, 1870-04-11

Argument OF E1-JudEe Cation in the
Case Of MurFy Nelson rs. tho Cht-
cAE0 d. Alton Railroad Conpmuy.
:.

10 dCubt the eAMe 4uANerB viii cccur to yuur |
lonoTs a do to me, especially If these ansve1a
nd the vast Importance Of the cause, prompt
ne TO make reply.
That argument cuns{sta Of more than forty !
raSea Of close teehnicalties and fine special !
Heading. which, IN my Judgment, reflects
nore credit upon the counsel th1n it will do
'ood to the c&use- It drawn the cords 30 close
hat from the very necessity Of the caae they |
nnst break. It winds about Us what may le |
:a1led the cobwebs Of thn Law, which from the /
pressure Of the circumstances must fall asunder. |
In the whole OF this Argument the great /
31.nciple involved is entirely ignored 1t Is |
laH required The common carrier to de1iger the |
sooda 70 the consignee, 1t lis place Of busi- |
aera- When railroads uere bu1t and bocame
carriers, they we're Aaked+ in confor- |
nifty to this principle Of The common Ian, to de-
liver goods TO the conaiEnee, wherever be might
counsel have forgotten, what an aHaE Of au-
thotities was brought IN support Of this oppo-
silion-an a11ay outnumbeEine ten to one those
now cited against ua- Bat the railroads, while
they could not deny this principle, insisted
thu. i vas not Applicable 70 mode Of Trans
means used, rendered it impossible
for the common carrier to comply with it; and
the conrts, with that sense Of iuAtice which
always has, and I trust alvayb will, character-
ize their action toward railroads and all other
improvements in the modes Of doing business,
recognized the force Of this reasoning, md
held that the rule WAS only applicable where.
from the MIXTURE Of the meana used for traus-
pottaton, it could be confotned tos and -
theHe side tracks to private warehouses wera
not then IN uso, or probably thought Of, the
courts said, in general terms, that the conpa-
NJ v.s not bound to deliver bcyond it's track;
and this because it could not run its cars over
the common roads to the place Of bueinese OF
such consignee. Eow this WAS no change Of tho
common law, but it WAS merely holding that it
was iaapplicahls where it Eas .physically I'M
posaib1e 10 conform to It. The 11w ia now the
sarne ~ it always has been, md will be ap-
piled and enforced wherever the condition Of
thingH will render it applicable. / repeat, the
courts did not change the law in favor Of rail-
roada, but only held that 1t did not apply Whese
it could not be applied. And this was in obe-
dience to another principle Of the common lay,
applied where, from the nature Of the cirrum-
stauces and the rcason of the thing, they arc
not applicable. Now In all those cases which
are cited to show that the railroad company
need not deliver goods beyond the line of it's
track, it was impTacticable to do 20, and hence
tho rz,oAus provided, which shows that it is
practicable and convenient for them to deliver
to the consignee, that principle Of tho common
Law which las never been dead, nor even
asleep, is just as applicable to them as it ever
was to any common carrier, SO lar - thls AND
the court to revive even i dormant principle:
but to apply one which has
ever been alive and applicable to al cases
whcra physical circumstances would permit
/ feel satisfacs,.n in the reflection that it
has fallen to the lot Of this court, whose de-
have ever been considered Of go high author
ity, and hare met with such universal arpro.
baton in al Of the States Of this Union, to
lead on in the application Of the still living
principles Of The law Of cauiers to railroads
wherever, from the physical condition oi
things, these principlce may b applied. The,
we're originally founded in wisdom, promptee
| By sense Of Justice, and demanded By ths
convenience and the necessities Of busines.
and commerce, and ut this dAy, and under tht
circumstances as they now exist in connection
with this mode Of transportation, they ar,
more demanded by these considerations nos
than ever before And caps esnse. j. t.. Tbs ,,t 70 !,
and wealth consists Of grain
ported pta in bulk to this % great maf., she necea
eity for the handling OF which has brough
into existence 30 many Of those costly stEuc
tu1es called II elevators" It is for this CouE
be excluded from this immense business, an
The whole ehall be thrown into tho hands o
tho several railroads cente1ing in Chicago, An
healthy competition, 90 necessary for II
good Of the producing classes, entirely de
strored. Il i only in euch cAses al this ths
veal or woe o{ the community depend upo
the Judicial department Of the government.
will SAG here, in this connection, Hord
reference to tho statute. While counsel u
nit that tho statute imposes the duty upo
defendant It to deliver st al out The sEs
HOUSE On tbs side trick, Jet as
| is right GRATED by tho atatuta, and ae Il
| statute rreacziLea ! remedy for the vio1atic
, | Of that right, We ARC confined 70 that remed
The mistake in this argument is that the rg'
does not depend alone upon the statute; b1
exists at the common Law, Independently
the ntatute. The statute ia merely declazato
Of this common Law right, as have endcaro
,, cd to show; right which has ever e1istt
: | when circumstances permitted its applcatio
a It may be that the Legislature, fearing th
The courts might be misled By that sort
| which we see exhibited in this argument
!, the other ride. thought it possible that t
!. cou1ts might forget thtt the old common Il
!, 1ule had only been Lid aside where it cor
: not bc applied from physical Causes -thoue
= it prudent to declare the rule anew, Is tn
i, makes it none the les: ::sho 1ulo OF the comm
=. Law.
= II I am right, then, IL
! this etatnte ia merely decl.;
tori Of what the common Inv is and alwaya
4 been, then the remedy provided in the stat,
- - for The violation Of this right is merely Gun
= = lative, and the aggTieEed party may resort
snv rrmody which he might have sought h
none been prescribed By the statute. n
there may be one right which may be infer.
from it, but not expressly declared by I
b atatnte, which the common law did not p
G. yide, md That is the right Of private perse
r 10 eonnect their private tracks. leading
3, their warehouses; With tho main track Of
1osds over which they wish to do busina
j. While this right ia not expressly declared
n. this statute, it is an inevitable inference II
=, tho rrovssions OF the Law: and this brings,
"a to the consideration OF another question VII
I haa been discussed by the learned counsel, /
4 that is tho right Of tho Legislature to imp
any duties OF burdens upon, OF in any Wy
hc regulate the nlode Of doing business by
w railroad companies.
o Nhilc an not one OF those who think t
IT, tho Legislature has unlimited power over til
n. corporations Of it's own creation, 80. on
nj other hand, do not think they arc eutil
beyond legislative control. have ever
W Of tho opinion that the truo rule on this 6
Ee, iect is that the Legislature can prescribe
.rs rules for the government Of these corp
tons which it can prescribe for the gov,
al neut Of its individual citizens. With this lin
h tiou, however, that when, in its charter t
~ COMPANY, it has granted in express term
=. particular right, privilege, or po"er.'t car
~ Interfere With, or take away: that night, p
n. lego, OF power, although it might inter
i,a with, regulate OF take avxy the same n
privilege, or power from an individual
ii. zen, when that citizen derives that right, I
r. ileee or power from the Law ot nature, OF
~ general Laws of the land With this l1,itat
M the power Of the Legislature is the same
be be artificial ~ over natural persons
~. w.$4 $rrn
he Il ieset staa. to natural % person, slthoush the
SOD might enjoy the ssne rights or pT!vli
:he by tho Law Of nature. still the Leglsla
~ ~ could not take away those rights o. pri.ll
W. W. thus specially confirmed to the inliyid1
1Ns might Interfere with tho right O. priv
H.. Which the individual might lawfully exc
nv without the lcgielstive confirmation. In
a.. one case, the individual would cn{oy tha
~ by contract, rs it is sometimes called, viii
u een Legislature; in the other case be would 9
ien ;en It only b. permission Of the law, and unit
!. - LesislAture Ishoula find it necessary 70
pu6lc good to fnte.fere With it. eu1ay
es'' tY1tc what mean by reference to our let
~, ton in relation to ferries. In the absence
= to to legislation on tho subject, M one has :,
sfhe TO fen! people over = stream and e !
W. for the service. This natural
LILA resulting from that natural Law which Pc
sarl one to serve another in any useful Way To-
~ compensation whish rnsy be agreed upon
AA' rrt it bas never been doubted that the 1e
ture may interfere with this natural nigh
prescribing prudential Iales for its e5e1
to limit the compensation which ahal
charged for its exercise, or to take AVA!
ates right Altogether.
There d pfobsbly not State in this
: .n7 whose statute books arc not full OF Just
s. legislation. and there is not 4 Court il
Is Union that has not upheld it. Nov, 81
%N | m individual or \ compAnT receives Z
5 - ehzste1 authorizing the very act which 7
<, COS 5;r;5r,1 -n.v a n tha ABSENCE OF any Il
i - 49, ~, ~ ErhJacf that IA. to keen fer,