The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1874-01-21

nom the TACT that railroads are chartered by the
State but Il 1, derived from the fact that railroads
recent case lOlcott VS.. The Supervision.
he Il nsa s States the saw nsr GSas
though constructed by private corporations and
owned by them are public highways. TINS has
been the doctrine OF nearly ali the courts ever
since such cOnveniences for passage and trans
portation have had any existence. Very early
the question arose whether q states right OF
eminent domain could be exercised by a private
corporation created Tor the purpose Of constructing
railroad Clearly 1t could not, unless taking
ing land Tor public use. The right OF eminent
domain nowhere Justines taking property for u
cepted that a State Legislature may authorize a
private corporation TO take land the constrac-
tion OF such 4 road. making compensation to
the owner. What else does this doctrine mean
ii not thar building railroad, though 1t he built
by private corporation, is an act done for pri-
waite user And the reason why for public uses
that such road Is highway whether made by the
government or by the agency OF corporate bodies,
or even by individuals when they obtain their
lower 10 construct IL from legislative grant. IL
would he useless TO cite the numerous decisions TO
this effect which have been made IN the state
courts. We may, however, refer to two or three,
wnicn exhibit not only the doctrine Itself, but the
reason upon which 1t rests Whether the use OF "A
railroad is public or private one depends in no
measure upon the question who constructed 1T or
VITO owns IT, 1t has never been cDn-
sidered matter OF any. Importance that
the road was butt by the agency OF
private corporation No matter VINO is the agent,
the junction performed Is that OF the State.
Though the ownership Is private the use is public.
80 lurnpikes, bridges. ferries and canals, although
made by individuals under public grants by
companies, are regarded as pubttcf juriS. The
right to exact tolls or charge reights is granted
tor service 10 the public. The owners may be
private companies, but they are compellabe to
permit the pubic 10 use their works IN the
manner in which such works can be used.
That all persons may not put their own cars upon
the road aud use their own motive power has no
bearing upon the question whether the road is
III
use OF which the Legislature is the exclusive
Judge And in the same case the Court says -
1.-The railroad Van, therefore, be controlled by
the state. Its use can be defined; its tolls and
rates for transportation may be limited" And,
ing commerce among tae states, which The State
can make concerning that which is completely in
nlated by limiting tolls and rates Tor transpOrta-
ton so may the former. IL would indeed be Il
strange anomaly IL line OF railroad, operating IN
but one state and engaged IN local commerce only,
should be held subject 10 legislative control In re-
spect to It's charges, while great through line.
crossing the territory Of many states and largely
engaged in commerce among them, capable OF be-
coming, II uncontrolled, vast and dangerous mon
opoy, should be held tree from such control. And
yet such is the inevitable consequence OF denial
OF the power OF Congress to limit charges upon
Interstate lines while granting to the states
their borders The regulation OF interstate COM
merce by State law Is, as Judge Redheld well says,
"slmply impossible, for the plain reason that the
laws of State can have no extra-terrltoral force
whatever. (Re0fed on Railways, VOL l., page
722.) in the case Of the State freight tax already
cIred in this report the Court held that tax upon
tne ton OF freight carried from one State to an
other was regulation OF commerce among the
states and, therefore, that no State can lay or
collect sucn tax. In delivering the opinion OF
the Court Mr. Justice Strong said:-
Then why not tax upon freight transported from
s se 10 rae iaao6 OF Of
Statesy Is not prescribing rule for the transporter
& the an n s
ca T he Is f Be to x Sr the
such to prescribe such raes The oropo
r ,ssd. exercise
more clearly when sSnsder th,. Ct law
the discharge q any % his dues It advocates
upon tbs subject, and made on behalf oft1c Chicago and
Under Charter or Without one are alike liable for any
abuse OF the public IN their eharses Ssee argument OF
for lsSs '''0''
And the authorities fully sustain this PROPOSE
ton. Carriers oil goods and passengers who set
themselves before the public as ready to carry Tor
all who apply become a kind of public officer and
owe to the public general duty. independent Of
any contract in the particular case. (Redteld
Carriers and Railroads, section 1921
In Thorpe VS.. Railroad Company, Vermont, 15c,
the supreme Court of that State says
There is also the general public power the State
by which persons and are 70 all kinds
feet right in the legislature To- do which question
BE- made far natural TeasSn; so6esrnsd
alarm that rs f r M m the 70 m e I a9
ways should be made serious question.
Mr. Parsons, in his work on contracts, vol. 2,
IT'S, distinctly recognizes the right to FIX by law
The rates to be taken by q common carrier when
he says:-"Where required by statute to make a
reasonable and equal charge against ALL ne 1.-THE
common carrierl cannot by bylaws or rules dis
cr1minate as 10 amounts or modes Of cOmpensa-
ton according to their occupation, but carry
the same amounts the same distance for the same
price Tor all persons.n And again, on page EOS, he
says compensation of common carriers sis some
times fixed by law, as for Incorporated companies,
me authorities upon the subject are numerous
anc uniform. aud they leave no doubt as to the
right tn limit by law the charges OF common car
riers to such as shall be reasonable; for they show
clearly that such law Is simply decaratory Of the
The English Parliament has repeatedly enacted
laws TO regulate tine rates to be charged by rail-
way and canal companies, and these laws have been
construed and enforced by the courts OF that
country IN many cases. 1t has been well said that
the English statutes were enacted to correct
abuses for which the common law, by the method
of its procedure, did not afford adequate remedies.
Is the authority Of Congress, wnen exercising
powers conferred upon It by the constitution.
not According to Chief Justice Marshall in GibbOn
Vs. ogden the power OF Congress IN the matter OF
regulating commerce among the States is plenary,
and certainly that OF Parliament can be no greater
1t will be observed that the question OF the
power OF Congress TO create or charter a corpora
ton to operate line OF commerce from state to
State and to exercise the right OF eminent domain
is not involved in the passage OF the bill reported.
IL Is however well settled by decisions of the Su
preme Court OF the United States that Congress
may charter corporation, which is a necessary
or proper instrument for carrying into effect any
OF the powers OF the general government. Osborn
VS.. United States Bank of Wheaton d Co.: McCu-
Tough VS.. Maryland, Wheaton, ALL In the latter
case the Court, by Chief Justice Marshall, said -
The power of creating corporation is never used
for its own sake, but Tor the purpose OF effectng
thing else. No sufficient reason is, therefore,
perceived why 1t may not pass as incidental to
those powers Which are expressly given, If 1t be
direct mode of executing them.o
IT. therefore, Congress should deem 1t necessary
in the exercise or rhe power expressly conferred,
to regulate commerce among the several states,
to charter lines of railroads or canals as chan
nels OF such commerce, It's power to do SO would
seem beyond question. Let US consider for q mo-
ment the consequences which must result from
denial Of this power. II it does not exist, why
may not any State refuse to permit any ADEQUATE
facilities l0r the passage OF the commerce OF other
States across its territory? II this power Is not IN