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

Legislative contract pith tie o,oners o
tie road" Per. Walworth Ch. in Beck
man rs. Saratoga T. Schenoctada Rail
road, 3, page 46.
The position shove quoted was no,
necessary to the decision Of tho case
before him, but we cite it as expressing
our own views as we'll as those of al
eminent jurist. on this point, expressed
when railroads were in their infancy
1t is one Of those plain and simple
propositions, as it seems 10 us, upo,
which, because tits so indisputably true
there can be no accumulation Of author
tiles.
But before railroads were known ia
this country, n similar position hat
been taken with respect to a ferry fran.
chise.
The legislature" says Chief Jus
tiee ParEer, having originally the on
ly right to grant the exclusive privilege
Ut transportation over public waters,
aud to establish tolls, TO-, the grant o.
this privilege would always be consid
cred Us subject to the superintendent,
Of the Legislature, unless that Was ex
pressly surrendered" Charles Rive,
Br. vs. Warren B., Z Pick, GIL. + -.
Has the State surrendered it with re-
spect to this highway:
Is On argument that the defendant
must take some tolls expressly or by ne
csssary implication On argument tina,
the State will never assume to regulate
the use> of, thu franchise, aud limit thu
amount Of tolls tho defendant may take'
This question must be answered 10 the
negative. fl. - .-..-- ...
The State, va assume, has conferred
upon the defendant the right to make
some charge, H., to take some toll
Not any specified rates Of toll, nor t
take. tolls within any specified limits
DOR to take reasonable tolls. The right
liz conferred Is simply to take tolls.
If this right cannot in tho nature OF
things exist along With the right afore.
said in the Legislature to regulate its
use and limit tho amount Of tolls the
defendant may take, then Of course the
right Of CONTROL is gone. ..<.s::s !.
But it il obvious that the two. can
o. exist; !. s.,a right simply to take
some toll can be exercised to its full
extent under law forcing nsarinun,
rate Of toll, for In taking such n,azI
nam rate some toll is taken, and thu
extent of right is only; to take some
toll. As therefore the fixing of maxi
mum rates Of tollaby the act Of 1871,
does not interfere with defendants
right to take some toll, il is not uncon.
stitutional as impairibg the obligation
Of any contract between the defendant
aud the State, and it was competent fol-
the Legislature 70 enact it in the exer.
else of ito unsurrendered authority to
the defendant in the exercise Of
the franchise conferred. Nor is the
act in question an usurpation BY: the
Legislature, Of judicial authority. The
Legislature represents the sovereign in
two capacities. First, it represents the
sovereign as . party contracting with
defendant. Second, Is the sole law
making power. = - Ut. A. !;
In the latter capacity it acts for the
sovereign, 10 exercising the sovereign
right Of control over franchises in the
hands Of tho subject. And a. thi.
right Of control can only be exercised
through the establishment of some rule
of conduct that il to say by some Ian
1t is necessarily the function of the
Legislatures the sole law making pow
or to establish such rule Of conduct BY
Legislation /. We have said that the
franchise 10 question is not the right t
take reasonable tolls. As the respond
ent concludes that il is, and its argu.
meuts to prove this act demonstrations
is wholly based on that proposition, il
is necessary to state the grounds of ou'
own opinion. = r..>
The right to take some toll under
this charter is, sthe court below found
but an implied right. Il arises BY ''ne
cessary implication only, if itarises al
all" J. |.zssst5: ! 1: a*~.::>-. TN 1!!3
+ It cannot be BY necessary implication
only, if At oil, that it 10 right to take
reasonable toll. $780, ,''.sE."t . ..: 4
Whatever is essential 70 the enjoy
ment Of the thing granted viii be no
cessarily implied in the grant. G. Lit
IS, A. Plowd, 3l7 Saunders, case s
Co. H. s.i=.t, -. a. <. q ~ :.
Morton j :, in Charles River, Br. "
Warren Briage &, Pickering, 345, 2
459. ' -. -.- -. < :,:,.<,. :;
Without undertaking to pass upon
the correctness Of this position applied
% the learned Judge applied tito The
grants from the State, the converse o.
the proposition will probably b admitted
to be true, namely, that nothing which
is not essential to the engagement Of 4
right TO take some toll, that the toll t
be taken should be reasonable. - II
Therefore, . right to take reasonable
toll is not implied in the case before rs
The court below, however, finds q,
follows on this point, vis:
Third That in the absence Of any
provision inathe charter or other acta
accepted BY the defendant fixing the
amount Of the charges for such service
the law, IL in other like cases, 6xea
them 1t reasonable rates. - :
Its reasons for tho conclusions ore
thus stated .,...: =. =. ..s,..a<.s =;
i" On this point it would seem that
there could Be- no esasntil difference
between this and any ordinary con.
tract similar in character between pri.
vate individuals, the contract on the
one hand calling for the performance
Of certain labor or other duties, and on
the other no compensation being speoi.
6cally fixed, the law in that case y in
this, would FIX the compensation a. 4
reasonable one, % Be determined in Gaze
of controversy, 81 Judicial examina'
ton, and determination from al the
facts Of tho case" The district court
here, Is It seems to US, confirms two on.
tirely different things.