The Cairo bulletin. [volume] (Cairo, Ill.) 1872-1878, 1873-07-10
LEGISLATIVE pow Err OVER
RAILWAY CIARG rs.
EXTRACT FROM AN ADDRESS BY
Il. VI. BENJAMIN, ESQ, AT
FTNk'S GROW +, NC
LEAN COUNTY.

EXTRACT FROM AN ADDRESS By
Il. VI. BENJAMIN, ESQ, AT
FTNkS GROVE. NC
LEAN COUNTY.
We now come to the third prominent
idea of the stion-the sovereignty
| of the people. IL is important here TO dis
tngulsh between sovereignty and tue eN-
ercise of sovereign powers. While the
people of the | nited States, acting in con-
iormity with the Federal constitution, are
sovereign, they have delegated the eXer-
else of only certain sovereign powers of
| the Federal government, have denied to
both the Federal and state government
The exercise Of certain other sovereign
! powers, and have left the exercise Of the
balance OF sovereign powers to the state
| governments respectively.
The practical question now before the
people, and which deserves their mos. &c.
rious consideration. is whether any of the
reserved governmental powers of r state
can, by contract, be parted with, for all
time to come, 10 the corporate creatures of
| the state. The power TO limit and regu-
late the charges of common carriers is one
OF the reserved governmental powers OF
the state. The power TO create corpora.
lions, and endow them with the capacity
OF becoming common carriers is also one
of the reserved governmental powers Of
the s ate. Is the governmental power of
the state over common carriers. whether
individuals or corporations, the subject
matter of bargain and sale2
In this connection propose briefly to
| direct your attention TO some Of the legal
principles upon which ! base my belief
that the government has and must retain
the power to limit and regulate the rates
of railway charges.
Railroad corporations are common car
| riers. This has been repeatedly decided
| by the courts The common carrier "eI-
| erciscs public employment So said
Lord Holt, Chief Justice Of the Kings
Bench, IN the leading case of Cogg. vs..
Bernard, decided in 1903. q Id. Ray
mond, 9l1) In another case, decided in
1917, Judge Holroyd, Of the King's Bench,
said that the common carrier, "by ancient
Jaw, held as it were Il public office y
Gritty, r And in another case Lord
Kenyon said "There are acts of Psrlia-
nent which authorize justices Of the peace
20 fix the rates TO be taken by carriers, and
have known instances of applications to
the Sessions for that purpose" q Peakes
y. p c 1859 The act referred to by
Lord Kenyon 70 William and Mary Oh.
~ recites that divers waSgoners and
other carriers, by com binAtion amongst
themselves, have raised the prices of the
carriage of goods, ETC. See Term X.
is, note a
These are all old English cases, and they
clearly establish that at the common law,
the common carrier exercises public en-
ployment, holds q, II were public Office,
and rs to rates Of charges is subject to leg
islstive control. We see that as far back
as the reign of William and Mary, divers
wsgoners and carriers, by combinations
among themselves, raised the prices OF car
rage Of goods, and thereupon parliament
passed an act giving power 10 the justices
NJ the quarter sessions 10 fix their rates Of
charges. And the same principles have
been recognized and acted upon in this
country. The supreme court OF New
York says
"A common carrier exercises public
! employment, and, consequently, has pub
! lie duties to perform. He cannot, like the
tradesmsn or mechanic, receive or reject a
! customer NJ pleasure, or charge any price
that he chooses TO demand" 90 Wendell
25"l The supreme court say that "tho
, lrailaosd) company becomes common
, | carrier, and thus exercises n sort of public
Office t2i Pa. st. $50 And the SUI
t preme court OF the United States also say
e that the common carrier sis in the c,or
else Of II sort Of public office ~ Howard
> 3s2.l
Now the power Of legislative bodies 70
control the rates Of changes of common
70 carriers, when individuals, has never beet
= judicially Questioned. We lind this power
as applied TO hsckmen in the city Of Bos,
ton, recognized by the supreme court Of
u MssssChusctt. in case decided as late a
d 1861. ,9s Mass ~
/. We thus soe thu, the courts Of thi,
country, n well ne the courts Of England
declare that the common carrier exercise.
= a public omployment-holds sort ~
j. public office, and rs to rates Of charges /.
l. subject to legislative control. The com.
. mon carrier exercises n public employ,
- ment and therefore cannot like tho trades
9 man or mechanic charge any price tha, b,
e chooses TO demand. Tue common carrier
hold. a It we're public Office and there.
. fire il cOntrolisble by public law. Private
companies as well as private individuals
% wasLsyer they exercise the functions of I
d. Dsgmou carrier on public highways who's,
ne a. sucL has been acquired under and
~ virtue Of the sovereign power Of the
slsls, assume alike public character, and
a. % their rates OF charges are alike amen.
. a. Q % pubic law. Our own supreme
court sy: Corporations are artificial
persons endowed with limited powers and
capacities, aud are subject 10 the general
lsys and legislation of the state, the same
III natural persons. 1t would be
| hbEuri To BunpOsa that the pOWars of goy-
efsment are greater over the rights Of the
being endowed by the creator, than over
the being spoke into existence by human
laws" (2l Ill. b8.)
The supreme court Of the United States,
A. well ~ the supreme court of this stat
hold that railways are public highways,
and upon this ground alone sustain taxa
ton IL aid Of their construction. Ia the