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

hc lotioMln. letter from Hon
Matt. II. Carpenter, L. 5. Senator
from Wisconsin, was published :
few days ago in the. Madison
wis State Journal:
WAsHINcroN, Nav IL.
Editor State Journal: Having
received several letters asking nv
opinion in regard To the constitn.
tionality OF the act of last winter
prescribing q tariff of rates fol-
the railway companies, and not
having time 10 answer them sepa
rately, ] ask the favor of answer.
ing them through your columns.
la my opinion the power OF
our Legislature is over the corpo-
rations of the State, TO altar,
amend, or totally repeal their
charters, To give them new and
enlarged privileges, or TO limit or
restrict those they now possess.
shall nos consider the details OF
this act. The people for twenty
years have submitted TO the enor-
nous powers OF corporations, and
II in this first act of correction
some provisions are too harsh the
companies should do what the
people have 80 long done-obey
the law, and apply 10 the next
Legislature To have it modified.
The question now is whether this
statute is valid until modified.
Instead OF submitting to the law,
however, the railways have declar-
ed their independence of the State
Government, have set its laws at
defiance, and are now operating
their roads in violation of this
statute, but in conformity with
the rules and regulations prescrib-
ed by themselves, which arc now
asserted to he of higher validity
than the statutes. The holiness
of this proceeding should inspire
corresponding iirmness on the
part OF the people, and l doubt
not the proper officers of tho State
viii take the necessary steps, and
that right speedily, to determine
whether the law-making power
touching this important step re-
sides in the Legislature elected by
the people or in board of direc-
tors elected by nonresident cap
italists, and sitting in Wall street.
l have carefully examined the
opinions of Messrs. Curtis and
Evarts, recently published, and
admire the ingenuity and skill
with which they have concealed
the real question beneath argu-
ments to establish some PROPOSE
tons which everybody comedies,
and others which, if established,
would be altogether irrelevant.
The real question is simply this {:
Can the Legislature regulate the
tariff OF rates to be charged upon
the railways OF the State for the
transportation OF passengers and
freight: The answer to this
question depends upon the legal
character of the railways, and the
relations which exist between the
State and tho railway corpora
tons, or, in other words, whether
u railway is u public property or
mere private estate, and whether
these corporations are subjects of
ahe State, amcndablc to its laws,
or sovereigntics Independent of
state control. If the RAILWAYS
are mere private estates, owned by
rue corporations in absolute right.
then they are no mors subject to
Legislative control than farm or
any other mere private property.
lf, on The other hand, railways are
public highways, then they are a
part OF The public domain of the
State farRed out for administra-
ton, hut subject to the control OF
the Legislature like any other
highway by land or water. But
fortunately for the people il is
we'll settled that the railways are
public highways, and as such sub
ject To Legislative control. This
question arose in the very begin
ming of these improvements, when
, the States undertook to exercise
the right of eminent domain in
the aid Of their construction. 1t
Ngas conceded that this could not
zoe done unless the road, when
completed, would be public prop.
s-rty. \ state could not take tho
lands al its citizen against his
viii except for public use. This
led to the question: Is a railway
puGlie highway? And the
courts OF all the States, and final
~ the Supreme Court of The
United States, have held that rail
ways are public highways, anC
may be regulated by the Legisla
ture like other public property
In the recent case of Olcott VS.
Fond du Lac county { 1G Wallace
G7S), coming here from our OWL
state, the court says, "that rail
ways, though constructed by pri
,Gate corporations and owned h,
ahem, are public highways" /
has been the doctrine of nearly
all courts ever since such conve
miences for passage and transpor
sation have had any existence
and the reason why the use has al
ways been held a public one i
that such road is highway
whethe: made by the government
itself, or by the agency of corpo
rate bodies, or even by individual
Shen they obtain their power t
construct it from Legislative grant
When tkis question came for tn
Lirst time before the Suprem
Cougt of South Carolina, at tha
time one of the ablest courts i
the Union, in Railway vs.. Char
pell Il Rice, =. Z. the copr
after examining the subject {
length, concluded Us follows
." May not our railways, then, /
fairly considered in character an
objects as international, and there
fore public highways" Again
Iihe court says: But take a.
other point of view, which I cal
not help thinking of lasting IN
taortance. Such 4 railway Us oul
shouid he held as n highway c
SesoGnj OF its great objects, an
for the same reason to be held III
der public control is it not wi:
10 hold such company as Il
guardians or lessees OF q gre
highway endowed with a publ
SFanchise, yet subject to the co
troll which their purposes indica
rs necessary and proper for su'
an establishment, and which q
general right TO use the road a
solutely requires. Such rO:
mnst be held as part OF the pa
lie domain farmed out to indivi
Ual men. for its practical admin
tration aud order alone, and
placed aloof from such control
.rn,ld inau,;foIlx- haoanaa auspa,