Watertown republican. [volume] (Watertown, Wis.) 1860-1906, 1874-05-20

to bridges, turnpikes, and highways, and
their incidents. and also in regard to other
public buildings and structure s OF q like kind
~ State houses, forts and arsenals, court
houses. jsils, churches, town-houses, school
houses and generally to houses appropriated
specially TO public use."
Cases might be cited from the courts OF
New York, Pennsylvania. and f'om al
most every other state. But this is un-
necessary, because any lawyer can find
them by the dozen on consulting q digest.
If railroads are public highways, tho
right Of the legislature to control their
management is q logical consequence, and
exists to the same extent as in regard to
other public property.
Having considered the legal character
Of railroads, come to the relations which
exist between the State and the company
Every railroad company has q two.fold
character: First-in relation to the State,
it is the agent of the State to operate q
railroad of the State; and, second, in its
relations with persons engaged in COM
merce. it is common carrier. To illus
trate: A state not forbidden by its con
stitution, might construct and equip a
railroad and operate it; that is, run its
trains by officers appointed by the State,
and at the expense Of the State. The state
might then create 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 chargeable for transporting persons and
freight.
Now, the real case is this: The State
said 10 the capitalists who desired to en-
gage in the carrying business, 1--WE desire
t. have = railroad built and operated
from Milwaukee to the Mississippi river.
If you will advance the money necessary
to build and equip the road, and then
operate it, subject to our supervision aud
ccntrol-thst is, subject to cur power a.
any time 10 alter your charter as the pub
lilo good may rcquire-~e will grant
you an set Of Incorporation We will take
aud hold the lsad upon which to build
the road, by the right Of eminen' domain.
though you shall pay the damages a.sess-
ed to landowners and you shall then
have tho monopoly Of the Carrying business
on this road, and FIX your own tariff rates:
Provided, however, that we will reserve
the right to alter this provision in regard
to rates, If we shall. see fit; or to repeal
your charter altogether, if we find it neces-
ssry to prevent you from opprsssing the
people 10 exercising the powers thus con-
fsrrsd upon you" This proposition is as-
cepted; the capitalists are incorporated; the
State takes and holds the land the com
pany improves it by building and equip
ping the road, and engages in the carrying
business thereon. Now, it is found that
under this provision of the charter author
ing tho company to fix its own rates, the
company Is guilty Of oppression aud
pressly reserved, aud alters this provis-
ion BY fixing the rates to be charged.
And now it is said that for tho State to do
what it has expressly reserved the right to
do, is q violation Of the ding or
contract between the State and the COM
psny.
The constitution expressly provides that
all charters or sc,s Of incorporation,
granted by the Legislst ure, ''may be al
tered or repealed by the Legislature at
any time after their passage" It is we'll
settled that THE provision enters into
every railroad charter as perfectly as
though its language was embodied there
in and hence the power of the Legisla
ture to alter any charter is IN doubted
But alter it how To what extent? To
what end? In what particular The Con-
stitution says it may be altered. Who
ever claims a Limitation upon this power
to alter charter, or TO except certain
things out of the power, has the burthen
of establis hing the Limitation or exception.
The Constitution gives the Legislature the
power to alter charter, without limita.
ton or exception, and even 10 repeal it
altogether. Mr.. Curtis says:
"Charters are to be nended 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 autho ,ized by this article Of
the Constitution.
"And my opinion is that il is not within
the field of legislation, under any American
constitution, to fix and prescribe for the tu-
ture what prices shall be demanded either
for commodities, or for personal service or
fer union CT BOTH
But suppose the Legislature had, in the
act of incorporation, embodied the pre-
else provisions Of this statute. Will it be
pretended that such provisions would be
void, as not being legitimate exercise OF
Legislative power? THIS cannot be rasin-
tanned for q moment. But how is the case
different when the Legislature subse-
quently does the same thing under a
power expressly reserved by the Constitu-
ton to alter the charter Under this un-
limited power of alteration, the Legisla-
ture may certainly enact anything which
could originally have been included in the
charter. And who will be bold enough to
say that the Legislature, in granting a
privilege, may not prescribe the extent to
which 1t might be enjoyed? In granting
a monopoly Of the carry ing business from
TO B, may not The Legislature prescribe
the mode and manner of it's exercise :?
After a franchise has been granted upon
conditions, can the company claim the
franchise freed from the conditions All
this would he absurd yet it is precisely
what results from the above quotation.
But the proposition am contending for
does not rest upon reason merely it has
been twice declared by the Supreme Court
of the United States, in we!l-considered
cases, and no opinion Of counsel can
shake it.
In Sherman vs. Smith, ! Black, 597, the