of the Mobile and Great Northern Railroad, under such contract with said Mobile and Great Northern Railroad Company as said city authorities might agree upon, must be construed as conferring the authority to make the contract on whoever may be the Mayor, Aldermen, and Common Council of said city at the time the contract is entered into; and that, in the absence of actual bad faith, the fact that certain members of the Boards of Aldermen and Common Council are also stockholders in the railroad company, does not, per se, invalidate the contract. The decree of the Chancellor dissolving the injunction is affirmed.

CHAPTER V. ·

ARKANSAS.

In the Constitution of the State of Arkansas, as in that of perhaps every other State, are found sections touching the taking of private property for public purposes, precluding the State from lending its credit to any work of internal improvement, and providing for equality of taxation. It was at one time thought that these sections prevented the imposition of such taxes as generally pertain to the issue of municipal obligations in aid of corporations having a public duty to perform. But it is likely that in almost every case where the above provisions have been urged, they have been made use of chiefly as "make-weights," and not from sincere convictions that their effect was that contended for. This appears to have been the impression of the courts; and, as there was never reason or precedent that could be invoked to support the obviously naked sophistries relied upon, the questions drifted, as it were, to a position which is not to be misunderstood. If there ever was serious doubt, it has manifested itself in a very uncertain light, and has so rarely come to the surface, that no weight whatever is to be attached to it. In one or two of the adjudications that have run counter to the current of decision, an unnatural and purely artificial construction has been adopted; but they have not in any degree affected the settled law.

It may be taken to be definitely and permanently fixed, that none of the provisions of the character above

mentioned preclude the exercise of the right of taxation in aid of public improvements by a municipal corporation. The authorities to this effect are numerous and conclusive. Talcott v. Pine Grove, (see Michigan;) Stewart v. Supervisors of Polk Co., 30 Iowa, 15; Aurora v. West, 9 Ind., 74; Cass v. Dillon, 2 Ohio, 607; Clarke v. Janesville, 10 Wisc., 136; Bushnell v. Beloit, Ibid., 195; County Commiss. of Leavenworth Co. v. Miller, (see Kansas.)

Another class of provisions, which may be here disposed of, are those which relate to the obligations of municipal corporations, issued to give aid and comfort to the Rebellion.

SECTION 25, ARTICLE I., of the Constitution of Arkansas, is as follows:-"The action of the Convention of the State of Arkansas, which assembled in the city of Little Rock, on the fourth day of March, 1861, was and is null and void. All the action of the State of Arkansas under the authority of said Convention, of its ordinances or its Constitution, whether legislative, executive, judicial, or military, was and is hereby declared null and void; and no debt or liability of the State of Arkansas incurred by the action of said Convention, or of the General Assembly, or any department of the Government under the authority of either, shall ever be recognized as obligatory; Provided, That this ordinance shall not be so construed as to affect the rights of private individuals arising under contracts between the parties, or to change county boundaries or county seats, or to make invalid the acts of the justices of the peace, or other officers, in their authority to administer oaths or take and certify the acknowledgments of deeds of conveyances, or other instruments of writing, or in the solemnization of marriage."

While sections similar to the foregoing may be expedient as making "assurance doubly sure," it can scarcely be said that they are in any sense necessary to accomplish the purposes for which they have been framed. It requires no argument to show that any obligation issued in aid of an unlawful purpose is totally void. And as the nature of the Rebellion was peculiarly a question within

the perhaps exclusive province of the supreme National tribunal, and as that tribunal has solved the question in such a manner that there is nothing in the premises open to discussion, all action on the part of the States appears to be supererogatory. The taint of rebellion vitiates any and every instrument to which it can be attached as rebellion. The whole scheme, and every incident that was colored by it, was, in the eyes of the law, a public crime. The supposed statutes of the States of the Confederate States were of no validity whatever where they were enacted in furtherance of the means and necessities of the insurrectionary governments; and all proceedings under them were consequently void. And this is particularly true where the statute authorized the issue of bonds by a political division for objects inimical to the success of the National Government, in the prosecution of the war. All bonds of this nature are wholly null ab initio. They were and are of no legal force whatever, whether in the hands of third parties or not. Constitutional provisions similar to the above, do not, therefore, operate to affect them, as they are devoid of all vitality upon their face.

But an important distinction exists in respect to the Acts of the Legislatures of the insurrectionary States which should be carefully borne in mind. While the governments of these States were technically "Rebel governments," they were none the less de facto governments, (Thorington v. Smith, 8 Wall., 11;) and, as a consequence, many of their Acts were of full legal force. Say the Supreme Court of the United States in Texas v. White, 7 Wall., 733: "It is not necessary to attempt any exact definitions within which the Acts of such a State government must be treated as valid or invalid. It may be said, perhaps with sufficient accuracy, that Acts necessary to peace and good order among citizens, such, for example, as Acts sanctioning and protecting

marriage and the domestic relations, governing the course of descents, regulating the conveyance and transfer of property, real and personal, and providing remedies for injuries to person and estate, and other similar Acts,. must be regarded in general as valid when proceeding from an actual though unlawful Government."

This necessary doctrine has been followed by the tribunals of many of the States, as well as by the Federal Circuit and District Courts. The opinions appear to be substantially in accord, and are, perhaps, all to the effect that where the purpose of the Act of the insurrectionary State government had no direct relation to the Rebellion, and was necessary, it must be held to be valid. There are some cases that may seem to contain a different view, but none of them are authoritative as combating the dictum above quoted. The true rule is that the character of the legislation determines whether it is valid or invalid, and that, in the language of Chief-Justice CHASE, "as to everything which belongs to ordinary business, and the common transactions of life," the legislative acts of the insurgent State are to be treated as valid (Evans v. Evans, 2 A. L. T., U. S. C. R., 102).

It is not difficult to draw the line that divides the lawful from the unlawful legislative Act. Instances may arise that would appear, at first blush, to be embarrassing which, upon a closer examination, will be found to be susceptible of an analysis that will fully disclose their true character. It is only necessary where there is doubt to ascertain the true intent of the Act. The mere fact that it had an incidental bearing that remotely enhanced the operation of the insurgent government, will not invalidate it, unless there was a design to accomplish the wrong. Every Act that tended to preserve public order, to ensure the correct administration of justice, to promote education and other like objects, was an Act that re