The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1873-05-22

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c.IIl1l. .1l o 0c tcI trrct ~ fItt ~ , VS.
DECLARED s. ftcr nia1I lfrir meats r.. i,rI.l-l
Nci n ll'..,F 4o'a.E ttn u
faal ~ ~ elanlr ...-i,-sut 3 - glsl ea- Ihe
tetsiztd ila % DE rIstt nl.l ~ r11sr srlele
and crpIv s. 81 fhis el ~ ordcle Ne-r i-.le- ~
Fetr1trf ISL and 81 We nei aala i>io itst ID 81
nm. ris,-t n NJ >i'e decided tnar ttc u-c ~
~ SD wen hof Pablo rss and fl-rrferc flsi ihe
been as tren settled II Wisconsin, essrirre li.sr
me cons ir1ciion 2. { -elis 1
corporation That the Statc might if-ei naks such
an Improvement md impose taxes 70 tciIaf ne cost.
81 exercise is right u eminent domain therefor
beyold question Yet, e0nfessedy b colld neither
take property TAX f-r such plrcsa. unless ..e
lrIe q public one And It Wa also ne undoI1cd law
Of the state that auilding railroad OF cnai by
use ana tins TIE power ~ the Legislature 10 dele
gate % such company the state rnf q eminent do
as said 81 the supreme Count q the state lhaf the
Incorporation Of companies Tor me purpose - con
siIucfing railroads canals. affords the best Lnstr
ton ofth delegation q power % exercise me figt q
eminent domain. BY the condemnation and seZure q
privqte properly LOT p9ue es upon nalne J9st com
pnsation therefor II j. admitted thai the only prin
ciple upon which such delegation o power can be j1st
fed Is ihat the property taken By these companies is
taken foE the public use Similar language was used
and decision 10 The same effect was made IN Robins
VI The Railroad Company, Wis, 6li- In Har6rook
u Milwaukee ~ WIS., i5 case Mhere tle right 70
n < for the improvement OF hardor undrr cousid
GRAFTON. the court used his significant language.
tfo-i-ad ~, the Taysafnr 10 enaave in works OF In
ternal Improvement such the building OF railroads.
canals harbors and the like loan their credit in
aid thereof and 10 defray the expenses Of snch i'm
prOyements, make good their pledges by an exercise
Of the power OF taxing the persons and property Of
their citizens has always been sustained the ground
that such works although they are ia general operated
and controlled by private corporations are neverthe-
trade commerce and INSTRUMENTATION Between diff
ferenf sud distant portions OF the country indispensa
originally supposed that they would add. and subse-
qnent experience demonstrated that they have added
sources OF the inhabitants Of cities towns. villages
which they are connec.gd AZ Is IN view OF these re
suits the public good thus produced and the benefits
thus conferred upon the persons anf property OF an
the individuals composing the community that courts
have been able 10 pronounce them matters Of public
concern for the accomplishment Of which the taxing
power might lawfully be called INTO action. i Is in
this sense that they said 70 fan far within the
purposes for which municipal corporations created
credit for their construction
SO also in Soens v. Racine, 10 Wis, 2S where the
validity OF the law authorizing local 10 secure the
Lake Shors in question, the court discussed at
length the nature Of q public for which taxation
was lawful ruled that the usewas public one though
only the property Of some inhabitants Of the city
we'd Temarking that to determine whether matter is
public Ormereiy private concern we have not 70 de-
iermfne whether or not the interests Of ndivid
uals {, IN be directly promoted but whether those Of
he whole or the greater part Of the community viii be.
And again, IN Broadhead Y. Milwaukee, - Wisconsin.
6j2, the cOUU said:
sThe Legislature cannot create public debt or levy
tax authorize municipal corporation 10 do so, in
order 10 raise funds for mere private purpose II
cannot in the form Of tax take the money OF tlIScit
zen and give J. 20 lhe 4huNlau INC PDne IhteEest or
welfare being in no way connected with the transaction
The objects for which the money is raised by taxation
terest and ,webeing Of the community required TO
'To Justify the court in arresting the proceedings
and declaring the tax void the absence of all possible
public interest in the purposes for which the funds
raised must be clear and papable so clear and pal
blush
See also Clark vs. Janesyillc 10 Wis, 1856 and Bush
nell VS.. BeOit, h., 1875.
made by its highest court before the county orders
now n Sgs were i ieG' t gS b;I ~ 1 t &c.
by corporation created by the State for the pur
pose was a matter Of public concern, and that be-
cause il was public use the right of eminent domain
might be exerted delegated for it, and taxation
might be authorized for its aid 1t the declared
law of the State, therefore, when the bonds now in
suit were issued, that the uses OF railroads. though
built by private corporations, were public uses such
warranted the exercise of the public right of emf
nent domain in their aid, and also the power of taxa
ton. We are not then concluded by decision made
in 1870, that such public are not of nature to
justify the imposition Of taxes. We at liberty TO
inquire what public uses. and what restrictions, If
any, imposed upon the states taxing power.
It il not claimed that the constitution of Wisconsin
contains any express denial of power in the Legisla
ure TO authorize municipal corporations to- aid in the
construction OF railroads. or to impose taxes Tor that
purpose The entire legislative power of the State is
confessedly vested in the general assembly. An i'm
piled inhibition only Is asserted. is insisted that
the State cBnnOt itself impose taxes for any other
than public use so the Legislature cannot empower
a municipal division of the State to levy and collect
taxes for any other than such an use and it is denied
that taxation to enable the county of Fond du Lac to
aid in the completion Of the Sheboygan and Fond du
Lac Railroad is taxation for public None con-
tends that the power of State to tax, to authorize
taxation is not limited by the uses which the pro-
be laid for private But is the construction of
railroad by company Incorporated by State for the
purpose Of building it, and endowed with the States
right of eminent domain, thing in which the State
has, as such, no interest? That the Legislature of
wisconsin may alter repeal the charter granted
the Sheboygan and Fond-du Lac Railroad Company is
The Railroad can, therefore, be controlled and rega
lated by the constitution Its be deined its
tolls and rates for transportation may be limited Is
work made by authority of the State, subject its
regulation and having for its object increase of
public convenience, to be regarded as ordinary private
That railroads. though constructed by private corpo-
rations, and owned by them, public highways, has
convenicnces for passage and transportation have had
any existence Very early the question arose. whether
States right Of eminent domain could be exercised
by private corporation created Tor the purpose of con-
strucfing a railroad Clearly it could not unless TAX
ing land for such purpose by such agency taking
land for public use. The right of eminent domain
nowhere justhes taking property for private use Yet
IL doctrine accepted that State LeOs-
ature may authorize private corporation TO take land
for the construction of such aroad making compensa-
ton to the owner. What else does this doctrine mean
II not that building ralroad though 1t be built by
private corporation is an act done for public use
And the reason why the has always been held
public one, is that such road Is an highway whether
made by the government itself by their power to
constructit from legislative grant Itwoud be useless
to cite the numerous decisions this effect which have
been made in the State courts. We may, however,
refer TO two three which exhibits fully not only the
doctrine ITSELF but the reason upon which il rests
Rpckman v Schenectady
company page As; Blodgett V. The Mohawk and Hud-
son Railroad company, IL Wendell, i; Worcester '.
Railroad company, Met. $780,
Whether the use Of q railroad is a public or a pri-
waite one depends in measure upon the question who
dered matter Of any importance that the road was
built by the agency Of private corporation No mat
ter who is the agent the function performed is that of
the state Though the ownership is private the is
public. So turnpikes bridges, ferries and canals al
though made by individuals under public grants by
companies are regarded as pubicijuris. The owners
may be private companies but they compelable to
permit the public TO their works in the manner in
which such works can be used-lCharles River Bridge
Company '. Warren Pick. 1855. That all persons
may not put their own cars upon the road and use their
motive power has no bearing upon the question wheth-
er the road is public highway. II bears only upon
the mode OF use OF which the Legislature is the excu-
/ sive Judge Cooley's Const Linn.
It is unnecessary, however to pursue this branch Of
the inquiry further for is not seriously denied that
railroad though constructed and owned by private
corporation is matter Of public concern and that its
uses far public that the right OF eminent domain
Of the State may be exertcd to facilitate its eonsfn
tion. But il is contended that though the purpose
and the may be public sufficiently to Justify taxing
private property they not public when the right to
impose taxes Is asserted II is argued that there are
differences between the power Of taxation and the
power of taking private property for public use and
that because Of these differences 1t does not follow
that wherever the power may be exeted the other
can We do not 10 inquire whether this is so or
not The question Is, whether II railroad built
and owned by private corporation, Is for a public
use because Il Is highway, taxes may not be imposed
in furtherance of that IL there be any purpose
for which taxation would seem to be legitimate Il il
the making and maintenance or highways. They have
always been governmental affairs and il has ever been