Mower County transcript. [volume] (Lansing, Minn.) 1868-1915, 1873-06-05

|cg'slottve contract Nth tie ovuers ~
tic road" Per Walworth Oh. in Beck
man vs.. Saratoga T. Schencctada Rail
road, 3, page 45.
The position above quoted was not
necessary to the decision Of tho case
before him, but wo cite it as expressing
our own views as we'll as those of an
eminent jurist, on this point, expressed
when railroads were in their infancy
1t is one Of those plain and simple
propositions, rs it seems TO US, upor
which, because it is SO indisputably true
there can be no accumulation of author
tiles.
But before railroads were known in
this country, u similar position had
been taken with respect to ferry fran
chise.
The legislature" says Chief Jus.
tice Parser, " having originally the on
~ right to grant the exclusive privilege
Ut transportation over public waters,
and to establish tolls, &C., the grant OF
this privilege would always be consid.
cred as subject to the superintendent
OF the Legislature, unless that was cx.
pressly surrendered" Charles River
Br. vs. Warren b., 7 Pick, 51l.
Has the State surrendered it with re.
spect to this highway
Is an argument that the defendant
must take some tolls expressly or by ne
cessary implication an argument that
the State will never assume to regulate
the uEe Of the franchise, aud limit tho
amount Of tolls the defendant may take?
This question must be answered ia the
negative.
The State, We assume, has conferred
upon the defendant the right to make
some charge, i.e., to take some toll.
Not any specified rates Of toll, nor to
take tolls within any specified limits,
nor to take reasonable tolls. The right
it conferred is simply to take tolls.
If this right cannot in the nature OF
things exist along with the right afore-
said in the Legislature to regulate its
use and limit the amount Of tolls the
defendant may take, then of course the
right Of control is gone.
But it is obvious that the two can
co-exist; !. e., . right simply to take
some toll can be exercised to its full
extent undcr law forcing n,azinsun,
rate Of toll, for in taking such meari-
n,nns rate some toll is taken, and the
extent Of right is only to take some
toll. AS therefore the fixing of maxi
mum rates Of toll by the act of 1871,
does not interfere with defendants
right to take some toll, it is not uncon-
stitutional as impairing the obligation
Of any contract between the defendant
and the State, and it was competent for
the Legislature to enact it in the exer-
else Of its unsurrendered authority to
control the defendant in the exercise of
the franchise conferred. Nor is the
act in question an usurpaticn by the
of judicial authority. The
Legislature represents the sovereign in
two capacities. First, it represents the
sovereign as q party contracting with
Second, as the sole law
making power.
In the latter capacity it acts for the
sovereign, in exercising the sovereign
right Of control over franchises in the
hands Of the subject. And as this
right Of control can only be exercised
through the establishment of some rule
of conduct-that is to say by some lao
it is necessarily the function Of the
Legislatures the cole law making pow
or to establish such rule of conduct by
legislation We have said that the
franchise in question is not the right to
take reasonable tolls. AS the respond
ent concludes that i, is, and its argu-
ments to prove this act unconstitutional
is wholly based on that proposition, it
is necessary to state the grounds of our
own opinion.
The right to take some toll under
this charter is, as the court below found,
but an implied right. II arises by tine
cessary implication only, if it arises at
all."
1t cannot be by necessary implication
only, If at all, that it is right to take
toll.
Whatever is essential to the enjoy
ment Of the thing granted will be ne
cessarily implied in the grant. 9. Lit.
Sc, A. Plowd, BIZ Saunders, case s,
60. IL.
Norton j. in Charles River, Br. VS.
Warren Briage 2, Pickering, 345, P.
459.
Without undertaking to pass upon
The correctness of this position applied
Is the learned Judge applied it to the
grants from tho State, the converse of
he proposition will probably be admitted
70 be true, namely, that nothing which
is not essential to the engagement Of
right to take some toll, that the toll to
be taken should be reasonable.
Therefore, q right to take reasonable
;oll is not implied in the cast. before us.
The court below, however, finds as
ollows on this point, viz:
Third-That in the absence of any
in the charter or other acts
accepted by the defendant fixing the
mount of the charges for such service
he law, as in other like cases, fixes
hem at reasonable rates.
Its reasons for the conclusions are |
hus stated:
"On this point it would seem that
here could be no esssntisl difference
between this aud any ordinary con-
:ract similar in character between pri-
rate individuals, the contract on the
me hand calling for the performance
# certain labor or other duties, and on
he other no compensation being speci-
ically fixed, the law in that case as in |
his, would fix the: compensation at a
reasonable one, to be determined in case
# controversy, BY judicial examina-
ion, and determination from all the
acts of the CASE" The district court,
'ere, as it seems to US, confirms two en-
irely different things
The "other like cases" by which
he court was guided in arriving at its
aid conclusion, are the contracts be-
ween private individuals above men,
toned.