The Rutland daily globe. [volume] (Rutland, Vt.) 1873-1877, 1874-10-30

quence of their charters Like individuals
they are subject to the police power Of the
state and this power may be eXerled II
their regulation and control so far ms thu
public safety and general good require
Chief-Justicc Marshall, in the Dartmouth
College case, when discussing the nature
of that provision of the Federal constitu
ton which torbids the states to pass an,
law "impalring the obligation of contracts
and also holding that charters granted tC
private corporations come within the mean
ing of the provision, expressly said
THAT the trainers of the constitution die
not intend TO restrain the states in the regu
iation IF TIER ctcH institutions, adopted
Tor internal government, and that the
instrument they have given us is not to be 50
construed may be admitted. The provision
of the constitution never has been under
stood to embrace other contracts than those
which respect property or some object OF
value and confer rights which may be as
serted in court of Justice" The police
| power of the state acting within its proper
limitations, is, hence, not at all disturbed
by this provision.
Judge Redfield, formerly chief justice OF
! Vermont, IN his treatise on the Law of
Railways, holds the following language :
| "Ralways, so far as the regulation OF their
| own police affecting the public safety, both as
| to life and property, and also the general police
| power OF the state, as to their unreasonable
| disturbance OF and Interference with other
| rights, either by noise of their engines In places
| OF public concourse, as the streets OF city, or
| damage to property, either In public streets or
| highways or escaping from the adjoining fields,
| there can be noquestion whatever are subject
to the right of legislative control. And this
| right extends not only to the matters enumer-
ated. but to an infinite variety of other matters
coming into the same general description of the
| public police and the police OF the railways, OF
| the Importance or necessity OF which the legls-
| laturc must be the judge"
In support of this statement, the Judge
refers to list of cases decided by the
courts, in which the police power of the
state over railways has been asserted and
maintained. The uniform doctrine of the
courts, as Judge Cooley observes, is that
the clause of the constitution which refers
to ''the obligation of contracts" does not
so far remove from state control the rights
and properties which depend for their ex-
istencc or enforcement upon contracts as to
relieve them from the operation of such
regulations for the good government of the
state and the protection of the rights of
individuals as may be deemed important.
All contracts and all rights, it is held, are
subject to this power, and regulations
which affect them may not only be estab-
lished by the state, but must also bc subject
to change from time to time with reference
to the general well-being of the commu-
nifty, as circumstances change or as expe-
rience demonstrates the necessity"
Conceding, then, the existence of the
police power of the states and the broad
extent of It's applications, what is the limit
of its exercise in respect to private corpo-
rations, as imposed by the constitution of
| thn fnifnl F.
the answer of Judge Cooley to this ques-
| ton:
"The limit to the exercise of the police power
In these cases must be this: The regulations
| must have reference to the comfort, safety, or
welfare OF society; they must not be in con-
nict with any OF the provisions of the charter
and they must not under pretense OF regula-
ton, take from the corporation any of the es-
sential rights and privileges which the charter
confers. In Short they must be police regula-
lions In fact, and not amendments OF the char
ter I'm curtailment of the corporate franchise
Judge Cooley does not base this lmita-
ton on his own ipse dirit but sustans it by a
list of judicial authorities The substant G
of the limitation is this: The police power
of the state must not destroy or impair the
corporate franchise or act in conflict with
the charter under which the franchise is
held. 1t can come up to this point in the
way of regulation, but here it must stop.
The question of absorbing present inter-
est to the people is the application of this
doctrine. The constitution of Illinois. for
example, declares railroads to be public
highways, free for all persons for the trans
portation of their persons and property
thereon, under such regulations as may be
prescribed by law. 1t further says that the
Legislature of the state "shall from time to
time pass laws establishing maximum rates
of charges for the transportation of pas
sengers and freight on the different rail
roads of the state" 1t also declares that
the legislature 'shall pass laws TO correct
abuses and prevent unjust discrimination
and eXtortion in the rates of freight and
passenger tariffs on the different railroads
| in the state" IL contains numerous other
provisions bearing upon the regulation of
| railroads in respect to the issue and trans
| fer of stock, the election of directors, the
consolidation of companies, etc. Do these
provisions, especially those that refer to
passenger and freight rates, place the con-
stitution of Illinois in conflict with that of
the United States? Essentially the same
question is raised by the Potter law of
| Wisconsin. The great legal point at issue
in the hallway War" is whether the
states can undertake to regulate the
charges of railway corporations, and
whether the regulations which have been
made by legislative authority do, in fact,
impair "the obligation of contracts"
1t seems to us that the police power of a
state, so far as the right to fix maxi
mum rates is concerned, is part of every
railway charter, existing anterior to the
charter; and, hence, that the latter is sub
ject to this right. If railroads be public
highways and if the corporations owning
them are common carriers, then so far
they come under the general principle of
publict juris; and the right to regulate
them in respect to their charges, and es-
peclally to ''prevent unjust discrimination
and eXtortion in the rates of freight and
passenger tariffs" is as real as any other
right of regulation, provided it does not
impair "the obligation of contracts"
Whether such regulation in any given
case impair this obligation is question of
fact to be determined by court of JUS
tice, in view of the character and effects of
the regulation itself. The contract be-
tween the state and II railway company
chartered by II is not general license for
the latter to do whatever it pleases. Ii
cannot plead its charter in connection with
the Constitution of the United States as a
protection for extortion and unjust dis
ordinations The police power of the
state may say to it that these things shall
not be done; and if it claims that the ex-
ercisc of this power is inconsistent with
its chartered rights, as protected by
the constitution, then it raises
question which the courts must settle.
Whether this remedy proposed will cure
the evil is another question. The remedy
is within the legal provinces of the states.
The abuse OF it, and not its proper use, is
the only thing of which railway corpora
tions can justly complain. If they assert
such an abuse, the burden of proof rests
| upon them to show the fact, since the pre-
sumption is always in favor of law en-
acted in due form.
The language of Chancellor Walworth,
in the case of Beekman VS.. the Saratoga
and Schenectady railway company, as re-
ported in Redfield's "American Railway
Cases, is very explicit as to the power of
the state to regulate railway charges. We
quote as follows:
"The objection that the corporation Is under