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

the transportation of their goods from
Winona to Rochester, the sum Of 81
cents
The sum actually claimed by tho de-
PENDANTS, viz: 81, was in accordance
with tho rates Of freight upon proper.
ty Of that kind, established by the reg
ular published tariff bills Of defendant,
aud was the same ratio, and no greater
than that usually charged by defendant
for such service.
1t was stipulated by the parties in
and tor all the purposes of this action,
that, if such act is valid, operative ard
applicable to the defendant in this case
that then and in such case judgment
should be for the plaintiffs-otherwisc
for the defendants
The defendant derives it's existence
and its various rights and franchises, SO
far as is material to- the present
question, under the following acts Of
the Legislature Of the Territory and
State of Minnesota.
Laws 1856, chap. ~, 1867, extra ses-
sion, sub. Oh. 2of Oh. l., and Oh. Is,
special laws 1862, Oh. 10, special laws
1866, CHI. 9.
By none Of them is apy authority to
charge any freight of passengers car
ried over its road expressly granted to
defendant.
But the court below finds as follows:
/. That under and by virtue of the
defendants act Of inoorporation-and
the several other acts pertaining to the
subject matter accepted and acted on by
the defendant prior to the passage of
said acts Of 1871, possessed the implied
right to transport passengers and freight
over its road and make and receive
some changes for such service.
2nd. That this right, though one
arising by necessary Implication only, is
one Of the essential franchises of the
corporation which became vested in the
company Immediately upon its ACCEPT
anoe Of it, charter, and Immediately be-
came as sacred as any other Of its
rights.
Whether the District Court was right
in thus concluding, it is unne cessary to
consider. We assume, for the purposes
Of this case, that it was aud that the
defendant possessed, as ono of its es-
sential franchises, the vested right to
demand and receive some charges for
such transportation, freight and pas
sengers.
We are, nevertheless, of the opinion
that the act in question is valid, opera
tive and applicable to the defendant in
this case.
It is admitted to be so unless it con-
Aicts with those provisions Of the State
and Federal constitutions which prohi5-
it the passage of laws impairiDg the
obligation Of contracts, or unless it is
an usurpation by the legislature Of ju-
dicial authority.
The contract between the State and
the defendant is Gas We assume) that it
may make some changes for such ser
vice as aforesaid.
Its charter may DO amended BY any
subsequent Legislature, in any manner
not destroying or affecting defendants
vested rights. Sec. Is.
The act in question fixes maximum
toll for the transportation Of such goods
as those in question in this case over the
defendants road.
Does it impair the obligation of the
contract above stated, for the State thus
to fix limit to the amount the defend
ants may charge?
The right to demand and receive
some toll is, We assume. one of it's es-
sential franchises franchise, which
in England is branch Of the Royal
prerogative subsistipg in the hands Of
subject, in this country can only be de-
rived from the Legislature. Franchi-
scs are here, as in England, privileges
Of the sovereign in the hands OF the
subject. Whosoevcr claims an exclu-
sive privilege with us must show 6 rant
from the Legislature. A privilege or
immunity Of a public nature, which
cannot be legally exercised without L.
gislative grant, is franchise. 2 III.
CON-, q. 2 Kent, 459. Poo. W. Uti-
ca Ins. 20. Is Johns, 359.
1uasmuch a. it is the duty Of the
government, with respect to the vel
fare Of the public in general and Of
trade particular, to provide safe aud
commodious ways Of Communication
whence flows the right of the
State to oblige those who n,ake use
IF the ways it provides to contribute to |
the expense Of making and maintain
ing them, I. e., to levy tolls; it follows
that the right to make roads and levy
oils is = prerogative Of sovereignty and
IN the hand of subject is franchise, |
! privilege or immunity Of = public ma
;ure which cannot be legally exercised
without legislative authority. (Vattel
book l, chap. 8, sec. 100, 1902; 2 Kent,
pages $3.50. |
Nor is there now any question, at
east, in this court, that the right to
make and maintain railway and take
oils or fares is such privilege OF i'm
nunity, for the same reason that the
light to build an ordinary road,
md levy taxes thereon, is viz: that a |
abroad is but Al improved modern |
highway; one which it is the duty and |
interest Of the government to construct
where the public interest and convent
'nce demand it. Davidson vs.. Ramsey
o., IS Mimi, 10 Wind. page Al. |
'harpley vs.. Mayor, &c.21. Penn. 81,
AZ, Is Vt. 433, page AL. In also
)lcott vs.. Supervisors Fon du Lac Co.,
Wisconsin State Supreme Court, Dec.
Term 1872.
This franchise Of the defendant is a
privilege Of the sovereign in the hands
# the subject. The subject is indeed
n the present case an artificial being.
But the sovereign might have placed
his privilege in the hands Of a natural
person, and it might have been HI. prop
rty, as it is the defendants property.
In the use the defendant shall make
# Its property, this defendant is as en-
irely subject to Legislative control as
UGH supposed natural person would
lave been. II Mimi. SIS.
The franchise in question being
of the sovereign. and which