The St. Cloud journal. [volume] (St. Cloud, Minn.) 1866-1876, 1873-10-09

'uaI ue seemed 10 nave acquired them by
Inspiration and not by researc Oh. He swept
demonstration that these
abused rights and privileges were in the
strictest sense trust, of which it is the
very essence to be rendered accountable,
and even totally to cease, when it substan-
tally varies from. the purposes for which
alone it can have lawful existence.
These principles are as potential to-day as
is yet almighty in it's resources of redress.
The giant which confronts them is but a
projection; 1t is but the shadow of the peo-
pie. Its Threatening gestures, like those OF
the spectre Of the Broken, are but the ex-
aggerated motions of a phantom, which only
is because the very object which it threatens
has painted it in grotesque vastness of pro-
certainty and confusion.
But this power Of forfeiture does not ex-
haust these resources. There are other reas-
ons why the State has legislative power over
the question Of rates. These companies
were chartered by the Territorial Legisla-
ture. Some of their charters contain pro-
\ isions which attempt to authorize the d.
rectors to Tx tolls and rates in such amounts
as they shall see fit; others of these charters
are silent upon this power. But in both
cases the companies confidently assert, are
asserting it to-day in the courts, that thew
have the unrestricted and inviolable power
to tax the people for carrying their produc-
lions IN such sums as they, the companies,
think fit. One company claims this power
because Its territorial charter gives it In
terms. Another company whose charter
contains no provisions upon the subject,
claims 1t as necessary, uncomfortable incl
dent of its right to construct and operate
road: For the purposes of this branch of
the discussion merely, will concede that
there was time when both of these propo-
sltlons were correct. But I maintain that
that time terminated when the territory was
succeeded by the State. The territorial
charter conferred upon these companies the
right to condemn private property for pub
lie use. In other words, the territory dele
gated to the companies function of its
sovereignty; for the right OF eminent do
main, which IS the legal form OF expression,
for this power of condemnation is sover-
egE right, and is as much function of gov
eminent as is the right to levy taxes or to
make laws. While the territory existed
every proceeding to condemn private prop
erty was In reality an act of the territory
of an existing sovereignty. But when
the territory was utterly extinguished. It
became as defunct as the Southern con-
federacy. There was left no residuum of
sovereign power by which, under the SOW
ereignty ef:the territory, the right 20 con-
demn could be worked oul by delegation of
territorial functions of sovereignty. The
companies must look to the new pol ;tical
power. That which succeeded was the
State. The State can grant or withhold the
ripht to use its sovereign power for pur-
poses of condemnation for right of way.
Ihls absolute power to grant or to deny to-
tally, carries with it the power to grant that
right upon conditions, and if the companies
get their right of way by using the delega-
ted sovereignty Of the State, they take that
right subject to the conditions. Now, the
constitution OF Minnesota provides that lands
may be taken for public way for the purpose
OF granting to any corporation the franchise
OF way for public use, and it provides in
the same sentence, in which this right is
granted, that all corporations being CON-
mon carriers, enjoying the right Of way
in pursuance OF thu provisions of this section,
Shall! be bound to carry the mineral, agricul-
tural and other productions and manufac-
lures upon equal and reasonable terms.
There is not Railway IN this State which
has has not acquired every inch Of the right of
way by condemnation, since the constitu-
ton was framed; and what maintain, that
the companies, having invoked constitu-
tiona! benefit, take it coupled with the con-
stltutl0nal burutn In other words, they
cannot, as they have done, invoke the
sovereignty of the State for this purpose.
and, having obtained its advantages, deny
their obligation to do those acts which the
constitution prescribes that they shall do as
equivalents for their advantages.
| am aware that the constitution also pro-
Vldes that all contracts, both of individuals
and corporations, shall continue on as if no
change of sovereignty had taken place,
But If the provisions of the territorial char
tiers which gave to the companies the right
to use the sovereignty of the territory to
this end were unqualified contracts, they
were contracts with the territory which no
longer exists. The State which succeeded
has not assumed them. On the contrary it,
the new sovereignty, has declared that thai
sovereignty cannot he used for these pur-
poses except upon conditions which did not
exist before. T. o say that this may be true,
out that the companies may condemn the
right OF way under the territorial authority
without reference to the constitution; in
wolves the solecism Of maintaining that
there are still two sovereignties in existence
IN this State, namely, the territory and the
State. 1t also involves the absurd PROPOSE
ton that the legislature of territory can 80
delegate away its sovereign powers as to
not only abdicate them irevocablv, but
also to put barren sceptre into the hands
OF Its successor, the State. 1t has never vet
been held that territorial legislature has
inns power, or has it yet been held that the
legislature of the State itself can, under the
gulse OF grant or contract, barter away the
functions ofsoverefgnty so that succeeding
LEGISLATURES shall have no power of legisla
ton upon the subjects concerned in the
had the right to delegate the right of emil
nent domain, or to refuse to delegate it.
bad 1t refused, there would have been no
right Of condemnation remaining In the