Litchfield enquirer., 1874-02-05

State say: ''There is also the general pub lie power of the State by which persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort. health, and prosper ity of the State; of the perfect right in the Legislature to do which no question ever was, or upon acknowledged general principles ever can be made, so far as natural reasons are concerned. And it is certainly calculated to excite surprise and alarm that the right to do the same in re- gard to railways should be made a serious question" MT. Parsons. in his work on Contracts (vol. 2. p. 175) distinctly recognizes the right to fix by law the rates to be taken by common carrier when he says: ''Where required by statute to make a reasonable and equal charge against all he Che common carrier) can not by bylaws or rules discriminate as to amounts or modes of compensation &C., cordlng to their occupation, but must car " the same amounts the same distance for the same price for all persons" And again, on page 205, he says compensation of common car1iers ''is sometimes fixed by law, as for incorporated companies, ferries, &c." The authorities upon the subject are numerous and uniform, and they leave no doubt as to the right to limit by law the charges of common car riers to such as shall be reasonable; for they show clearly that such law is sim- ply declaratory of the common law itself. The English Parliament has repeatedly enacted laws to regulate the rates to be charged by railway and canal companies. And these laws have been construed and enforced by the courts of that country in many cases. It has been we'll said that the English statutes were enacted to cor rect abuses for which the common law, by the method of it procedure, did not af- ford adequate remedies. Is the authority of Congress, when exercising powers con ferred upon it by the Constitution, more limited than that of Parliament? We think not. According to Chief Justice Marshall in Gibbon vs. Ogden the power of Congress in the matter of regulating com merce among the States is plenary, and certainly that of Congress can be no greater.
 It will be observed that the question of the power of Congress to create or charter a corporation to operate a line of con- merce from State to State, and to exercise the right of eminent domain, is not in- volved in the passage of the bill reported. It is, however, we'll settled by decisions of the Supreme Court of the United States that Congress may charter 8 cor poration which is necessary or proper in- strument for carrying into effect any of the powers of the General Government. Osborn vs. United States Bank, ' Whea- ton, 960; Mccullough vs. Maryland, 4 Wheaton 41D. In the latter case the court by the Chief Justice Marshall said:
 ''The power of creating corporation is never used for its own sake. but for the purpose of effecting something else. No sufficient reason IS, therefore, perceived why it may not pass as incidental to those powers which are expressly given if it be a direct mode of executing them"
 If, therefore, congress should deem it necessary in the exercise of the power ex- pressly conferred, to regulate commerce among the several states, to charter new lines of railroads or canals as channels of such commerce, it's power to do so would seem heyond question. Let us consider for moment the consequences which
 must rsSalt fSosaa denial nf this DOW CT. If 1t does not exist, why may not any state refuse to permit any adequate facili- ties for the passage of the commerce of other states across it's territory? If this power IS not in congress, 1t would only be necessary for state to decline to char ter railroad or to authorize the construc- tion of @ canal, to accomplish the virtual destruction, in many instances, of the commercial interests of a neighborine state or section. Or, if congress has no power in the premises, what is there to prevent state from compelling all com mercejpassing through It's territory to pass over single line, to pay tribute to sin gle corporation, and to a single centre? It is possible, for example, that the state of New York, extending as she does from the ocean to the great lakes, could permanently interrupt and cut of commercial intercourse by railroad be- tween New England and the West, and congress remain powerless to afford a remedy?
 The right of eminent domain is an at- tribute of sovereignty, and belongs to it of necessity. It belongs to the state, un- doubtedly, for all legitimate purpose that IS to say, for any purpose under their own sovereignty. It belongs to the National Government also, and may be exercised by 1t whenever needful to the complete and effectual exercise of it's powers.
 If this were not so the United States could not erect fort or an arsenal, Custom house or Post Office within any one of the states if the state should refuse to condemn and take, and the private owner should refuse to sell and convey, the necessary land for the purpose. This whole question has re- gently been considered by the Supreme Court of Michigan in the case of From bley vs. Humphrey; Auditor General, 8 Michigan, 461. An elaborate and ex- haustive opinion was delivered in that case by one of the ablest jurists in the country (Judge Cooley), and we content ourselves with referring to it, and quot ing from it the conclusion reached by the court as follows: "Under the division of power between the United States and the individual states, each has it's sphere of sovereignty, within which it moves and operates, without let or hindrance from the other, and within that sphere it em- ploys the eminent domain whenever need full to complete and effectual exercise of its powers, and with as little occasion or necessity for the permission or assistance of the other as if the two Governments were wholly foreign to each other, instead of being constructed as parts of one har- monious system" It has been insisted that congress cannot regulate interstate commerce when carried on by railroads because the railroads themselves are chartered by the states, and therefore ex. clusively under their control. But the answer is obvious. Congress does not except for the purpose of regu- lating and controlling interstate com- merce. If this distinction is kept in mind, the difficulty suggested must dis appear. It cannot for moment be con- ceded that persons engaged in commerce among the states can escape supervision and control by being incorporated in the several states through or into which they carry the operations. The right of con- gress to regulate such commerce cannot be made to depend upon the corporate character of the agents by which such commerce is carried on. The right of state in general to control all corporations of 8 public character which it creates, is not questioned; but that this right can be carried to the extent of creating corpor- ation and authorizing or permitting it to an era oo in Ia QoFnN1nWnA and hyIkkhak