Wood County reporter. [volume] (Grand Rapids [i.e. Wisconsin Rapids], Wis.) 1857-1923, 1874-06-25
TIE RAILWAY QUESTION.


Hon. A. Hyatt Smith, prominent James
vile lawyer, IN recent letter to the Industrial
Age has expressed his ''Yiews in reply TO
the opinion of Judge E. R. Hoar, on the Wis
consin Railway acts" from which the follow
ing is extracted:
Judge Hoar says:
The conclusions to which I have arrived are
these:
FTrst-Are these acts valid under the Constitution
of the United States and under that of Wisconsin?
have not been able TO decide that the second
named Of these statutes is in any respect unconsti
tutional and void. The provision that all railroads
shall be public highways Is one the exact meaning
and import Of which it is not easy to understand
That railroads highways IN the sense that their
uses are public and that taking land for their con
strucuon Is j1stiha bic exercise of the power of
eminent domain. is abundantlv settled by judicial
decisions-CLcott Is. The Supervisors, 16 Wallace.
676.
If no more than this is intended. the declaration
seems 10 be unimportant, and makes no change of
existing law.
1t Is 4 well-settled rule of jurisprudence
that if the language of an act of the Legisla-
ture can he so construed, by any fair interpre-
tatiOR OF its meaning, as to bring it within the
Constitution. it shall receive that interpreta-
ton by the courts and be held constitutional.
From Judge Hoar's statement of the question
it would seem, to common observer, that
the application Of this ruIe-and no man I'M
derstands is force better than he-should
have ended all doubts in the mind of the
Judge as TO The constitutionalitv Of the act
under examination. The Judge proceeds:
If, however, more is meant. and the statute in
tends new appropriation to public use. it hardly
needs 10 be stated that private property cannot be
taken for public use without COMPENSATION. No
compensation Is provided by the statute and the
property Of the corporation cannot thus be taken
from them without their consent The other pro-
visions OF tie statute do not seem to me to change
in any material effect the existing powers and oh
legations Of the railroad company, or are such as
fall within the clearly-reserved power Of Iegsla-
tive regulations
This mas the appearance Of creating a man
OF straw for the purpose of destructiOn-in
plain terms, an attempt to render obscure a
proposition in itself about which there cannot
be an honest doubt. : < 1t is clear
10 my mind that, on the Judges first state
ment Of the question, he believed the act con-
stitutiOual, and that the second paragraph is
only thrown in TO help out the idea SO indus
trIously nculcated by the press of this State
IN the interest of the railroad companies, that
these acts are blind and incomprehenslble rs
well as iInpracticabe.
That part of Mr.. HOar's opinion above
quoted IS supposed to relate to chapter 273 of
the Statutes of 1874, approved April y, 1874,
as this is the act which declares all railroads
public Hjq57rayS. The question as to whether
the Legislature had the right to make those
roads public highways in any broader sense
than they were so made by their charters, or
were 50 at the common law, will be met by
the views herein expressed as to the act of
March Il, 1874, and known as chapter 341 of
the laws Of 1874, in which the Legislature
does, beyond any question, assume the right
and power in its own discretion, to alter,
amend, or repeal these charters. Z
The second part Of Mr.. Hoar's opinion, in
which he treats of the act Of March II, 1874.
He says:
a-t4p- pf nj T7ebc
subject for determination. BY the several acts
which constitute the charter of the railroad COM
pany, the right Is conferred upon it 10 fix and
regulate lis rates of toll, fares and freight.
BY the stg5utc 81 March II, 1874, the Legislature
of Wisconsin assumes TO fix, by absolute and
arbitrary limit. the rates of passenger fares and
some classes Of freight, and TO delegate to COM
missioners the power to fix the rates upon other
classes OF freight. The right to exact tolls or
charge frei@hts was obviously granted in the char
ter rs consideration for the service which the
corporation assumed terender to the public The
charter contract between the State and the
corporation; and by the Constitution of WiscOn-
sin and the Constitution of the UnitedStates alike
the State cannot pass a law which impairs the
validity Of q contract.
The legislation in question is therefore clearly
Invalid. unless II can be maintained upon that
clause in the Constitution of Wisconsin which
serves 70 the Legislature the power to alter
peal all general or specialaws underwhich they
formed, ~ any time after their passage, Art. NJ,
sec. /.
This brings ia view the main question
Has the Legislature the constitutional power
10 AI.TEI. OK REPEAL these charters Had the
people Of the 5 late Of Wisconsin, in the exer-
else Of the sovereign power which rests with
them alone, SO far as the limits of the State
extend, 80 say, rs they do in the Constitution
Of the State, Art. HI, Sec. l, "that corpora
lions may be formed under general laws, but
shall not he created by special act, except
for municipal purposes, and in cases where,
in the Judgment OF the Legislature, the OBJ
jects Of the corporations cannot be attained
under the general laws. All general laws or
special acts enacted under the provisions of
this section may be altered or repealed by the
Legislature at any time after their passage"
This provision stood the test of the discus
sion Of two conventions and was adopted
venture to say, without a respectable dissent
inc minority among the people of the State;
for if a people ever were unanimous on any
one subject, the neOple Of Wisconsin were at
that time on the necessity Of holding absolute
contTO. Of all corporations granted by its Leg
islature. The people intended that the adop
ton of the Constitution should be the closing
scene in the contest between the corporations,
on the one hand and the people of Wisconsin
on the other, for supremacy. They were well
instructed in the history of all corporations.
They knew that corporations had been ag-
gressive, seeking to absorb the power and the
wealth of all nations. In this
temper the first Wisconsin convention
dSStlnpttU ana duOpGeu constitution or
which the present limitation was i'll substance
a part. No man then dare oppose that limita-
ton before the people any more than he
would now dare to advocate its repeal Its
principles and objects were very fully dis
cussed in both conventions; and the article as
ii nov stands was passed through the last
convention with but one dissenting vote,
and with the people no pro-
vision of the constitution was so popular
x X To recapitulate in few words, Q)it
is claimed that the people intended to reserve
full control Of these corporations including
the power exercised by the Legislature, in the
enactment of these laws; (2) this is proven
by the history of the times, the knowledge
of the evil to be overcome, and the plain and
strong language of the instrument. II this
was and is the true intent of the people, the
inquiry presents itself had they the right to
reserve this power, to be exercised by their
agents in Legislative Assembly convened
Thus the people of Wisconsin, when
they elected their delegates TO Madison, to
form the basis of a government dts funda-
mental law, had the most unlimited power
over this subject. They had the full power
and right, if deemed for their best interest to
say the legislature "shall grant no franchise"
to individual or corporation, and no earthly
power had any moral or legal right to say
nay: and they were near saying it. The PEG
pie, however, had the equal power and right
to say that the Legislature might grant fran
chiseS to corporations; and they also had the
same ample power to make any reservation
that 10 them might seem for the
benefit Of themselves or their descend
ants There was no contract to interfere.
They did say to all beggars for franchises,
g If YOU take a charter and franchise from
these orr servants and get it in a form we