, 1874-05-16
anaiIroads Are Public Highways,
and, as Such, Subject to
Legislative Control."
I'LL tks Corporations Of The State Held
Their Franchises Subject to ths
fill Of the Legislature"
aIhe Legislature Has Power to Alter
a Charter, Without Limitation or
Exception, and Even TO Re-
peal It A1together.''


peal IL A1to5eLneTs'
WASHINGTON, 1fay II, 1874.
c,,,, Editor, Of tas H:sensin STATE Jrurra4:
p.r;nc received several letters Asling my
on;nion il regard to the couAtitutionaiity Of the
~. ri last winter prescribing tariH OF rates for
,,,,ro,d com, ,,auies, and not having time to an-
,uc, them separately, I ask the favor OF answer
iup through ycut Columns
In mr opinion, the power OF our Legislature
rrr .ke corporations Of tho Stale, to alter,
,nand, or Totally repeal their charters to give
hem new md enlarged privileges, or to restrict
nd Init those they now possess,
sfuLL AND CLEAR.
shall not consider the details OF this act. = The
naanIa for tseDtv years have submitted to tue
,acymons powers OF corporations, and II. in this
&c: Of correction, some provisions are too harsh,
tho companies should do what tho people have
70 long done, obey tho law, ard apply to the
rcxt Legislature to have it nodded The aues-
ton uoS is, whether this atstuto Is ralid until
modified.
Instead of submitting to tbs lam, however,
the rziiro.d companies have declared their indie
pealepce Of thu Siate Government. have set its
Laws at defiance, and are now operating their
roads in violation Of this statute, but in coz
iJr-nty with rules and regulations prescribed by
themselves, which are now asserted to be Of
higher validity dian the statutes. The boldness
Ct this proceeding shonld inspire corresponding
Eruncss On tse part Of tho people, aud doubt
10. tue proper officers of tho Stata will take the
necessary Eleps, and that right speedily, to de-
tetzn:ns she;aar the law-maiang power. touch
inG ttis Important subject, resides in the Ieg6-
H. nj k,ry f1,N I'd <,f
Directors ciecicd by noo-residont capitalists,
b;ttins In Wall street.
I Lace carefully examined tho opinions Of
Nessrs- Cults and Evarts, recently published,
tal A:lmlre the irecn11ity and skill with which
they h.te concealed the real question beneath
nguncIte 70 establish some propositions which
eyerocdy concedes, end others which, If eRt.b
LaAed, would be altogether Irrelevant.
THE REA. QUESTION
Is E:nply this: Gun the Legislature regulate tbs
It Tho State for the transportation of passengers
End freight
The .usver to this question depends upon the
legal character OF railroads and the 1elatioua
which exist between the State sud the railroad
cospoIatiuus; or, in other words, whether rail-
r,ad is public property or mere private eatate,
snd whether ;Acso corporations are subjects Of
the 6i2:e, ameu=ble to its laws, or sovera,gnties
independent OF STATE control
Ii ,allroads are mere private estatcs owned By
the corporations IN absolute right, then they arc
no more subject to legislative control than
1arm OF other mere private property. II, on the
olhtr hand, railroads arc public highways, then
laey are part Of the pu1hc domain Of the State,
fa-med out for administration, Tut subject to tbs
control Of tho Legislature, like any other high
way By land or water
bat, fortunately for the people, 1t is we'll
settled that railroads ere public highways, and,
Is sach, subject to Legislative CONTROL THIS
question arose in 1no very beginning Of these
Improvements, when the States undertook to ex-
esclse The right OF eminent domain, in aid OF
coald not be done unless the ro.d, when COM
rleted, would be public propa1ty. L Stats
could not take the land of its citizen against bis
vii, except for public use. This led to the
question, Is . railroad public hlghvav2 And
tue courts OF all tho States, and. finally, tho
that
RAILROADS AEE PERLIo HIGHWAYS,
and may 10 regulated by the Legislature, like
o:her public pl oporty.
In tie recent case Of 0lcou rs. Fond. du Lac
County, 1C Wallace, SIS, coming here f1om our
Own state, lhe Cour: say:
That railroads, though constructed by private
pogaticls and Owned by them, are public hiuhnats,
k1s bten tie doctrine ot nearly MI tho courts, ever
s!uce such eooTeaeEccs for passage nnd Transports
ton haye had any e1istencc. And the re.son
shy the has always been held public it, hat
saeh road Is highway, wbethsr made by the Gov
by individuals when they obtain their power
% oconslruct It from legislative grant
When this question crme for tho first time be-
fore the Supreme Court of South Carolina, at
that tno one Of tbs ablest courts in the CEion,
in Railroad us. Chapel. / Rice S. C.. the Court,
after examining the subject at length, conclude
Us iollows:
Nay nc: railroads, thrn BE- fairly considered
paa.ie Li5assys'
Again t1la H1.1yt
But take another point Of Tiev which cannot help
sa!nEne Of Ls:inS Importance. Such r-ilroal
oass saoutd be hea a. h;chnuv, on account Of i;s
seat o%oc.s and, for the SINE reasof 10 Be he'd Hn
er pubic control Is it no. wiae to hold such CON-
ran5 Is the guardians les.ees Of 2reat highway
en3o*ed WITH public franchise yet suoect to t"< con-
Proper for ailch ea,2b hment, and which tho gen.
esa 1gat to rse tho road absolutely requires? such
tlo4d must be held part Of the public domain.
i.rsacd out to individual for its practical admin
!sssahon and oraer alone. dna i rluecd dieof from
sues eoEt1S ssou.d ftr,taoty becor< sue1ected Of
p1sta'dpr ana odaaus to the rfotlie-
III Norcester Us. Railroad. Net, 5c6, the
eou't. constituting statute which exempted pub
Is pfoaerty from taxation. carefully conHideted
TEE LEGAL CHARACTER OF RAILROADS,
ING Shaw, c. j., in delivering the opinion, ssys:
Tde only principle on which the Legislature coud
se authorized tile taking Of rr.ate property for its
sas'ez tat ualtic ns Such has been held to 10 tbs
Asses Of tururlla corpor.tian, although there the
is adf2uceu by the Shareholders, and tie 1t0s
ne;r oentat. {(oM. Hikiason. lG Pick 175).
sFTe thst tbs real and personal property necessary
ae establishment and ns Aeemeut OF tho rniToad
.etea In the erporaaon, bt it II in stt Jor thu
4Ae COMPANY hare not the general power of disposal
;;aeat TO u. a5soute right Of property; they IRE
o-eta 70 u3e It In particular manner. and for tile
'eroelash1nent Of we-dehncd pnblic object, etc.
Eating lhe railroad, then, rs public easement, tho
~ erec@ad by the corporation ~ public works IN
1H puf4i,c nse. cousider it well esta tahlislod
% Soma extent at least, the works nccessari1J In
- et 70 such PUBIC easement public works,
G, faSa+ e1anpt from taxatioa. Such, we be-
Es's, fas been tbs uniform practice In regard to
tufnpikc* and HIGHWAYS, and their incidents,
sAo tn regard to ohsr public buildings and struc
i like kind. as Stnte-H ou.eA, forts and arse-
cour-aou1es, jails, churches. town-houses,
s-ro-house7. and generally to houses appropriated
'Easssas t. public use.
tases might be cted from the courts OF New
roa, feoasylEana aud from almost ererv other
ia Bat this is unnecessary, because any
sdges:
y. railroads arc public highways, the right Of
Legislature TO control their management IL
ALo61CAL CONSEQUENCE,
~ - EXISTS to tho same exten: rs IN regard to
0.aef public property.
ntslnS considered the legal character Of rail-
..saaa, come to the relations which exist De-
,".s so the State and the company Every raal~
- Icy Company has tEo-foll Character: Flrst.
r rEIaa1lnn to the State, It il the agent Of the