Grant County herald. [volume] (Lancaster, Wis.) 1850-1968, 1874-05-28

In W orce6Ger v. Railroad, Mel
566, the court constituting a statute
which exempted public property
from taxation carefully con-
sidered the legal character OF rail
roads, and Shaw, G. j., in delivering
the opinion, says:
The only principle on which the Legisla
ture could have authorized the taking of pri
vate property for its construction, without the
owners consent, is that it was for the publ
use. Such has been held to be the character
Of turnpike corporation, although there the
capital is advanced by the shareholders, AMI
the income goes to their benefit (Com. V. Wilkin'
son, l6 Pick, 1f5). IL is true that the rea
and personal property necessary to the estab
lishment and management of the railroad Ii
vested in incorporation, but Il IS in trust for
the public.
of disposal incident to the absolute right Of
property they are obliged to use it in par
ticular manner, and for the accomplishment
of well defined public object, etc.
Treating the railroad, then, as public
easement, the works erected by the corpora
ton as public works intended for pub
lie use, we consider it established that,
to some extent at least, the works necessarily
incident to such public easement are public
works, and as such exempt from taxation.
Such We believe has been the uniform prac-
tce in regard TO bridges, turnpikes and high
ways, and their incidents, and also in regard
to other public buildings and structures of a
| like kind Has statehouses, forts and arsenas,
courthouses, Jails, churches, townhouses,
scoohouses, and generally to houses appro-
priated specially to public use.
Gases might be cited from the
courts of New York, Pennsylvania,
and from almost every other state.
But this is unnecessary, bucause any
lawyer can find them by the dozen
on consulting digest.
If railroads are public highways,
the right of the Legislature to con-
troll their management is a logical
| consequence, and exists to the same
extent as in regard to other puolic
property.
Having considered the legal char
acter of railroads, come to the re-
lations which exist between the state
and the company. Every railroad
company has a two-fold character
First-in relation to the state, it is
the agent of the state to operate a
railroad of the state; and, second,
in its relations with persons engaged
in commerce, it is common carrier.
To illustrate: & state, not forbid
den by its constitution, might con-
struct and equip a railroad and oper-
ate it; that is, run its trains by off,
GERS appointed by the state and at
the expense of tho state. The state
might then create a 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 monopoly, might
provide what rates should be charge
able for transporting persons and
freight.
Now, the real case is the j: The
state said to capitalists who desired
to engage in the carrying business,
eve desire to have a railroad built
and operated from Milwaukee to the
Mississippi River. If you will ad-
vance the money necessary to build
and equip the road, and then operate
it, subject to our supervision and
control-that is, subject to our pow
err at any time to alter your charter
as the public good may require-we
will grant you an act Of incorpora-
ton we will take and hold the land
upon which to build the road, by the
right of eminent domain, though
you shall pay,the damages assessed to
landowners +; and you shall then
have the monopoly of the carrying
business on the road and fix your
tariff of rates provided, however,
that we will reserve the right to al
ter this provision in regard to rates
if we shall see fit: or to repeal your
charter altogether, if we fnd it nee
essary to prevent you from Cypress
ing the people in exercising the pow
ers thus conferred upon you" This
proposition is accepted the capital
lists are Incorporated the state
takes and holds the land the COM
pany improves it by building and
equipping the road, and engages in
the carrying business thereon. Now,
it is found that under this provision
of the charter authorizing the COM
pany to fix it's own rates, the com
pany is guilty OF oppression and
the state exercises the right it had
expressly reserved, and alters this
provision by fixing the rates to be
charged. And now IL. is said that
for the state to do what it has ex-
pressly reserved the right to do is a
violation of the understanding or
contract between the state and the
company.
The constitution expressly pro-
vides that all charters or acts of in
corporation, granted by the Legisla-
ture at any time after their passage"
1t is we'll settled that this provision
enters into every railroad charter as
perfectly as though It's language was
embodied therein; and hence the
power of the Legislature to alter any
charter is undoubted. But alter it
how? To what extent? To what
end In what particular? The
constitution says it may be altered.
Whoever claims limitation upon
this power to alter charter. or to
except certain things out of the pow
err, has the burthen of establishing
the limitation or exception. The
constitution gives the Legislature the
power to alter a charter, without
limitation or exception, and even to
repeal 1t altogether. Mr.. Curtis
says:
Charters are to be amended or altered by
the exercise of legislative power, and if the
act in question, when rightly viewed, is not
an exercise of legislative power, but passes
beyond the field of legislation, then it cannot
be deemed TO be authorized by this article of
the constitution.
And my opinion is that it is not within the
field OF legislation; under any American con-
stitution, to fix and prescribe for the future
what prices shall be demanded, either for
commodities, or for personal service, or for 8
union of both.