The Rock Island daily Argus. [volume] (Rock Island, Ill.) 1872-1873, 1873-02-12
.na ,hereeore must remain subject TO pub

fbe State, and the supervision and regula-
tion thereof, is a prerogative right vested :,
in the sovereign power, and it can only be =
exercised BY the use of what is called me n
police power of the State; that it IS ollly
because railroads are public insfltutiohs
that the right of eminent domain can DC n
given them, allowing them TO .aAe pllta9e
property for their use since the rlene VI
eminent domain cannot ee aSou 20 P''tu,o V
purposes and therefore u RAILROADS. are only h
private enterprises, ike oiaeSs1ith SHOPS t
eminent domain to them is unconstitution- /
ii md every taking of land or materials /
,,njar their charter il n trespass that !
title free from public use cannot be OBJ !
tanned BY eminent domain; and, therefore, ,
a title free from public regulation cannot +,
be obtained by eminent domain: that so
far as corporations exercise public func-
lions, they are mere agents, or so 10
speak, officers Of the State, and must re-
main subject 10 public control, that tax
for a prirdte purpose is unconstitutional, and
il is only ON the ground that railroads are
public affairs, that any of the county and
township subscriptions 10 them, and the
tax necessary to pay such subscriptions,
can be sustained In further support of
liltiI HubhNNhaA dNttis
al railroads are made post roads by act of
Congress- The argument on these three .
points seems TO be irresistible
80. The provision of the charter under .
which the Chicago 4 Alton Railroad .
Company claims the right that its direct
ors may fix. establish, take and receive
such rates of toll for all passengers and
property transported upon the same, as
| the said directors shall from time to time
| establish, according to its terms Is abso-
! lutely void
The argument here is, that this proyl-
sion of the charter assuming to make an
absolute grant of powers which the legls
lature cannot grant, is simply void, and
the company remains subject to legislative
control like a natural person. the same rs
/ il this clause had not been inserted in the
charter.
CONCLUSION.
/ The Conclusion Of the argument eX-
amines the Dartmouth Colleg9 case, the
great reliance of all corporations since It's .
time. which claim their charters to be
contracts with the State, and therefore IT.
rcvocable The language of that almost
| infalible expounder of constitutional law,
Chief Justice Marshall, in that very case
| itself, Is cited as showing that the prlncl I.
/ ples on which the case was decided are
not applicable TO corporations of the char
acter OF railroads The great Judge says
IF the act of Incorporation be
a grant of political power, II Il
create u cirH institution to be employed IN
tie administration of the government, or II
the funds of the College be public prop
erty, or if the State Of New Hampshire,
as a government, be alone interested in Its
e transactions, the subject is one in which
the Legislature of the State may act ac
cording to its own Judgment, unrestrained
I by any limitation of its power imposed by
the Constitution of the United States.
5 And he further says: The character of
I civil institutions does not grow out of their
p incorporation. but out of the manner in
which they are formed, and the objects for
e which they are created The right to
e change them is not founded on their being
= corporated, but on their being the iHstrV-
: meRts Of ne government, created for ia
b purposes. The same institutions created
o for the same objects, though not incOrpo-
/. rated would be public institutions, and, ~
n course, be comfortable by the Legislature
= The Incorporating act neither gires Hoj
ie precenty this control.
n 4 few following paragraphs of the ar
L gument must here be given in full:
Ie The authorities cited agree unanimous
" that railroads are public institutions
rs They must be such, or the power Of nc
quiring the use Of property by the exer
mt else Of the right Of eminent domain, an
n of levying taxes in aid Of their construc
~ ton, could not be delegated TO them. Pri
ne vate property can only be taken for publ
II use and taxes can only be levied for pub
L., al IL fal- ~,
and using the right of way, whether tn
mt same be obtained by direct grant from tn
a original owner or by the exercise of tn
re delegated right of Eminent Domain, ar
public Institutions. and receive the pror
n erty in either method only for public ust
a The only reason why they have the RICH
s. to acquire property in any way is becaus
ne the legislature has seen fit TO declare tina
Is the use Of property thus acquired is
Ia public use, and for that reason has allow
EN- ed them 10 take by grant or acquire b
condemnation the lands necessary for tn
re purposes of public highways. And pull
as lie highways, though entrusted. as part
nd the public domain, 10 the Administrative
lis of corporations otherwise private, az
ke public Institutions and therefore, in til
es language Of Chief Justice Marshall, ar
n of course, controllable by the legislature
n After an almost unbroken series
- decisions by the courts both State an
by Federal it is too late 10 deny the publ
character of these corporations. Will
a acquiring their right of way, and Obtain
IL ing money TO build and equip their road
ne they have been swift TO invoke the aid {
the courts, and have answered ever
4 objection by asserting their publ
H. character In this they have bee
CT sustained 70 the extreme limit
lle and even where State courts have deniet
H. the right TO aid them by taxation on TN
NJ ground Of their private character, a resoi
IS 20 the Federal Court has always resulte
m in a recognition Of their claims to be COZ
gel sidered public agents and an entorcemeI
70 OF such claims by the highest power of tn
OF Federal Government, even to the extent
.e7 military interference, as was the case
re- Iowa
lr- by the power Of Eminent Domain
their roadways have been acquired; |
ia, public taxation the money to build an
lst equip them has been obtained; priva
III property taken for their use has not
en- many cases been paid for, but the uwne
oct have been supposed to be compensated 4
a the property taken by alleged special be-
we eiits added 10 this the roadway has be-
"a held exempt from sale under execution Il
IS same as other public property owned
Oh the State OF by municipal corporation
OF Public use, not public benefit, authoriz
md the exercise Of the power of Eminent i
pal main; public use alone upheld the lie
me and collection Of taxes public use and L
is convenience justified the exemption
the their property from sale under execution
.tce Hence 1t is too late for these corpOr
iol tons now that they have become strOn
OF and the State begins to exact duties
!eI well as confer rights, to claim u priU,
TED character
With plainly worded intimation tn
eg the Court should not assume law to
TN repugnant to the constitution unless t
en- repugnancy be obvious, and that it
cen almost unheard of that State Coz
., should declare the very Constitution VI
'th' to which the court owes its own existen
IRA the argument closes with final reminC
the that the question at issue is as to the pow
nc Of the Legislature to make an irrevocal
irly contract diyestinR itself of its consti