in McCulloch v. Maryland, 4 Wheat. 316, 'is this a case of confidence?"

'For every surrender of the right to tax particular property not only tends to paralyze the government, but involves a direct invasion of the rights of property, of the balance of the community; since the deficiency thus created must be made up by larger contributions from them, to meet the public demand.'

The foregoing are some of the reasonings of the State court on the consideration here involved. With these views I concur, and will add some of my own. The first is, 'That acts of parliament derogatory from the power of subsequent legislatures, are not binding. Because, (as Blackstone says,) the legislature being in truth the sovereign power, is always equal, always absolute; and it acknowledges no superior on earth, which the prior legislature must have been if its ordinances could bind a subsequent parliament. And upon the same principle Cicero, in his letters to Atticus, treats with proper contempt these restraining clauses which endeavor to tie up the hands of succeeding legislatures. When you repeal the law itself, says he, you at the same time repeal the prohibitory clause which guards against repeal.'

If this is so under the British government, how is it in Ohio? Her Supreme Court holds that the State constitution of 1802 expressly prohibited one legislature from restraining its successors by the indirect means of contracts exempting certain property, from taxation. The court says,-Power to exempt property, was reserved to the people; they alone could exempt, by an organic law. That is to say, by an amended constitution. The clause mainly relied on declares, 'that all powers not delegated, remain with the people.' Now it must be admitted that this clause has a meaning; and it must also be conceded (as I think,) that the Supreme Court of Ohio, has the uncontrollable right to declare what that meaning is; and that this court has just as little right to question that construction as the Supreme Court of Ohio has to question our construction of the Constitution of United States.

In my judgment the construction of the court of Ohio is proper; but if I believed otherwise I should at once acquiesce. Let us look at the matter fairly and truly as it is, and see what a different course on part of this court would lead to; nay, what Ohio is bound to do in self-defence and for self-preservation, under the circumstances.

In 1845 a general banking law is sought at the hands of the legislature, where five dollars in paper can be circulated for every dollar in specie in the bank, or on deposit, in eastern banks or with brokers. One dollar notes are authorized; every county in the State is entitled to a bank, and the large ones to several; the tempting lure is held out of six per cent. interest on five hundred dollars for every hundred dollars paid in as stock: thus obtaining a profit of twenty-four dollars on each hundred dollars actually paid in. That such a bill would have advocates enough to pass it through the legislature, all experience attests; and that the slight tax of thirty-six cents on each hundred dollars' worth of stock, subscribed and paid, was deemed a privilege, when the existing banks and other property were taxed much higher, is plainly manifest. As was obvious, when the law passed, banks sprang up at once-some fifty in number having a taxable basis last year of about eighteen millions. The elder and safer banks were, of course, driven out, and new organizations sought under the general law, by the stockholders. From having constructed large public works, and made great expenditures, Ohio has become indebted so as to require a very burdensome tax on every species of property; this was imposed by the act of 1851, and on demanding from these institutions their equal share, the State is told that they were protected by a contract made with the legislature of 1845, to be exempt from further taxation, and were not bound by the late law, and, of course, they were sued in their own courts. The Supreme Court holds that by the express terms of the State constitution no such contract could be made by the legislature of 1845, to tie up the hands of the legislature of 1851. And then the banks come here and ask our protection against this decision, which declares the true meaning of the State constitution. It expressly guarantees to the people of Ohio the right to assemble, consult, 'and instruct their representatives for their common good;' and then 'to apply to the legislature for a redress of grievances.' It further declares, that all powers not conferred by that constitution on the legislature are reserved to the people. Now, of what consequence or practical value will these attempted securities be if one legislature can restrain all subsequent ones by contracting away the sovereign power to which instructions could apply?

The question, whether the people have reserved this right so as to hold it in their own hands, and thereby be enabled to regulate it by instructions to a subsequent legislature, (or by a new constitution,) is a question that has been directly raised only once, in any State of the Union, so far as I know. In the case of Brewster v. Hough, 10 New Hampshire Reports, 139, it was raised, and Chief Justice Parker, in delivering the opinion of the court in a case in all respects like the one before us, says, 'That it is as essential that the public faith should be preserved inviolate as it is that individual grants and contracts should be maintained and enforced. But there is a material difference between the right of a legislature to grant lands, or corporate powers, or money, and a right to grant away the essential attributes of sovereignty or rights of eminent domain. These do not seem to furnish the subject-matter of a contract.'

This court sustained the principle announced by the Supreme Court of New Hampshire, in the West River Bridge case. A charter for one hundred years, incorporating a bridge company, had been granted; the bridge was built and enjoyed by the company. Then another-law was passed authorizing public roads to be laid out, and free bridges to be erected; the commissioners appropriated the West River Bridge and made it free; the Supreme Court of Vermont sustained the proceeding on a review of that decision. And this court held that the first charter was a contract securing the franchises and property in the bridge to the company; but that the first legislature could not cede away the sovereign right of eminent domain, and that the franchises and property could be taken for the uses of free roads and bridges, on compensation being made.

Where the distinction lies, involving a principle, between that case and this, I cannot perceive, as every tax-payer is compensated by the security and comfort government affords. The political necessities for money are constant and more stringent in favor of the right of taxation; its exercise is required daily to sustain the government. But in the essential attributes of sovereignty the right of eminent domain and the right of taxation are not distinguishable.

If the West River Bridge case be sound constitutional law (as I think it is) then it must be true that the Supreme Court of Ohio is right in holding that the legislature of 1845 could not deprive the legislature of 1851 of its sovereign powers or of any part of them.

It is insisted, that the case of the State of Ohio v. The Commercial Bank of Cincinnati, 7 Ohio Rep. 125, has held otherwise. This is clearly a mistake. The State in that case raised no question as to the right of one legislature to cede the sovereign power to a corporation, and tie up the hands of all subsequent legislatures: no such constitutional question entered into the decision; nor is any allusion made to it in the opinion of the court. It merely construed the acts of assembly, and held that a contract did exist on the ground that by the charter the bank was taxed four per cent.; and therefore the charter must be enforced, as this rate of taxation adhered to the charter, and excluded a higher imposition.

It would be most unfortunate for any court, and especially for this one, to hold that a decision affecting a great constitutional consideration, involving the harmony of the Union, (as this case obviously does,) should be concluded by a decision in a case where the constitutional question was not raised by counsel; and so far from being considered by the court, was never thought of: such a doctrine is altogether inadmissible. And in this connection I will say, that there are two cases decided by this court, (and relied on by the plaintiff in error,) in regard to which similar remarks apply. The first one is that of New Jersey v. Wilson, 7 Cranch, 164. An exchange of lands took place in 1758 between the British colony of New Jersey and a small tribe of Indians residing there. The Indians had the land granted to them by an act of the colonial legislature, which exempted it from taxes. They afterwards sold it, and removed. In 1804, the State legislature taxed these lands in the hands of the purchasers; they were proceeded against for the taxes, and a judgment rendered, declaring the act of 1804 valid. In 1812, the judgment was brought before this court, and the case submitted on the part of the plaintiff in error without argument; no one appearing for New Jersey. This court held the British contract with the Indians binding; and, secondly, that it run with the land which was exempt from taxation in the hands of the purchasers.

No question was raised in the Supreme Court of New Jersey, nor decided there, or in this court, as to the constitutional question of one legislature having authority to deprive a succeeding one of sovereign power. The question was not considered, nor does it seem to have been thought of in the State court or here.

The next case is Gordon's case, 3 Howard, 144. What questions were there presented on the part of the State of Maryland, does not appear in the report of the case, but I have turned to them in the record, to see how they were made in the State courts. They are as follows:

'1st. That at the time of passing the general assessment law of 1841, there was no contract existing between the State and the banks, or any of them, or the stockholders therein or any of them, by which any of the banks or stockholders can claim an exemption from the taxation imposed upon them by the said act of 1841.'

'2d. That the contract between the State and the old banks, if there be any contract, extends only to an exemption from further 'taxes or burdens,' of the corporate privileges of banking; and does not exempt the property, either real or personal, of said banks, or the individual stockholders therein.'

'3d. That even if the contract should be construed to exempt the real and personal property of the old banks, and the property of the stockholders therein, yet such exemption does not extend to the new banks, or those chartered since 1830, and, moreover that the power of revocation, in certain cases in these charters, reserves to the State the power of passing the general assessment law.'

'4th. That the imposition of a tax of 20 cents upon every one hundred dollars' worth of property; upon both the old and new banks, under the said assessment law, is neither unequal nor oppressive, nor in violation of the bill of rights.'

'5th. That taxation upon property within the State, wherever the owners may reside, is not against the bill of rights.'

On these legal propositions the opinion here given sets out by declaring that, 'The question, however, which this court is called on the decide, and to which our decision will be confined, is-Are the shareholders in the old and new banks, liable to be taxed under the act of 1841, on account of the stock which they own in the banks.'

The following paragraph is the one relied on as adjudging the question, that the taxing power may be embodied in a charter and contracted away as private property, to wit: 'Such a contract is a limitation on the taxing power of the legislature making it, and upon succeeding legislatures, to impose any further tax on the franchise.'

'But why, when bought, as it becomes property, may it not be taxed as land is taxed which has been bought from the State, was repeatedly asked in the course of the argument. The reason is, that every one buys land, subject in his own apprehension to the great law of necessity, that we must contribute from it and all of our property something to maintain the State. But a franchise for banking, when bought, the price is paid for the use of the privilege whilst it lasts, and any tax upon it would substantially be an addition to the price.'

As the case came up from the Supreme Court of Maryland, this court had power merely to re examine the questions raised in the court below, and decided there. All that is asserted in the opinion beyond this is outside of the case of which this court had jurisdiction, and is only so far to be respected as it is sustained by sound reasoning; but its dicta are not binding as authority; and so the Supreme Court of Maryland held in the case of the ''Mayor, &c. of Baltimore v. The Baltimore and Ohio Railroad Company,'' 6 Gill, 288.

The State of Maryland merely asked to have her statutes construed, and if, by their true terms, she had promised to exempt the stockholders of her banks from taxation, then she claimed no tax of them. She took no shelter under constitutional objections, but guardedly avoided doing so.

If an expression of opinion is authority that binds, regardless of the case presented, then we are as well bound the other way, by another quite equal authority. In the case of East Hartford v. Hartford Bridge Co. 10 Howard, 535, Mr. Justice Woodbury, delivering the opinion of the court, says: The case of Goszler v. The Corporation of Georgetown, 6 Wheat. 596, 598, 'appears to settle the principle that a legislative body cannot part with its powers by any proceeding so as not to be able to continue the exercise of them. It can, and should, exercise them again and again, as often as the public interests require.'. . ..

'Its members are made, by the people, agents or trustees for them, on this subject, and can possess no authority to sell or grant their power over the trust to others.'

The Hartford case was brought here from the Supreme Court of Connecticut, by writ of error, on the ground that East Hartford held a ferry right secured by a legislative act that was a private contract. But this court held, among other things that, by a true construction of the State laws, no such contract existed; so that this case cannot be relied on as binding authority more than Gordon's case. If fair reasoning and clearness of statement are to give any advantage, then the Hartford case has that advantage over Gordon's case.

It is next insisted that the State legislatures have in many instances, and constantly, discriminated among the objects of taxation; and have taxed and exempted according to their discretion. This is most true. But the matter under discussion is aside from the exercise of this undeniable power in the legislature. The question is whether one legislature can, by contract, vest the sovereign power of a right to tax, in a corporation as a franchise, and withhold the same power that legislature had to tax, from all future ones? Can it pass an irrepealable law of exemption?

General principles, however, have little application to the real question before us, which is this: Has the constitution of Ohio withheld from the legislature the authority to grant, by contract with individuals, the sovereign power; and are we bound to hold her constitution to mean as her Supreme Court has construed it to mean? If the decisions in Ohio have settled the question in the affirmative that the sovereign political power is not the subject of an irrepealable contract, then few will be so bold as to deny that it is our duty to conform to the construction they have settled; and the only objection to conformity that I suppose could exist with any one is, that the construction is not settled. How is the fact?

The refusal of some fifty banks to pay their assessed portion of the revenue for the year 1851, raised the question for the first time in the State of Ohio; since then the doctrine has been maintained in various cases, supported unanimously by all the judges of the Supreme Court of that State, in opinions deeply considered, and manifesting a high degree of ability in the judges, as the extract from one of them, above set forth, abundantly shows. If the construction of the State constitution is not settled, it must be owing to the recent date of the decisions. An opinion proceeding on this hypothesis will, as I think, involve our judgment now given in great peril hereafter; for if the courts of Ohio do not recede, but firmly adhere to their construction until the decisions, now existing, gain maturity and strength by time, and the support of other adjudications conforming to them, then it must of necessity occur that this court will be eventually compelled to hold that the construction is settled in Ohio; when it must be followed to avoid conflict between the judicial powers of that State and the Union, an evil that prudence forbids.

1. The result of the foregoing opinion is, that the sixtieth section of the general banking law of 1845 is, in its terms, no contract professing to bind the Legislature of Ohio not to change the mode and amount of taxation on the banks organized under this law; and for this conclusion I rely on the reasons stated by my brother Campbell, in his opinion, with which I concur.

2. That, according to the constitutions of all the States of this Union, and even of the British Parliament, the sovereign political power is not the subject of contract so as to be vested in an irrepealable charter of incorporation, and taken away from, and placed beyond the reach of, future legislatures; that the taxing power is a political power of the highest class, and each successive legislature having vested in it, unimpaired, all the political powers previous legislatures had, is authorized to impose taxes on all property in the State that its constitution does not exempt.

It is undeniably true that one legislature may by a charter of incorporation exempt from taxation the property of the corporation in part, or in whole, and with or without consideration; but this exemption will only last until the necessities of the State require its modification or repeal.

3. But if I am mistaken in both these conclusions, then, I am of opinion that, by the express provisions of the constitution of Ohio, of 1802, the legislature of that State had withheld from its powers the authority to tie up the hands of subsequent legislatures in the exercise of the powers of taxation, and this opinion rests on judicial authority that this court is bound to follow; the Supreme Court of Ohio having held by various solemn and unanimous decisions, that the political power of taxation was one of those reserved rights intended to be delegated by the people to each successive legislature, and to be exercised alike by every legislature according to the instructions of the people. This being the true meaning of the nineteenth and twenty-eighth sections of the bill of rights, forming part of the constitution of 1802; one section securing the right of instructing representatives, and the other protecting reserved rights held by the people.

Whether this construction given to the State constitution is the proper one, is not a subject of inquiry in this court; it belongs exclusively to the State courts, and can no more be questioned by us than State courts and judges can question our construction of the Constitution of the United States. For these reasons I am of opinion that the judgment of the Supreme Court of Ohio should be affirmed.


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Piqua Branch of the State Bank of Ohio v. Knoop/Dissent Campbell

Mr. Justice CAMPBELL.

I dissent from the opinion of the court.

The question disclosed by the record, is contained in the sixtieth section of an act of the General Assembly of Ohio, 'to incorporate the State Bank of Ohio and other banking companies of that State,' adopted February, 1845.

The section provides, that every banking company organized by the act, or complying with its provisions, shall semiannually, at designated days, set off to the State, six per cent. of the net profits for the six months next preceding, 'which sum or amount so set off shall be in lieu of all taxes to which such company, or the stockholders thereof, on account of stock owned therein,' would otherwise be subject;' and the cashier was required to report the amount to the auditor and to pay it to the treasurer; but in computing the profits of the company for the purposes aforesaid, the interest received on the certificates of the funded debt held by the company, or deposited with and transferred to the treasurer of the State, or to the board of control by such company, shall not be taken into the account.' I have extracted the last clause merely because it forms a part of the section.

It is not usual for governments to levy taxes upon the certificates of their funded debt, and Ohio had, in an early statute, forbidden taxation of hers. This clause was a cumulative precaution, wholly unnecessary. Swan Stat. 747, § 5.

The case lies in the solution of the question whether the clause directing the banks to set apart semiannually, upon the profits for the six months preceding, six per cent. in lieu of all other taxes to which the company or the stockholders would otherwise be subject on account of the stock, institutes an unalterable rule of taxation for the whole time of the corporate existence of these banks? The General Assembly of Ohio thinks otherwise, and has imposed a tax upon the stock of the banks, corresponding with the taxes levied upon other personal property held in the State. The payment of this tax has been resisted by the banks. The Supreme Court of Ohio, by its judgment, affirms the validity of the act of the general assembly, and has condemned the bank to the payment. This judgment is the matter of consideration.

The section of the act above cited furnishes a rule of taxation, and while it remains in force a compliance with it relieves the banks from all other taxes to which they would otherwise be subject. Such is the letter of the section.

The question is, has the State of Ohio inhibited herself from adopting any other rule of taxation either for amount or mode of collection, while these banks continue in existence? It is not asserted that such a prohibition has been imposed by the express language of the section. The term for which this rule of taxation is to continue is not plainly declared. The amounts paid according to it discharge the taxes for the antecedent six months. Protection is given in advance of exaction.

The clause in the section, that this 'sum or amount, so set off, shall be in lieu of all taxes to which such company or the stockholders thereof would otherwise be subject,' requires an addition to ascertain the duration of the rule. It may be completed in adding, 'by the existing laws for the taxation of banks,' or 'till otherwise provided by law,' or at 'the date of such apportionment or dividend.' Or, following the argument of the banks, in adding, 'during the existence of the banks.' Whether we shall select from the one series of expressions, leading to one result, or the expression leading to another altogether different, depends upon the rules of interpretation applicable to the subject.

The first inquiries are of the relations of the parties to the supposed contract to its subject-matter, and the form in which it has been concluded. The sixtieth section of the act of 1845, was adopted by the General Assembly of Ohio in the exercise of legislative powers, as a part its public law. The powers of that assembly in general, and that of taxation especially, are trust powers, held by them as magistrates, in deposite, to be returned, after a short period, to their constituents without abuse or diminution.

The nature of the legislative authority is inconsistent with an inflexible stationary system of administration. Its office is one of vigilance over the varying wants and changing elements of the association, to the end of ameliorating its condition. Every general assembly is organized with the charge of the legislative powers of the State; each is placed under the same guidance, experience, and observation; and all are forbidden to impress finally and irrevocably their ideas or policy upon the political body. Each, with the aid of an experience, liberal and enlightened, is bound to maintain the State in the command of all the resources and faculties necessary to a full and unshackled self-government. No implication can be favored which convicts a legislature of a departure from this law of its being.

The subject-matter of this section is the contributive share of an important element of the productive capital of the State to the support of its government. The duty of all to make such a contribution in the form of an equal and apportioned taxation, is a consequence of the social organization. The right to enforce it is a sovereign right, stronger than any proprietary claim to property. The amount to be taken, the mode of collection, and the duration of any particular assessment or form of collection, are questions of administration submitted to the discretion of the legislative authority; and variations must frequently occur, according to the mutable conditions, circumstances, or policy of the State. These conditions are regulated for the time, in the sixtieth section of this act. That section comes from the law maker, who ordains that the officers of certain banking corporations, at stated periods, shall set apart from their property a designated sum as their share of the public burden, in lieu of other sums or modes of payment to which they would be subject; but there is no promise that the same authority may not, as it clearly had a right to do, apportion a different rate of contribution. I will not say that a contract may not be contained in a law, but the practice is not to be encouraged, and courts discourage the interpretation which discovers them. A common informer sues for a penalty, or a revenue officer makes a seizure under a promise that on conviction the recovery shall be shared, and yet the State discharges the forfeiture, or prevents the recovery by a repeal of the law, violating thereby no vested right nor impairing the obligation of any contract. 5 Cranch, 281; 10 Wheat. 246; 6 Pet. 404.

A captor may be deprived of his share of prize-money, pensioners of their promised bounty, at any time before their payment. 2 Russ. & M. 35.

Salaries may be reduced, offices having a definite tenure, though filled, may be abolished, faculties may be withdrawn, the inducements to vest capital impaired and defeated by the varying legislation of a State, without impairing constitutional obligation. 8 How. 163; 10 Ib. 395; 3 Ib. 534; 8 Pet. 88; 2 Sanf. S.C.. R. 355. The whole society is under the dominion of law, and acts, which seem independent of its authority, rest upon its toleration. The multifarious interests of a civilized State must be continually subject to the legislative control. General regulations, affecting the public order, or extending to the administrative arrangements of the State, must overrule individual hopes and calculations, though they may have originated in its legislation. It is only when rights have vested under laws that the citizen can claim a protection to them as property. Rights do not vest until all the conditions of the law have been fulfilled with exactitude during its continuance, or a direct engagement has been made, limiting legislative power over and producing an obligation. In this case it may be conceded that at the end of every six months the payment then taken is a discharge for all antecedent liabilities for taxes. That there could be no retrospective legislation. But beyond this the concessions of the section do not extend.

A plain distinction exists between the statutes which create hopes, expectations, faculties, conditions, and those which form contracts. These banks might fairly hope that without a charge in the necessities of the State, their quota of taxes would not be increased; and that the while payment was punctually made the form of collection would not be altered. But the general assembly represents a sovereign, and as such designated this rule of taxation upon existing considerations of policy, without annexing restraints on its will, or abdicating its prerogative, and consequently was free to modify, alter, or repeal the entire disposition.

I have thus far considered the sixtieth section of the act as a distinct act, embodying a State regulation with the view of ascertaining its precise limitatations.

I shall, however, examine the general scheme and object of the act, of which it forms a part, to ascertain whether a different signification can be given to it. Before doing so, it is a matter of consequence to ascertain on what principles the inquiry must be conducted.

Three cases occurred in this court, before either of the members who now compose it belonged to it, in which taxation acts of the States or its municipal authorities, involving questions of great feeling and interest, were pronounced invalid. In the last of these the court said, 'that in a society like ours, with one supreme government for national purposes, and numerous State governments for other purposes, in many respects independent and in the uncontrolled exercise of many important powers, occasional interferences ought not to surprise us. The power of taxation is one of the most essential to a State, and one of the most extensive in its operation. The attempt to maintain a rule which shall limit its exercise is undoubtedly among the most delicate and difficult duties which can devolve on those whose province it is to expound the supreme law of the land, in its application to individuals.' The court in each of these cases affirm, 'that the sovereignty of the State extends to every thing which exists by its authority, or is introduced by its permission, and all on subjects of taxation.' 2 Pet. 449; 9 Wheat. 738; 4 Ib. 316.

The limitations imposed by the court in these cases excited a deep and pervading discontent, and must have directed the court to a profound consideration of the question in its various relations. The case of the Providence Bank v. Billings, 4 Pet. 514, enabled the court to give a practical illustration of sincerity with which the principle I have quoted was declared. A bank, existing by the authority of a State legislature, claimed an immunity from taxation against the authority of its creator.

The court then said 'however absolute the right of an individual (to property) may be, it is still in the nature of that right, that it must bear a portion of the public burdens, and that portion is determined by the legislature.' The court declared that the relinquishment of the power of taxation is never to be assumed. 'The community has a right to insist that its abandonment ought not to be presumed in a case in which the deliberate purpose of the State to abandon it does not plainly appear.'

These principles were reaffirmed, their sphere enlarged, and their authority placed upon broad and solid foundations of constitutional law and general policy, in the opinion of this court, in the case of the Charles River Bridge, 11 Pet. 420. No opinion of the court more fully satisfied the legal judgment of the county, and consequently none has exercised more influence upon its legislation. The Supreme Court of Pennsylvania, speaking of these cases, says, 'they are binding on the State courts not merely as precedents, and therefore proving what the law is, but as the deliberate judgment of that tribunal with whom the final decision of all such questions rests. The State courts have almost universally followed them. But no tribunal of the Union has acceded to the rule they lay down with a more earnest appreciation of its justice than did this court.' 7 Har. 144; 10 Barr, 142.

The Supreme Court of Georgia says, 'the decision, based as it is upon a subject particularly within the cognizance and jurisdiction of the Supreme Court of the United States, is entitled to the highest deference.' And the eminent Chief Justice of that court adds, 'that the proposition it establishes commands my entire assent and approbation.' 9 Georgia Rep. 517; 10 N. H. 138; 17 Conn. 454; 21 Verm. 590; 21 Ohio, (McCook's Rep.) 564; 9 Ala. 235; 9 Rob. 324; 4 Coms. 419; 6 Gill, 288.

The chief justice, delivering the opinion of this court in that case, quotes with approbation the principle, that the abandonment of the power of taxation ought not to be presumed in a case in which the deliberate purpose to do so did not appear, and says, 'The continued existence of a government would be of no great value, if, by implications and presumptions, it was disarmed of the powers necessary to accomplish the ends of its creation, and the functions it was designed to perform transferred to the hands of privileged corporations. The rule of construction announced by the court was not confined to the taxing power; nor is it so limited in the opinion delivered. On the contrary it was distinctly placed on the ground that the interests of the community were concerned in preserving, undiminished the power in question; and whenever any power of the State is said to be surrendered or diminished, whether it be the taxing power or any other affecting the public interest, the same principle applies, and the rule of construction must be the same.'

The court only declared those principles for which the commons of England had struggled for centuries, and which were only established by magnanimous and heroic efforts. The rules that public grants convey nothing by implication, are construed strictly in favor of the sovereign, do not pass any thing not described nor referred to, and when the thing granted is described nothing else passes; that general words shall never be so construed as to deprive him of a greater amount of revenue than he intended to grant, were not the inventions of the craft of crown lawyers, but were established in contests with crown favorites and impressed upon the administration, executive and judicial as checks for the people. The invention of crown lawyers was employed about such phrases, as ex speciali gratia, certa scientia mero motu, and non obstante, to undermine the strength of such rules, and to enervate the force of wholesome statutes. A writer of the seventeenth century says, 'from the time of William Rufus, our kings have thought they might alienate and dispose of the crown lands at will and pleasure; and in all ages, not only charters of liberty, but likewise letters-patent for lands and manors, have actually passed in every reign. Nor would it have been convenient that the prince's hands should have been absolutely bound up by any law, or that what had once got into the crown should have been forever separated from private possession. For then by forfeitures and attaintures he must have become lord of the whole soil in a long course of time. The constitution, therefore, seems to have left him free in this matter; but upon this tacit trust, (as he has all his other power,) that he shall do nothing which may tend to the destruction of his subjects. However, though he be thus trusted, it is only as head of the commonwealth; and the people of England have in no age been wanting to put in their claim to that to which they conceived themselves to have a remaining interest; which claims are the acts of resumption that from time to time have been made in parliament, when such gifts and grants were made as become burdensome and hurtful to the people. Nor can any government or State divest itself of the means of its own preservation; and if our kings should have had an unlimited power of giving away their whole revenue, and if no authority could have revoked such gifts, every profuse prince, of which we have had many in this kingdom, would have ruined his successor, and the people must have been destroyed with new and repeated taxes; for by our duty we are likewise to support the next prince. So that if no authority could look into this, a nation must be utterly undone without any way of redressing itself, which is against the nature and essence of any free establishment.

Our constitution, therefore, seems to have been, that the king always might make grants, and that these grants, if passed according to the forms prescribed by the law, were valid and pleadable, against not only him, but his successors. However, it is likewise manifest that the legislative power has had an uncontested right to look into those grants, and to make them void whenever they were thought exorbitant.'

Nor were they careless or indifferent to precautionary measures for the preservation of the revenues of the State from spoliation or waste. Official responsibility was established, and the Lords High Treasurer and Chancellor, through whose offices the grants were to pass, were severally sworn 'that they would neither know nor suffer the king's hurt, nor his disheriting, nor that the rights of his crown be distressed by any means as far forth as ye may let; and if ye may not let it, ye shall make knowledge thereof clearly and explicitly to the king with your true advice and counsel.' The responsibility of these high officers, as the history of England abundantly shows, was something more than nominal; nor did the frequent enforcement of that rule of responsibility, nor the adoption by the judges of the stringent rules I have cited, protect the revenues of the State from spoliation. 'The wickedness of men,' continues this writer, 'was either too cunning or too powerful for the wisdom of laws in being. And from time to time great men, ministers, minions, favorites, have broken down the fences contrived and settled in our constitution. They have made a prey of the commonwealth, plumed the prince, and converted to their own use what was intended for the service and preservation of the State. That to obviate this mischief, the legislative authority has interposed with inquiries, accusations, and impeachments, till at last such dangerous heads were reached.' Davenant's Dis. passim.

Nor let it be said that this history contains no lessons nor instructions suitable to our condition. The discussions before this court in the Indiana Railroad and the Baltimore Railroad cases exposed to us the sly and stealthy arts to which State legislatures are exposed, and the greedy appetites of adventurers, for monopolies and immunities from the State right of government. We cannot close our eyes to their insidious efforts to ignore the fundamental laws and institutions of the States, and to subject the highest popular interests to their central boards of control and directors' management.

This is not the time for the relaxation of those time-honored maxims, under the rule of which free institutions have acquired their reality, and liberty and property their most stable guaranties. The Supreme Court of Pennsylvania says, with great force, 'that if acts of incorporation are to be so construed as to make then imply grants of privileges, immunities, and exemptions which are not expressly given, every company of adventurers may carry what they wish, without letting the legislature know their designs. Charters would be framed in doubtful or ambiguous language, on purpose to deceive those who grant them; and laws, which seem perfectly harmless on their face, and which plain men would suppose to mean no more than what they say, might be converted into engines of infinite mischief. There is no safety to the public interest except in the rule which declares that the privileges not expressly granted are withheld.' 7 Harris, 114.

The principles of interpretation, contained in these cases, control the decision of this, if applied to this act. Indeed, the argument of the plaintiff rests upon rules created for, and adapted to, a class of statutes entirely dissimilar. We were invited to consider the antecedent legislation of Ohio, in reference to its banks, the discouraging effects of that legislation, and then to deal with this act, as a medicinal and curative measure; as an act recognizing past error, and correcting for the future the consequences. It is proper to employ this argument to its just limit. The legislation of Ohio since 1825 certainly manifests a distinct purpose of the State to maintain its powers over these corporations, in the matter of taxation, unimpaired. With a very few exceptions this appears in all the statutes. It is seen in the act of 1825, in the charters granted in 1834, in the acts of 1841-2-3, the two last being acts embracing the whole subject-matter of banking. It is said this austerity was the source of great mischief, depreciated the paper currency of the State, and occasioned distress to the people, and that the change apparent in the act of 1845 was the consequence.

The existence of a consistent and uniform purpose for a long period is admitted. The abandonment of such a purpose, and one so in harinony with sound principles of legislation, cannot be presumed. If the application of these principles in Ohio was productive of mischief, we should have looked for an explicit and unequivocal disclaimer. We have seen that the act contains no renunciation of this important power. And it may be fairly questioned whether the people of Ohio would have sanctioned such a measure. I know of no principle which enables me to treat the sixtieth section of this act as a remedial statute. Even the dissenting opinions in the Charles River and Louisa Railroad cases, which have formed the repertory from which the arguments of the plaintiffs have been derived, do not in terms declare such a rule, and the opinions delivered by the authority of the court repel such a conclusion. Nor can I consider the decision in 7 Ohio R. 125 of consequence in this discussion. That case was decided upon a form of doctrine which after the judgments of this court, before cited, had no title to any place in the legal judgment of the country. The case was decided in advance of the most important and authoritative of those decisions. It is not surprising to hear that the judges who gave the judgment, afterwards renounced its principle, or that another State court has disapproved it, (7 Harris, 144,) or that it has not been followed in kindred cases, 11 Ohio, 12, 393; 19 Ib. 110; 21 Ib. (McCook,) 563, 604 626; and at the first time when it came up for revision it was overruled.

It remains for me to consider the act of 1845, its purpose and details, in connection with the sixtieth section of the act, to ascertain whether it is proper to assume that the State has relinquished its rights of taxation over the banking capital of the State.

The act of 1845 was designed to enable any number, not fewer than five persons, to form associations to carry on the business of banking.

The legislature determined the whole amount of the capital which should be employed under the act-that it should be distributed over the State, according to a specified measure of apportionment; that the bills to circulate as currency should have certain marks of uniformity, and be in a certain proportion to capital and specie on hand, and that a collateral security should be given for their redemption. The act contains measures for organization, relating to subscriptions for stock, the appointment of officers and boards of management; sections, of a general interest, referring to the frauds of officers, the insolvency of the corporations, their misdirection and forfeiture; sections containing explicit and clear statements of corporate right and privilege, the capacities they can exercise, the functions they are to perform, and the term of their existence.

The act initiates a system of banking of which any five of its citizens may avail, and which provides for the confederacy of these associations under the general title of the State Bank of Ohio, and its branches, and their subjection to a board of control, appointed by them.

More than fifty banks have been formed under this act, and thirty-nine belong to the confederacy. Some of the banks over whose charters the State has reserved a plenary control, are by the act permitted to join it. It is said 'that the whole of this act is to be taken; the purpose of the act and the time of the act. It is a unit.' It will not be contended that the fifty-first section of this act, by which this multitude of banking companies are adjudged to be corporations, with succession for twenty years, places every other relation established by the act, beyond the legislative domain for the same period of time. For there are in the act measures designed for organization and arrangement for the convenience and benefit of the corporators only; there are concessions creating hopes and expectations out of which rights may grow by subsequent events; there are sections which convey present rights, or from which rights may possibly arise in the form of a contract; there are others which enter into the general system of administration, affect the public order, and tend to promote and common security. Some of these provisions may be dispensed with by those for whose exclusive benefit they were made. Some may be altered, modified, or repealed, to meet other conditions of the public interest, and some perhaps may not be alterable except with the consent of the corporators themselves. To determine the class to which one enactment or another belongs, we are referred to those general principles I have already considered. In this act, of seventy-five sections, which organizes a vast machinery for private banking, which directs the delicate and complex arrangements for the supply of a paper currency to the State, and determines the investment of millions of capital, we find this sixtieth section. The act is enabling and permissive. It makes it lawful for persons to combine and to conduct business in a particular manner. It forms no partnership for the State, compels no one to embrace or to continue the application of industry and capital according to its scheme. It grants licenses under certain conditions and reservations, but is nowhere coercive. Among the general regulations is the one which directs the banks at the end of every six months to ascertain their net profits for the six months next preceding and to set apart six per cent. for the State in the place of the other taxes or contributions to which they would be liable. But the legislature imposes no limit to its power, nor term to the exercise of its will, nor binds itself to adhere to this or any other rule of taxation.

The subject affects the public order and general administration. It is not properly a matter for bargain or barter; but the enactment is in the exercise of a sovereign power, comprehending within its scope every individual interest in the State. It is a power which every department of government knows that the community is interested in retaining unimpaired, and that every corporator understood its abandonment ought not to be presumed in a case in which the deliberate purpose to abandon it does not appear.'

I have sought in vain in the sixtieth section of the act, in the act itself, and in the legislation and jurisprudence of Ohio, for the expression of such a deliberate purpose.

My opinion is that the Supreme Court of Ohio has faithfully applied the lessons inculcated by this court, and that its judgment should be affirmed.

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Page:Folk-lore - A Quarterly Review. Volume 4, 1893.djvu/387

 Rh student of Celtic belief and custom, I will briefly set forth Mr. O'Grady's view and my grounds for taking exception to it.

A number of stories are extant in which the Irish saints play a part that assorts singularly ill with our idea of the saintly character; they show themselves vehement and unscrupulous partisans, they resort to trick and dodge to achieve their ends. But the interesting point is that whilst they approve themselves to be on the same moral level as the pagan Druid, they likewise approve themselves to be on the same intellectual level. There is the same belief in the irresistible power of the formula, in the irrevocable nature of the oath, in the efficacy of symbol and spell. Mr. O'Grady is much chagrined by these stories, and, says he, "it is idle to suppose that the native Irish writers of remote times, whose general tone indubitably is that of gentlemen writing for gentlemen, knew no better than to seriously credit men like S. Columbkill and Adamnan, for instance, with conduct worthy of Til Eulenspiegel" (p. xviii). So he concludes "these episodes have all the appearance of broad caricatures drawn to raise a laugh." That the mediæval Irishman was quite capable of enjoying a laugh at the expense of an eminent saint I am willing to believe, but is it certain that he would have seen anything laughable in the trick by which Moiling procured the remission of the Boroma owing to the double meaning of the word Luath (Monday and Doomsday), or in how Adamnan outwitted the King of Ireland } The two, namely, were fasting and performing penance against each other, and neither got ahead of the other. So Adamnan dressed up one of his clerics in his semblance, and when the king, who was averse to works of supererogation, sent to ask the saint what he was doing that night, the cleric answered, "I banquet and sleep." The king felt he could do likewise. But meanwhile Adamnan kept fast and vigil, and tarried all night in the river, and so got power over the king. The story is a delightful one—to us—but would it have struck the


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Page:History of West Australia.djvu/568

Rh this sketch came to the colonies when eighteen years of age, and for several years followed the pastoral industry in the back blocks on the Bulloo and Cooper Rivers, eventually forsaking this for opal mining in North Queensland. Whilst engaged in the latter pursuit he heard a good deal about the rich auriferous deposits in Western Australia, and in May, 1893, he voyaged to this colony, and proceeded to Coolgardie, resolved to enlist in the sport of fortune as a prospector. He first went to Kurnalpi with the hundreds of others who suffered terribly from the pangs of thirst. His luck at the initial try was anything but satisfactory, and he followed up succeeding rushes without any sensational finds. While prospecting, with the assistance of camels, he crossed the 125 miles of waterless country between Coolgardie and Norseman, depending for his water supply on rain (caught in two rock holes), arriving at the latter place in time to celebrate the Christmas of 1894. He was much struck with the great possibilities of this district—a field situated only 130 miles from the sea-board, with every prospect of its becoming an important centre between the port of Esperance and the Coolgardie Goldfields. Returning to Coolgardie he determined to go to Albany, and thence to Esperance, with the object of making practical enquiries about that place. This was in the early part of 1894, and at that time there were only two small vessels—the ketch Eva and the topsail schooner Grace Darling—running between Albany and Esperance. Mr. Conolly embarked on the Eva, and very little examination of Esperance convinced him of the possibilities before it as the first place of call for steamers from the Eastern colonies laden with goldfields goods. The port at this time was practically unsettled—thirty residents—for although the town had been surveyed, few people had realised its great advantages in geographical position as a connecting link between the rising goldfields of Western Australia and the Eastern colonies. The oldest established house was the homestead station of Messrs. Dempster Brothers, managed by Mr. Bostock. The town was composed of one hotel, conducted by Mr. J. Purchas, a couple of stores, and a few small houses in different stages of construction. The two gentlemen who shared the honour of being the "oldest inhabitants" were Mr. Sinclair, the postmaster, and Mr. Ben. Hannet, both of whom had resided in Esperance some eighteen years. Mr. Conolly believed that Esperance must soon increase in size and population, and his expectations were soon realised. He thought of starting farming operations, with the idea, ultimately, of supplying produce to the Coolgardie fields. There was no very good agricultural land in the immediate vicinity of the town, but the many islands which assisted to form the harbour of Esperance had the reputation of being rich and fertile. Mr. Conolly at once established farms on these islands, which, after clearing, he planted with general produce, but principally onions and potatoes. Everything went well for a time, he engaged the ketches Swift and Ettie to run the export trade between Albany and the various ports to Eucla. The trade thrived, but in the severe storms of the winter of 1896 Mr. Conolly suffered very severe losses, for whilst the Swift was wrecked on the rocks of Twilight Cove, the Ettie went down in a raging gale. One would have thought this a heavy enough blow at once, but a few days after Mr. Conolly lost his yacht Fleet Wing while she was taking a picnic party out from Esperance. Through some mismanagement she was allowed to jib, and the seas breaking over her she foundered. Again the hand of misfortune was laid heavily on him, and fire completed the work which water had begun. Mr. Conolly sustained a heavy loss in the burning of his house, which contained many valued relics of home. Thus, with his little flotilla gone, and his abode consumed, he was compelled to abandon the work of the island farms until such time as the Government recognises the claims of Esperance as the harbour for the goldfields. While connected with Esperance Mr. Conolly showed a keen interest in the mines of the Dundas district, and made judicious investments, which stood by him in the hour of misfortune. His interests were large, not only in mining, but in real estate as well.

From the time of first seeing the Norseman district Mr. Conolly had remained very favourably impressed with it. Unlike Coolgardie and Kalgoorlie, the Norseman has suffered considerably from lack of capital and difficulties of transit, but, considering this great disadvantage, the field has made wonderful progress. Mr. Conolly's views of the Norseman are backed up by a practical knowledge of the field throughout its length and breadth. He says that though the returns of the field have not been as large as many other districts, yet there has been a steady improvement, resulting from the few small batteries which have been lately erected. He has no doubt as to the permanency of the place, and compares it to the Charters Towers field, with this important addition, that owing to the great area of the Dundas-Norseman field it is capable of far greater development than the Queensland mining centre. He asserts that the Norseman has remained to a certain extent in the background as a gold-producer because of the lack of machinery and proper crushing plants. The reefs, well-defined at all times, have been traced over a considerable area of country. Mr. Conolly augurs a bright future for the district, and bases his arguments on hard facts, and is able to conclusively show that the yields have been distinctly progressive. With the comparatively small combined plant of sixty-six head of stumpers, the output for the first five months of 1897 was 50 per cent. above that of the preceding year. The mines which he sets down as the best are the Desirable, the Three Colonies, Extended Princess Royal, and the Norseman Main Line, with the No. 1 North Norseman, the Norseman Gold Mines, United Scotchman, and the St. Agnes. Going south, the Mount Benson, the Break of Day, the Albemarle, and the Hill View are leading features of a great and promising auriferous belt at present in course of development. Mr. Conolly's opinions about the future of Esperance may be summed up in these words:—"The port of Esperance at the present moment is not in high favour with the Government, but I think it will yet be found, by careful and politic management, that Esperance will not in any way menace Fremantle, but on the contrary will open up the valuable resources of a country beyond the scope of the chief port. Esperance must be the goldfields port for the Eastern colonies, and to endeavour to carry the Norseman trade 1000 miles round by Fremantle, while it can be delivered in 130 miles through Esperance, would be a direct injury to the fields, and a most impolitic action for any Government to attempt." He affirms this with that earnestness which means conviction.

In returning Mr. Conolly as the first member of the House of Assembly for the Dundas constituency in May, 1897, the electors put the seal of approval on a man who wishes to work might and main for their interests. Be has been prominent in all public matters in Esperance and Norseman, working quietly, but with untiring perseverance for the best interests of both goldfield and port. No movement of any note has taken place there without his being a leading figure in it. Mr. Conolly has bright conversational powers, and is a convincing speaker. As a prominent member of the goldfields party he will be watched with interest in the Legislature. It were well if the Houses of Legislation contained more men of Mr. Conolly's earnest type.

title: Page:History of West Australia.djvu/568


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Page:Folk-lore - A Quarterly Review. Volume 4, 1893.djvu/390

 382 intense and vigorous culture of the sixth-eighth centuries was wrecked and shattered, and the renaissance of the late tenth and eleventh centuries is a building anew the ancient fabric with the scattered fragments remaining, and also with much that had worked itself into the national consciousness during the years of storm and stress. It is, as a rule, the renaissance post-Viking recension of the monuments of early Irish culture that has been preserved to us, amongst others of the Lebor Gabala, the legendary pre-history of Ireland. But with the aid of Nennius, who at the end of the eighth century had access to an older form of the L. G. than any which has comedown to us, we can form an idea of the pre-Viking recension of this text. The section concerning the Tuatha de Danann was, so Prof. Zimmer asserts, much less detailed. The ordinary, postViking, recension describes them as addicted to "druidism, heathendom, and devil's lore, skilled in every art, wrapped in cloud caps and dark mists." Here we have the trace of stories concerning the spell-crafty Norsemen and the invisible-capped Siegfried. So at least it seems to Prof Zimmer.

The suggestion is thrown out casually, and is not followed up. But it is easy to see to what far-reaching consequences it might lead. The Tuatha de Danann represent what at first sight seems to be the only genuine mythological portion of Irish romance; the beliefs concerning them have practically survived to the present day as the fairy mythology of the Gaelic-speaking peasant. It would indeed be a triumph for the "revelationist" could it be proved that the vast structure of romance connected with the Tuath Dea had its basis in tenth-eleventh century amplifications of monkish imaginings drawn from biblical and classic fable with matter derived from the heathen Norsemen invaders. There would not be wanting peculiarities in the tradition of these stories to lend countenance to such a view. The fact which I instanced in discussing Mr. Coffey's monograph on the New Grange


text:
User talk:Jabez~enwikisource

Re: HUD
Jabez,

This document has a comprehensive list of various types of compensation that are included or excluded form HUD's calculation of income (see Appendix IV):

http://www.gpo.gov/fdsys/pkg/GAOREPORTS-GAO-07-1012/pdf/GAOREPORTS-GAO-07-1012.pdf

As you can see, there seems to be no rhyme or reason to why specific types of compensation are included or excluded. Isn't government grand?

Best, Eliyak T · C 07:30, 23 January 2011 (UTC)

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title: User talk:Jabez~enwikisource


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 384 of compilers have combined to invent a British worthy who might, had the literary conditions been favourable, have become the centre of a great romantic cycle.

Beli the Great takes us from Ireland to Britain. Prof. Zimmer's work is chiefly valuable to the student of Welsh history and literary history; its importance for the student of romance lies in the insistence on the early and longcontinued relations between Gael and Cymry, relations which have suddenly been carried backwards in point of time and eastwards in point of territory by the unexpected discovery of an Ogham inscription at Silchester. What Prof Zimmer says about the historic Arthur is sound, but neither novel nor concerned with the serious difficulties of the orthodox view.

In the preceding Reports I sketched Prof. Zimmer's theory of the specific Breton origin of the Arthurian romance as we find it in the French romances of the twelfth and thirteenth centuries. That theory was complicated—and compromised—by connection with Prof Förster's attack upon M. Gaston Paris for arguing that the North-French romance writers received their material from Anglo-Norman intermediaries. Not a trace of these hypothetical intermediaries survives, urged Prof Forster; the French poets got their material from Brittany, urged Prof Zimmer. M. Loth, in the Revue Celtique for October 1892, has to my mind conclusively disproved the Forsterian side of the argument. His reasons can be appreciated by those who are unfamiliar with the minutiæ of historical phonology. He urges that the name Yvains in the French romances can only go back to a written Welsh Ywein. If the name had come to the French orally they would have attempted to


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 380 mediæval Irishman as a joke, and would he have considered the trick as ungentlemanly? I doubt it exceedingly, but what I chiefly doubt is that an Irish story-teller would have woven these jokes into historic and hagiological tales which were obviously meant to be taken au sérieux, if not to edify. Yet such is the case with nearly all the tales that exercise Mr. O'Grady. I submit that it is far simpler to treat these stories as evidences of the fact, in itself most probable, that the early Irish saints were just tribal medicine-men with a Christian instead of a pagan bag of tricks, and to regard them as surviving by force of tradition, than to imagine that several generations of Irish story-tellers, after centuries of Christianity, went out of their way to vilify their national saints by harking back to archaic and pre-Christian modes of thought and act.

What makes it still more unlikely that these stories, in which no trace of humorous intent is perceptible, were meant by way of caricature, is the existence of a mediaeval Irish tale conceived in the truest and broadest vein of caricature. I allude to the Vision of Mac Conglinne. The parodist spares neither heroic saga, nor saint's legend, nor even the gospel narrative, and his work, precious as testifying to the existence in serious literature of the incidents and modes of expression which he caricatures, is still more precious as affording conclusive proof that the mediæval Irishman's appreciation and expression of grotesque humour were essentially the same as our own.

Hitherto we have been considering collections of new material, and have had little to discuss in way of contributions to a constructive criticism of the mythic literature of the Irish. But Professor Zimmer, in the important work on Nennius which he has just published, amongst many valuable hints towards the proper understanding of the Irish literary records in the pre-mediæval and mediæval periods, makes two suggestions the effect of which upon


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 Rh current views of Irish myth and saga cannot easily be overestimated. There is a well-known legend to the effect that the bards of the early seventh century were unable to recall in its entirety the greatest of Irish epic tales, the Tain bo Cuailgne; so they sent to Brittany "to learn the Tain, which that wise man (insui) had taken to the East in exchange for the Cuilmenn." This story has generally been interpreted in the sense which critics attach to the finding of the Law under Josiah, i.e., as implying that the Tain assumed its definite shape in the early seventh century. But Prof. Zimmer seems inclined to take it au pied de la lettre. For him insui, "that wise man", can only apply to Gildas, with his standing epithet of Sapiens, who did come from Brittany (returning thither to die) to Ireland in the middle of the sixth century, and who, he conjectures, carried off a MS. of the Tain in exchange for the Cuilmenn, an historical work dealing with the early history of mankind in supplement of the biblical account, which was held in high esteem in mediæval Ireland.

If this is really so, our MS. tradition for the Tain, and inferentially for other portions of the Ultonian cycle, is thrown back to the early sixth century, and we have the proof that, probably following the firm establishment of Christianity in Ireland, the old heroic literature suffered an eclipse during the sixth century and experienced a revival in the seventh century, thanks to King Guaire of Connaught and to the chief bard Senchan Torpeist. The prominence of both these personages in the romantic history of the period is clear evidence that they did take part in a bardic movement of some sort, and perhaps the hypothesis that they represented a national and semi-pagan reaction against Christian culture best fits in with all the facts ot the case.

The possibilities of the other suggestion are even more pregnant. Prof. Zimmer has always insisted upon the Viking period (800-950 A.D.) as forming a chasm in the social and intellectual development of Ireland. The


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 Rh monuments, namely, that the historic connection with the kings of the early centuries of our era had faded from the popular memory, whilst the, according to the usual view, far older connection with the Tuatha De retained its full vitality, this fact would be explained at once; the alleged earlier set of traditions would be, as a matter of fact, hundreds of years younger than the other. Nor need we be puzzled, as we must be now, by the curious way in which considerable masses of the so-called mythological cycle stand aloof in literary tradition from any sort of connection with the oldest heroic cycle, that of Conchobor and Cuchulainn. Smaller difficulties,such as the curious parallelism between a passage in the Second Battle of Moytura and one in the Voluspa, to which I called attention in these pages (ante, iii, p. 391), would also disappear.

I may say at once that I do not think a theory, such as I have sketched, likely to be true. I believe it will be found that the Irish mythological cycle is made up of old and genuine Gaelic elements. None the less do I think that a searching examination, starting from the hypothesis of a late and largely foreign origin of this most Interesting and problematic portion of Gaelic legend, would throw much light upon it.

A passage in Prof. Zimmer's book is instructive, if the facts and inferences contained in it be admitted, as to the possibility of apparently genuine and archaic tradition being originated by late and erroneous views of history. In the Red Book Triads, in a poem of the Book of Taliessin, and in other mediæval Welsh texts, we find mention of Beli mawr ab Mynogan, obviously the Bellinus filius Minocanni of Nennius. Nennius obtained this personage from Orosius, who mentions a Minocenobellinus, which the Welsh scribe misread as Minocanni bellinus (i.e., Bellinus son of Minocannus). But the mention of Orosius rests upon a mistranscribed and misunderstood passage of Suetonius (Caligula 44) relating to "Adminio Cynobellini filio". Thus the carelessness of copyists and the ignorance


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 Rh render the sound of the Cymric y, which is something between a French e muet and a short o (Ywein = the modern Welsh Owen), and would have written something like Ewen; their retention of the y (which they undoubtedly sounded like a long e) conclusively shows that they only knew the name by sight, and not by ear. Again, the French romance writers, finding a written Caradoc Breich-Bras (i.e., in Welsh, C. of the strong arms), and misled by similarity of look between Welsh Bras = strong, and French Bras = arm, transcribed it as C. Brie-Bras (or, in French, C. short arms), which they never could have done had they heard the word pronouneed, for in accordance with the rules of Cymric phonology the initial consonants suffered change, so that the epithet was sounded Vreichvras. The demonstration seems conclusive as against Professor Forster, for it is obvious that the French romance writers had no access to Welsh MSS., and could only have derived the Welsh forms from Anglo-Norman sources; but Prof. Zimmer might retort that these Welsh written versions came into existence after the Norman Conquest had brought the Breton romances to the knowledge of the Welsh, but before the French romance writers knew of them. M. Loth, however, whilst cordially recognising, as every true student must do, that Prof Zimmer has successfully vindicated for Brittany many features of the Arthurian romance as we possess it, has little difficulty in showing that he has, more suo, driven his theory too hard, and altogether underrated the Welsh element in the romance. For the moment at least the centre of gravity of Arthurian study has been shifted back from Brittany to Britain. But little has been done towards that adequate solution of the Arthurian problem which must, I think, take into account the following factors: (a) the relation of the legendary account, preserved by the Welsh sources alone, to that found in the French romances; (b) the relation of both accounts to the substratum of fact connected with the historical Arthur; (c) the nature, whether in its origin racial and


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HEN the colonies sprang up into commercial fame through the indefinite richness of their acres, railway extension could scarcely proceed pari passu with the sudden and enormous development of the country. The leaven of England was imported to control and administer the railways, and it is a noteworthy fact that in this department England has excelled herself, judging from the success and high-level efficiency of her official sons. However arduous and distracting may have been the lot of these organisers and curators of the security of the travelling public to reply satisfactorily to public demands—as immoderate sometimes as inconsiderate—they have by means of untiring energy succeeded in extorting from an implacable public the negative assent of approbation.

The observation that railway managers receive small thanks, proportionately, for their work has passed into a crystallised proverb. Still their cause must be championed by any one who considers and reflects. Then even though he does counterbalance against the answerable argument of meritorious managerial superiority the puny complaint of extortionate fares, he must yet see that his counterpoise is the firm law of legislation, while the former administrative capacity proceeds from the individual.

In Western Australia the country is exceedingly fortunate in the possession of an official of the status Mr. J. T. Short, who holds the responsible position of Chief Traffic Manager. Short was born in England, and came at an early age to Australia to find a ready field for his empirical attainments. His energies were directed to railways, and in 1877 he entered the services of the South Australian Government. Patience and perseverance added to his former virtues were all that were necessary to ensure success. From the Semaphore, where he had been stationed as a clerk, he was removed to Petersburg, and duly installed as its stationmaster. Soon this junction became a place of importance, and gold at Teetulpa, and silver on the New South Wales border, called for the connection of Adelaide with Broken Hill. As each part of this railway extension was completed he became its superintendent, and was responsible for the safe working of the traffic. He had gradually thrown under his supervision mile after mile of railway, and when the contractors finished their work Mr. Short was appointed the superintendent of the line. His energies were elastic, and he left behind him an organised and thoroughly equipped system. His love for efficiency in results was often a potent stimulus in moments of weariness. When he left, at the invitation of the Great Southern Railway in Western Australia to assume the management of their line, his successor had every reason to congratulate his predecessor's efforts and industrious ability. The Broken Hill line is recognised as one of the best conducted and most lucrative in Australia.

When Mr. Short arrived in Albany in February, 1889, he beheld a quaint though picturesque little town looking down on the sunny bay. Here was his destined home for a few years, and he was privileged to witness a grand transformation.

When Mr. Short became the supervisor of the company's railways the revenue was slightly over £20,000, and the length of the railway 242 miles. It was unfairly handicapped in the race with the Government for the goldfields' traffic, owing to the peculiar remoteness of Albany from the fields and the enormous additional expense that would be incurred to the consignee. Yet, through the never-failing instrumentality of special concessions, the Great Southern managed to get a goodly share of the traffic, and tripled its revenue thereby. Mr. Short's former experience proved almost invaluable in the organisation and maintenance of a proper system in the line. His constructive ability needs no panegyric, for the outstanding evidences of a cool and collected judgment were sharp, systematic, and accurate, and actions after all are stronger than words. His administrative capacity found ample scope for its exercise on this virgin soil. When Mr. Short entered this service the revenue was, as stated, £20,000, and when he left it was, approximately, £75,000. Though this appreciable multiplication was due to several causes, the efficient capability of Mr. Short played no little part in it.

When the Great Southern Railway was purchased by the Government in December, 1896, Mr. Short was appointed Chief Traffic Manager of the Government Railways. This honourable position he holds at the present time with marked ability and success. Certain progressive innovations have been introduced in the period that he has been connected with the Government Railways—innovations which have considerably eased the tightened strain of managerial labour. At intervals district superintendents have been appointed, who consider complaints and supervise their sections. This is a great convenience to both the public and to the managing officials.

Praiseworthy progression has been effected in the last five years in Westralian railways. Organisation has been gradually

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 386 mythological, or borrowed and literary, of this legendary portion; {d) the relation of Cymric and Gaelic legend generally. Professor Rhys has made many acute suggestions under head {a) M. Gaston Paris, under head (c), has, in his study of the Lancelot story, made the most valuable existing contribution towards the explanation of the Arthurian romance; under head (d) there are scattered suggestions due to Prof. Zimmer, M. Loth, and myself, and I may claim to have clearly seen from the outset the importance of the factor. But much remains to be done, and no more fascinating field of study could be chosen.

I may here note a pamphlet on the Grail story, which I have unfortunately mislaid, sent to me from America by, I think, a Mr. Maclean. In addition to some spirited renderings from Wolfram von Eschenbach's Parzival it contained one ingenious suggestion—a comparison of Peredur's adventure with the Addanc of the lake, as told in the Welsh story of Peredur, son of Evrawc, and Sigurd's adventures with Fafnir and Sigrdrifa, as told in the Volsunga saga.

The foregoing Report has been largely concerned with critical questions, but I have, I trust, succeeded in bringing out the importance of what may appear at first blush to be mere dry-as-dust exhibitions of pedantry. It is only by the most exact and searching examination, conducted with all the appliances of the philologist, the palæographer, the historian, and the archaeologist, of all the remains written, figured, and oral of Celtic romance, that we can hope to trace its development and to set forth its true nature. The truth at which we thus arrive, by means which maybe deemed pedantic and wearisome, is far more beautiful than those lazy imaginings we spin out of our own consciousness. And meanwhile we have the spring of as fair and clear a stream of romance as ever welled forth from the imagination of man to cheer and refresh us in our march through the Sahara of criticism. Merely as a story-book Mr. O'Grady's Silva Gadelica is excellent reading, and if one takes it up side by side with the


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 Rh exquisite little volume devoted to the love-songs of Connaught which Dr. Hyde has just brought out, the oneness of the Celtic genius throughout the reach of centuries, as well as its unique and penetrating charm, are borne in upon the mind with irresistible force. The Celtic folk-muse greets us from Dr. Hyde's pages like one of her own heroines:

Whoso has tasted those kisses, whoso has heard her fairy-song, like Connla Ruad, will not stay afar from her, but if he may, will follow and dwell with her in the land where she is queen.

.


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Baked Rh

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in a Pie. Rh

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 reaching the inner ring of perfection, while appliances and locomotor material has been improved a hundredfold. Within the next twelve months, Mr. Short informs us, Western Australia will be possessed of mechanical apparatus and appliances for the safe conduct of traffic second to none in Australasia. Great difficulty has been experienced in obtaining competent men to fill the many vacant posts which the sudden expansion of traffic has thrown open. To overcome this a number of officers were imported to occupy the more onerous and responsible positions. Mr. Short confidently looks forward to the time when such importations shall be discontinued, and facilities shall be in existence for training a local staff. This he considers as advisable as it is just for the proper encouragement of the staff generally. As long as promotion acts as an impetus to work and an ideal to attain to, so long will there be a jealous striving after efficiency.

Mr. Short is now merged in the stream of energetic and industrious toil. One day devising, the next revising, improving, substituting, and ameliorating—these are some of the matters which engage his attention. Deputations must be received, listened to, and diplomatically replied to. Suggestions and cries for reform reach, from many channels, his offices, and what with multitudinous demands on his presence, his hours witness no masterly inactivity. Ever peering into the future to divine its weal or woe, a railway manager must be a thorough student in the art of prophecy. If the country is still on the increase, regard must be had to traffic facilities and requirements; if on a steady decline, expenditure must be curtailed. Happily, in Western Australia, all are prophets on the cheerful side, and here another quinquennial term has passed Mr. Short's area of supervision and responsibility will probably have been extensively widened. His experience of railway affairs is coeval with the working period of life, for it has been his one pursuit for the past twenty years.

Mr. Short is imbued with all the instincts and attributes characteristic of a gentleman. Courteous and kind and modest, he is deeply esteemed. He is still young, and as full of energy as when in the bright teens of youth. His mind and body are wrapt up in devotional attention to the duties of his office, and where the inclination and predilection are so strong we cannot stumble when we predict for him a bright future.

EDWARD McLARTY, J.P., M.L.C.

HILE Australia professes to be too democratic to reproduce all the ranks and distinctions which have been preserved from time immemorial between the different classes of society in the mother country, yet even a superficial observer becomes conscious that the law of native superiority asserts itself as strongly in the new Southern World as it does in England. To find a squire in name, for example, we should have to go to an English county, but to find that territorial magnate and magistrate in person it would not be necessary to travel far from Perth along the South-Western line. The only difference is that "at home" the squire has inherited his estates, his manor, and his governing office, whereas in Western Australia he has acquired them by his own indomitable application and the quality of his mental parts; like the champion of the tourney he has had to win his spurs before he could wear them, so that no one can regard him enviously as having been fortune's favourite. The same prizes were within the reach of other men, but they lacked the ability to pluck them, and the victor is therefore entitled to peculiar public regard, especially if, as in the case of Mr. Edward McLarty, J.P., M.L.C., he is willing to lend a cordial helping hand to those whom he has left behind in the race.

Edward McLarty is scion of an old Pinjarra family, his father having been one of the earliest settlers in that fertile and picturesque district on the banks of the Murray River. In 1848 Edward, the son of John McLarty, was born in what has since become one of the prettiest townships in the colony, and which possessed (even in those days) for so nascent a settlement, an excellent schoolmaster, under whose care the future squire of the district was enabled to store his mind with the learning which, if it is not, as the familiar counsel affirms, better than riches, is at least the advantageous accompaniment of wealth that, as in the case of Mr. McLarty, the student may afterwards achieve. After getting through his school-days, the heir of John McLarty, consulting his tastes, and true to hereditary aptitudes, for his father was the manager of the splendid agricultural estate of Mr. Singleton, resolved to turn his attention to the cultivation of the land and the raising of stock. Mr. John McLarty a little later purchased the valuable property known as "Blythewood," situated on the Murray, to which the rich cultivation paddocks have an extensive frontage, and which is

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