The Columbian. [volume] (Bloomsburg, Pa.) 1866-1910, 1871-05-05
COL. DEM. -. VOL XIV. NO. II.

OF the corporation. Let US analyze this
definition.
1. The Illegal act must be positive. A
mere omission, like the failure of a
bank to make its annual returns, Is not
enough. Nonuse Is q different thing
from abuse or misuse.
9. A disregard of the charter which
is injurious only to private interest, and
which therefore admits of private COM
pensation, is not, l think, within the
fair meaning of the words. 1t must be
some misconduct which infringes upon
a right reserved by the State for the
benefit of the public.
3. 1t must be wilfull, that Is, invol-
untary, accidental, or the consequ ence
| of mere mistake. But mean mis- take
of fact Every man Is bound to know
the law. Especially are the grantees
of privilege like this, bound to know
the law which limits and defines its ex-
tent. They bargained TO obey the char
ter, not as they and their succ essors
might happen to understand it, but ac.
cording to its true intent and mea ming.
| If we could allow them to have an adj
vantage from their own errors of inter-
probation, then every grant of corpor-
ate privileges must be measured not by
the terms of the grant itself, but by the
| ignorance of the grantees. a power
not large when understandingly ad-
ministered, might become enormous in
the hands of ounces; and the dimen.
sions of the same charter would dilate
and contract in proportion to the degree
of intelligence that each new set of di-
rector5 would bring to the business. SO
high premium for ignorance would
cause it to be fuigned sometimes, when
it does not exist. The rule is a wise one
which conclusively presumes that the
managers of railroad companies, like
everybody else, understand the law
which prescribes their duties.
4. 1t cannot be said that the company
has been guilty of abuse and misuse
every time a subordinate officer or agent
transgre5se5 the act of Incorporation,
without authority, express or implied,
from the board of directors. 1t is not
sufficient, for instance, that a conductor
of his own head should charge an exor-
bitant fare. But UMe directors should es.
tuJlish tariff Of tolls greater than the tt,o
aNocs, and compel The public to pay them,
this UouLi be Il manifest abuse.
I have quoted at some length, Gentle
men of the Committee, from this men,
orab.e case, not only because it is
from the pen of one of our ablest living
jurists, but because it covers all the
points in this case like blanket, show
ing alike the duty and powers of the
legislature, as well as that Of corpora.
tions created by its authority. No lam
guage of mine can add force TO what
has been so ably said by Judge Black,
and it would be pedantry to refer to the
numerous authorities which sustain
him.
1t will be contended here, | have no
| lo. h. "; al ,,ln, nf this 1anis
ion are overruled in the case of the
Commonwealth o. The Pittsburg &
Connellsville Railroad Company, 8 z.
+. Smith, page 26. Without going into
detail as to the merits of that case, be.
cause undoubtedly the Committee Will
fully examine it, 1 may state that in it
a general demurrer was filed by the
Commonwealth to the rejoinder of the
defendants, which, as stated by the
Court, ,"unquestionably admits the truth
of all the facts averred in the rejoinder. "
AS stated by Judge Sharswood, who de-
livered the opinion of the Court, "We
have no difficulty in saying that upon
these pleadings it is admitted that no
misuse or abuse had taken place, which
would give any constitutional right to
the legislature under the Goth section of
, the original act of incorporation, to re-
, sumo the rights and privileges granted
to the defendants"
The case, then, was decided on tech
nical grounds, the Commonwealth hav-
ing admitted that "no abuse or misuse
had taken place. Judge Sharswood, in
commenting upon Erie & North East
Railroad Co., q. Casey, expressly says,
in speaking of the conclusions arrived
at by Judge Black &c fter so clear an
: euunciation by the court itself of the
conclusions at which they had arrived
it would be altogether work of super.
ogatiOn to examine and analyze the
reasons upon which they are based.
, That case must be considered an authori-
ty in this state for the position that the
legislature is not the .fnM judge of
whether the caSuS JOederiS, upon which
, the authority to repeal is based, has oc-
: cured" 1t will be observed here,
Gentlemen, that the case of Erie &
North East Railroad Co., q. Casey is not
overrulcd, bm endorsed, and contains no
lcaial of authority IN the Legislature to act;
and from the instances cited by the
learned judge he only concludes that
the legislature "has not claimed an
absolute right to decide conclusively
upon the facts of insurer and abuse. "
| may add that because she has not
claimed the "absolute sht," does not
|
!, several instances she has claimed and
exercised it. Beside, it is not the abso-
lutte forfeiture of these charters that we
now demand, but the carbing of these
corporations which ar, doing enormous
, damage to the people ~ large by charg-
ing their present rates of toll.
AS the case of the Cumberland Valley
Railroad Company's Appeal, II p. F.
Smith page 2lS, may be alluded to, l
, desire simply to state that it bears no
analogy to the present case. That Com
, pany by their charter were permitted
to charge -four cents per ton per mile
for toll, and three cents per +on per
/, mile for transportation" As they had
not exceeded their charter limits the
Supreme Court sustained them. Ihey
kept cithm their contruct;. they had moi
misused or abused their privileges.
l could multiply authorities bearing
on the points | have advanced, but NOT
wishing 10 tax the patience of the com.
mittee further on this branch of the
, question, | desire to call their attention
to a recent decision by the Supreme
t Court of Illinois, reported in the Public
Record of March 18th 1871. The court
says: "A railway company becomes &
common carrier by the acceptance of il
charter, which constitutes its contract
with the pubic, and Its duties are fixed
by such contract and the law applicable
|, to common carriers. These require it tC
: receive and transport all freight, with
! out discrimination, and for reasonable
I prices.
l To conclude on this point, Gentlemen
Q above and beyond all this there resides
+ in the State that attribute of sovereign
e ty, the power of eminent domain. Oh
Y this point the authorities are 50 multi
| ttdinous that | can refer only to only
G few. Says Cooley, in his admirable worl
/, ON Constitutional Limitations, page PSI
a "rhe grant Of an exclusive prlvileg
|, will not prevent the legislature from
a exercising the power of eminent do
}. main in respect thereto. Franchises
= like every other thing of value, and il
the nature OF property, within the State
: are subject to this power, and any {
0 their incidents may be taken away, o
t themselves altogether annihilated b,
5 its exercise. And it is believed that a
It express agreement in the charter, tina