The Emporia news. [volume] (Emporia, Kan.) 1859-1881, 1874-05-29

Such has been held to be the char
acter of a turnpike corporation
although there the capital is nd
vanced 10y the shareholders, ant
the income goes 10 their benefit
(Com. VS.. Wilkinson Is, Pick
l75). IL is true that the real and
personal property necessary to the
establishment and management OF
a railway is vested in the corpora
ton, hut il is in trust for the pub.
lie. The company have not the
general power of disposal incident
to absolute right of property.
They are obliged 10 uss it in n
particular manner and for the ac-
complishment of well-defined
public object, etc. Treating the
railway then as q public easement,
the works erected by the corpora
ton as public works intended for
public use, we consider it well es-
tablished that, to some extent at
least, the works necessarily Incl
dent to such public easement are
public works, and as such exempt
from taxation. Such we believe
has been the uniform practice in
regard 10 bridges, turnpikes, and
highways, and their Incidents, and
also in regard to other public
buildings and structures of like
kind, as State houses, forts, and
arsenals, court houses. jails,
churches, town houses, school
houses, and generally to houses
appropriated especially to public
use" Cases might be cited from
the courts OF New York, Pennsyl-
vania, and from almost every 9TH
er State, but this is unnecessary.
because any lawyer can find them
by the dozen on consulting q di-
gest. And if railways are public
highways, the right of the Legis-
lature to control their manage.
ment is logical consequence, and
exists to the same extent as in re-
gard To other public property.
Having considered the legal
character of railways, come to
the relations which exist between
the State and the company. Ev-
cry railway company has n twofold
characteristics in relation to
State. 1t is the agent of the State
to operate n railway of the State:
and second in its relation with per-
sons engaged in commerce. 1t is
common carrier. To illustrate:
A State not forbidden by its CON
stitution might construct and
equip n railway, and operate-that
is, run its trans by officers APP
pointed by the State and at the
expense of the State. The State
might then create Il corporation
and give it the monopoly of the
carrying business on such road.
In such case no one will deny that
the State in comforting such mon
opoly might provide what rates
should be chargeable for trans
porting persons and freight.
Now, the real case is this: the
State said to the capitalists who
desired to engage IN the carrying
business: ave desire to have a
railway built and operated from
Milwaukee to theMissisppi river. If
you will advance the money neces-
sary to build and equip the road,
and then operate it subject TO our
supervision and control-that is,
subject to our power at any time
to alter your charter as the public
good may require-we will grant
you an act of Incorporation. We
will take and hold the land upon
which TO build the road by right
of eminent domain, though You
shall pay the damages assessed to
land owners; and you shall then
have the monopoly of the carrying
business on this road, and find
your own tariff of rates; pyorided,
however, that we will reserve the
right to alter this provision in re-
gard to rates if we see fit, or to re-
peal your charter altogether if we
find it necessary to prevent you
from expressing the people in ex-
ercising the powers conferred upon
you.' This proposition is accept
ed. the capitalists are incorpoTat-
cd, the State takes and holds the
lands, the company improves it by
building and equipping the road,
and engages in the carrying bust
ness thereon. Now, it is found
that under this provision of the
charter authorizing the company
to fix its own rates the company is
guilty of oppression and the State
exercises the right it had express
~ reserved, and alters this pro-
vision by fixing the rates to be
charged. And now is said that
for the State to do what it has eX-
prcssly reserved the right to do is
q violation of the understanding
or contract between the State and
the company. The Constitution
expressly provides that all char
tiers or acts of incorporation
granted by the Legislature may be
altered or repealed by the Legisla-
turc at any time after their pass
age. 1t is well settled that this
provision enters into every railway
charter as perfectly as though its
language were embodied therein,
and hence the power of the Legis.
lature to alter any charter is I'M
doubted. Bat alter it how? To
what extent? To what end? In
what PARTICULAR The Constitu
ton says it may be altered. Who
ever claims n limitation upon this
power to alter q charter or to eX
cept certain things out of the pow
or has the burden of establishing
the limitation or exception. The
Constitution gives the Legislature
the power to alter a charter with
out limitation or exception, ana
, even to repeal it altogether. Mr.
, Curtis says: "Charters are to b,
amended or altered by tn,
. exercise of legislative power
, and if the act in question, whel
t rightly viewed, Is not CD eXercis
of legislative power, but passes be
yond the field of legislation, thel
, it cannot be deemed to be authoriz
t ed by this article of the Constitu
+: ton and my opinion is that it i
E not within the field of Legislation
/ under any American constltptio
: to FIX and prescribe for the futur
/, what prices shall be demande
: either for commodities or for pei
: sonal service, or for a union {
: both.
5 But suppose the Legislature Ia,
n in the act of incorporation EN-
d bodied the precise provisions c
!, this statute, will it be pretende
e that such provisions would b
e void, as not being legitimate eN
It ercise OF Legislative power? Til
c canaot be maintained for a me