New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1874-05-31

United States to compel owners of property
or persons, natural or political, to part with
their property or render their personal ser
vices at their own expense and risk to the
public for prices fixed by the Legislature.
The property of the corporation is the
same as that of bank. That the railroad
is in some sense public highway is not
sufficient to authorize the Legislature to
pass this act. 1t can not be distinguished
from other common carriers. No property
can be taken without compensation, and
impairing it, though it remains in posses
sion, is sufficient taking. Pumpelly vs..
Green Bay Company, ID Wal, &C. The law
would compel the continuance of the road
at loss, or close it, and, therefore, takes its
property without compensation. He further
considers that it impairs the obligation of
contracts.
Against these opinions and the power Of
monopoly, as represented by the railroad
corporations, Hon. Matt Carpenter couches
his lance, and, as the champion Of the
Changers, runs tilt with all the fire of
knight Grant. Unsolicited, except by pri-
vate letters from friends who wished to
know his opinions, he addressed letter to
the Wisconsin State Journal. in which he
goes deeper into the subject than either of
his learned opponents. As usual, he ham
dies his facts and arguments without gloves.
In his opinion the power Of the Legislature
to alter, amend, repeal, enlarge or restrict
is full and clear. The assertion of the rail
roads that their rules are of higher validity
than the statutes, should inspire CORE
spending frmness on the part of the people:
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!
If railroads are mere private estates,
owned by the corporations in absolute right,
then they are no more subject to legislative
control than a farm or other mere private
D operty. If. on the other hand, railroads
are public highways, then they are part
of the public domain of the State, farmed
out for administration, but subject to the
control of the Legislature, like any other
highway by land or water.
That they are public highways Mr.. Car
penter proceeds to demonstrate:
In the case of Olcott vs. Fond du Lac
county, Is Wallace, 67S, coming from Wis
cOnsin. the court says:
That railroads, though constructed by
private corporations. and owned by them,
are public highways, mas been the doctrine
of nearly all the courts, ever since such
colveniences for passage and transporta-
ton have had any existence. And
the reason why the use has always been
held a pnblic one is, that such road is
highway, whether made by the government
itself, OF by the agency of corporate bodies,
or even By individuals, when they obtain
their power to construct it from legislative
grant.
He quotes also from Railroad VS.. Chapel,
l Rice, S. c.
May not our railroads, then, be fairly
considered in character and objects as in
ternatiOnal and therefore public highways.
Such railroad as ours should be held as
a highway, on account of its great objects,
and, for the same reason, to be held under
public control. Is it not wise to hold such
company as the guardians or lessees of a
great highway, endowed with public
franchise, yet subject to the control which
their parpOses indicate as necessary and
proper for such an establishment, and
WulCu tuC SCuCAdi III W uoC tuC AVou ou>
solutely requires? Such a road must be held
as part OF the public domain, farmed out
to individual men tor its practical admins
tratiOn and order alone. And, if placed
aloof from such control, it would inevitably
become suspected Of Partially, and odious
to the people.
A turnpike is for public use, although the
capital is furnished by private corporations.
~ IL Il
ing, IT'S Chief Justice Shaw said:
The company have not the general power
of disposal incident to the absolute right of
property; they are obliged to use it in
particular manner, and for the accomplish
ment of a we'll defined public object. Wor-
cester VS. Railroad, Met, sos.
In the same case works necessary to such
public easement are styled public works,
and as such exempt from taxation.
In applying these authorities and numer-
Gus others cited, Senator Carpenter says:
Every railroad company has a two-fold |
character: First, in relation to the State, it |
is the agent of the State to operate rail |
road of the State; and, second, i'll it's rela- |
tons with persons engaged in commerce it |
is a common carrier.
Now, the real case is this: The State said |
TO the capitalists who desired to engage in /
the carrying business, "We desire to have |
a railroad built and operated from Milwau-
zee to the Mississippi river. If you will
advance the money necessary to build and
equip the road, and then operate it, subject |
10 our supervision and control-tbat is, sub
ect to our power at any time to alter your
charter as the public good may require-we
will gran. you an act OF interpretations; we
will take and hold the land upon which
20 build the road, by the right of
eminent domain, though you shall pay
he damages assessed to land owners;
md you shall then have the monopoly
# the carrying business on this road. and
tx your own tariff of rates; provided, how
ver, that we will reserve the right to alter
his provision in regard to rates, if we shall
ee tit; or to repeal your charter altogether,
we find it necessary to prevent you from
ppressing the people in exercising thepow
RS thus conferred upon you" This PROPOSE
ion is accepted; the capitalists are incor-
Grated; the State takes and holds the land;
he company improves it by building and
quipping the road, and engages in the car
ylng business thereon. Now. it is found
hat under this provision of the charter au-
hOrizing the company to fix its own rates.
he company is guilty of oppression; and
ne State exercises the right it had expressly
eserved, and alters this provision by fixing
ne rates to be charged. And now it is said
lat for the State to do what it has express
: reserved the right to do is violation of
,e understanding or contract between the
tate and the company.
In answer to Mr.. Curtis argument, that ,
is beyond the field of legislative power,
g claims that as the constitution permits
le Legislature to alter any charter that
revision is part of every charter granted.
nder the power of alteration it may
,act anything it could originally have in
uded in the charter. 1t has twice been
} declared by the Supreme Court.