Wood County reporter. [volume] (Grand Rapids [i.e. Wisconsin Rapids], Wis.) 1857-1923, 1874-06-04

fail TO correct the wrong, no worse results
could ensue to the corporation than would
have followed from absolute repeal. But it is
hardly to be supposed that the Legislature
would fail TO respond to any application
founded in justice.
The people cannot fail to appreciate the ne
cessity of railroads to the business and indus
trial interests Of the State and to the conyen-
,enge and prosperity of all its citizens They
do not desire any unwilling or uncOmpensated
service from the railroads, nor will they con-
sent that the State should be placed in a condi-
ton of servitude to the corporations; but if
this limitation that the rates fixed by the Leg
isature must be reasonable exists at all, it
arises not from the reservation or its cOnstTuc-
ton, but rather out of the common law rule
that, in the absence of any legislative enact
ment on the subject, common carriers are
bourd to carry all freight and passengers
which are offered at reasonable rates, and can
not discriminate unjustly between shippers.
In my judgment 1t is impractcable to apply
this common law rule to railroad corporations
as a substitute for legislative control and
regulation. The use of railroads has in
creased the business of transporting freight
and passengers to immense proportions 1t
has brought about great and radical changes
in the commerce and business of the country.
1t has created new and diverted old channels
of trade; built cities and formed States.
The gigantic corporations controlling the
railroads of the country, with their great
wealth and influence, are practically placed
beyond the reach of the common law OBJ
legation, and this warrants the position that
legislative control ought to be and is put in
| the place of this common law liability OF
common carriers. Beside suit by the in
diyidUal to enforce the common law liability
settles nothing. No general rule can be es-
| tablished in a single suit, while such a suit
would involve an inquiry and determination
of the cost of the road and its equipment, the
| operating expenses, the amount and character
| of the business, and the whole detail Of the
condition, management, and relative cost OF
| everything connected with the road. When
| this is done, the reasonableness of the charge
| in every other instance remains open to be
| Irrigated at such an expenditure of
| time and money as to deter in
| dividuals from entering such a field of
| hopeless litigation. am led to the conclusion
| that the better view is that the judgment of
| the Legislature Is, by the reservation or power
| and the necessity of the case, the measure of
| the reasOnableuess of the regulations imposed.
| The corporation certainly cannot arbitrarily
| determine the question and, on the assump-
| ton that the rates are unreasonable, disregard
| the law The legislative act is conclusive that
| the rate is reasonable. The exercise of the
power is of itself an assertion of its justice
and of its necessity. The railroads cannot
question it. The courts may not review it,
for, by the agreement of the parties in accept
ing the charters under the reservation, the
whole subject is Withdrawn from the domain
Of Judicial decision, and remains only matter
for the legislative conscience.
And so with the objection that the provision
Of this law assumes control of the property of
the corporation, and depriyes them of its use
without making any compensation, and is,
therefore, in conflict with the Constitutions of
the State and the United States; as
these corporations have no natural exist
l,11r 1ubp J,I-
latiye enactments, their power to act, in
every particular, is derived from the State.
! Their capacity to make contracts, acquire and
| use property and to charge for its use, comes
from the State and is granted on such terms
and to such extent as the Legislature may
prescribe. The power of the State to grant is
| given by the Constitution, and coupled
| with this power is found in the
same fundamental law the authority
| to alter the act of incorporation as the
| Legislature may think the public interests
| demand. The rights and privileges conferred
| cannot be separated from the restrictions and
| duties imposed. The power to take toll cannot
| be distinguished from the duty to take only
| such as the Legislature shall establish. 1t is
| difficult to see how restricting these tolls
| within certain limits which the Legislature
| deems just is any more depriving the corpora
! tons of their property than 1t would be to re-
| peal their charters, and thus deprive them
| this latter power may cOnfessedly be eXer-
cised without making compensation. Wheth-
| er the State can compel the companies to op-
| crate their roads for such compensation as it
chooses to prescribe is another and different
question not involved in this discussion. The
only inquiry, while the companies are openly
violating the law by charging higher rates
than it allows, is as to the power of the Legis-
lature to prohibit them from charging
above certain fixed rates. If it shall be
made to appear that the companies
cannot operate their roads except at
a loss under the rate fixed by the law,
| the remedy is not in an attitude of open hos
tility to the law, but in an application to the
! Legislature for its modification. As suggest
ed i'll relation to the other objection, this is the
form which the Constitution has provided for
the determination of that question, and in ac-
| cepting the charters the companies assented
| to be governed and bound by the legislative
| sense of justice. This sense of justice will
undoubtedly coincide with the mutual inter
! est of the people and of the railroad com
| panies. These interests demand, with force
almost equal to the provisions of positive law,
! that remunerative rates shall be allowed for
| the services of these corporations, but, in the
| question of legal right, full power has been
| reserved by the Constitution.