Mineral Point tribune. (Mineral Point, Wis.) 1869-1938, 1874-06-11

alter is given by the Constitution just AS clear
! ly az the power to repeal and 1t is difilcult 10
see why Limitation cannot as well be applied
to the one as to the other. If the State may
take away the franchise entirely, why may 1t
not 50 regulate and control its exercise as to
further the public purpose for which it was
| bestowed? Ordinarily the greater includes
| he1ess. Here the lesser power is given In
express terms. The Legislature may ''aiter
and this word must be given some signifca-
ton different in the sense or in degree from
the power to repeal. 1t must mean that the
| Legislature may, in its discretion, instead OF
| taking the extreme and severe measure of re
peal, exercise the lesser and mider right and
impose such restrictions and conditions upon
the conduct of the affairs cot the cor
poration, and limit its charges, as
! will best promote the object of its creation
and prevent the abuse of the powers and priv
ileges granted to it. They have accepted their
charters subject to this express reservation,
and having SO accepted they hold them upon
the faith of the State, only taking care to de-
serve its favor or command its justice by the
manner in which they exercise the power con
ferred. If a wrong is done or mistake made
in the exercise OF the reserved power, the
aggrieved party must resort to the Legislature
| for redress. This was the agreement created
| by the acceptance of the charter, and the APP
! plcaton for relief must be made to the trbu-
nal selected by the contracting parties. The
|
| Kent the legality of the reservation cannot be
questioned. Should the Legislature refuse or
fail to correct the wrong, no worse results
| could ensuc to the corporation than would
have followed from absolute repeal But it is
hardly to be supposed that the Legislature
would fail to respond to any application
founded in justice.
The people cannot fail to appreciate the ne
cessity of railroads to the business and indus
trial interests of the State aud to the conven-
fence and prosperity Of all its citizens. They
do not desire any unwilling or uncompensated
service from the railroads, nor will they con
sent that the State should be placed in a cond-
ton of servjtude to the corporations; but If
this Limitation that the rates fixed by the Leg.
| islature must be reasonable exists at all, 1t
arises not from the reservation or its construc-
ton, but rather out of the common law rule
that, in the absence of any legislative enact
ment on the subject, common carriers are
bourd to carry all freight and passengers
which are offered at reasonable rates, ana can
not discriminate uujustly between shippers.
Ia my judgment it is impracticable to apply
, | this common law rule to railroad corporations
as a substitute for legislative control and
regulation. The use of railroads mas m
creased the business of transporting freight
and passengers to immense proportions, IL
) has brought about great and radical changes
in the commerce and business of the country.
| It has created new and diverted old channels
2 of trade; built cities and formed States.
The gigantic corporations controlling the
, railroads Of the country with their grea
wealth and influence, are practically placed
! beyond the reach Of the common law OBJ
? legation, and this warrants the position that
legislative control ought to be and is put in
, | the place of this common law liability OF
common carriers. Beside suit by the in
dvidual to enforce the common law liability
settles nothing. No general rule can be es-
tablished in single suit, while such suit
, would involve an inquiry and determination
of the cost of the road and its equipment, the
operating expenses, the amount and character
of the business, and the whole detail OF the
condition, management, and relative cost OF
I everything connected with the road. When
= this is doue, the reasOuableuess of the charge
in every other instance remains open To be
| Irrigated at such an expenditure OF
= time and money as to deter In
i diyiduals from entering such field OF
| hopeless litigation. | am led to the conclusion
that the better view is that the judgment OF
the Legislature is, by the reservation of power
| aud the necessity of the case, the measure OF
c the reasonablcucss of the regulations imposed.
q The corporation certainly cannot arbitrarily
determine the question and on the assump-
ton that the rates are unreasonable, disregard
I the law. The legislative act is conclusive that
the rate is reasonable The exercise of the
I power is of itself an assertion of its justice
and of its necessity. The railroads cannot
question it, The courts may not review ii,
for. by the agreement of the parties in accept
ing the charters under the reservation, the
whole subject is withdrawn from the domain
of judicial decision, and remains only matter
for the legislative conscience.
And so with the objection that the provision
of this law assumes control of the property of
the corporation aud deprivcs them OF its use
without making any compensation, and Is,
! therefore in conflict with the Constitutions of
J the State and the United States; as
: these corporations have no natural exist
ence, but are created wholly by legis.
lative eusctments, their power to act, in
every particular, is derived from the State.
Their capacity to make contracts, acquire and
/ use property, and to charge for its use, comes
from the State aud is granted on such terms
: and TO such eXteut rs the Legislature may
prescribe The power of the State to grant is
given by the Constitution, aud coupled
with this power Is found IN the
same fundamental law the authority
to alter the act of incorporation as the
Legislature may think the public interests
demand. The rights and privileges conferred
cannot be separated from the restrictions and
duties imposed Thepower 10 take toll cannot
be distinguished from the duty to take only
such AS the Legislature shall establish. 1t Is
difficult 10 see how restricting these tolls
within certain limits which the Legislature
deems just is any more depriving the corpora
; tious OF their property than it would be to re-
peal their charters, and thus deprive them
of the power of charging any rates at all, aud
this latter power may Cunfessedly be eNer-
eised without making conn ensatlon. Wheth.
er the State can compel the companies to op.
crate their roads for such compensation as 1t
chooses to prescribe is another and different
que ton not involved in this discussion. The
ouly inquiry while the companies are openly
violating the law by charging higher rates
than it allows is as to the power OF the Legls-
laturc to prohibit them from charging
above certain liked rates. II 1t shall be
made TO appear that the companies