Grant County herald. [volume] (Lancaster, Wis.) 1850-1968, 1874-05-28
THE: RAILROAD LAW.
An Argument in Support of its
Constitutionality.
Railroads Are Public High
ways and Subject to
State Control.
The Opinions of,Hon. VIM. M. Evarts
and Judge Curtis Reviewed.
Letter from Hon. Matt. H. Carpenter.

Letter from Hon. Matt. H. Carpenter
WASHINGTON, May IL, 1874.-Eds
tors State Journal Having received
several letters asking my opinion il
regard to the constitutionality of tn,
act of last winter prescribing TART
of rates for railroad companies, anC
not having time to direct them sep
arately, | ask the favor of answering
through your columns.
In my opinion, the power of oul
Legislature over the corporations o
the state, to alter, amend or totally
repeal their charters to give them
new and enlarged privileges, or tc
limit and restrict those they now
possess, is full and clear. | shall not
consider the details of this act. The
people for twenty years have SUBJ
mitted to the enormous powers OF
corporations, aud if, in this first act
of correction, some provisions are too
harsh, the companies should do what
tho people have so longe done-obey
the law, and apply to the next Legis-
ature to have it modified. The ques-
ton now is, whether this statute is
valid until modified.
Instead of submitting to the law,
however, the railroad companies
have declared their independence of
the state government, have set its
laws at defiance, and are now oper-
ating their roads in violation of this
statute, but in conformity with rules
and regulations prescribed by them
selves, which are now asserted to be
of higher validity than the statutes.
The boldness of this proceeding
shonld inspire corresponding firmness
on the part of the people, and, l
doubt not, the proper officers of the
state will take the necessary steps,
and that right speedily, to determine
whether the lawmaking power touch
ing this important subj set resides in
the Legislature elected by the peo-
pie or in board of directors elected
by nonresident capitalists, sitting in
Wall street.
| 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 be-
meath arguments to establish some
proposition which everybody con>
cedes, and others which, if establish
ed, would be altogether irrelevant.
The real question is simply this
Can the Legislature regulate the
tariff of rates to be charged upon
the railroads of the state for the
transportation of passengers and
freight?
The answer to this question de-
Dends upon the legal character of
railroads and the relations which ex-
list between the state and the railroad
corporations or, in other words,
whether a railroad is public property
or mere private estate, and whether
these corporations are subjects of
the state, amenable to it's laws, or
sovereignties independent of state
control.
If railroads are mere private es-
tates, owned by the corporations in
absolute right, then they are no more
subject to legislative control than o
farm or other mere private property.
If, on the other baud, railroads are
public highways, then they are a
part of the public domain of the state,
farmed out for administration, but
subject to the control of the Legisla-
ture, like any other high way by land
or water.
But, fortunately for the people, it
is well settled that railroads are pub
lie highways, and as such subject to
legislative control. This question
arose in the very beginning of these
improvements, when the states un-
dertook to exercise the right of en-
inent domain in aid of their con-
struction. 1t was conceded that this
could not be done unless the road,
when completed, would be public
property. A state could not take
the land of its citizen against his
will, except for public use. This led
to the question, is railroad public
highway -? And the courts of all the
states, and, finally, the Supreme
Court of the United States, have
held that railroads are public high
ways, and may be regulated by the
Legislature, like other public prop
erty.
In the recent case of Alcott v.
Fond du Lac County, 16 Wallace,
578, coming here from our own state,
the court say
That railroads, though constructed by pri-
vate corporations and owned by them, are
public highways, has been the doctrine oil
nearly all the courts, ever since such conyen.
fences for passage and transportation have
had any existence.
And the reason why the Use has al ay:
been public one, is that such a road is
highway, whether made by the government
itself, or by the agency of corporate bodies
or even by individuals, when they obtain Their
power TO construct it from legislative grant.
When the question came for The
first time before the Supreme Court
of South Carolina, at that time one
of the ablest courts in the Union, II
Railroad V. Chappell, l Rich, S. G.
me court, after examining the sue
ect at length, conclude as follows:
Nay not our railroads, then, Be fairly con
sidered in character aud objects as International
and therefore public highways" Again tht
| court say: "Bnt take another point of view
| which I cannot help thinking of lasting i'm
portance Such railroad as ours should B
held as highscay, on account of its great OBJ
| jects, and for the same reason 10 Be held unde
| public control Is it not wise to hold such
company, as the guardians or lessees of
great highway, endowed with public fran
chse, yet subject to the control shieh their p''r
poses indieats as necessary and proper for sucl
an establishment, and which the general RICH
| to use the road absolutely requiresf Such
road must be held as part of the public do
main, farned out to individual men for il