New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1875-01-12
WISCONSIN Law FOR RAILROADS..

A CRITICISM or MR.. BROOKS ADAMss COMMENTS
UPON CHIEF-JUsrICE RYAN's DECI5I0N-THE
POTTER LAW VIRTUAL CoNFISCATIoN AND IL
LEGAL.
To the Editor Of The Tribune.
SIR: Mr.. Brooks Adams in q letter published
in your issue OF Dec. %, The Wisconsin Railroad
Law" refers to tho decision Of ChetJustice Ryan in
way that, say the least, is "peculiar" Helmples
that the ChlefJusco given his place for the pur
pose OF deciding this he has done, and then de-
clares that he is probably right in his decision Tae III
situation and the conclusion produce an unfortunate
confusion Of ideas; probably because MI Br0oKs All
ans was himself perfectly clear III his own IDEAS OF
law and right. Blackstone says that the Common Law
is the essence OF and although we can
not always apply that rule of judgmenC to the statute
law yet by an ordinary reference to constitutional law
with help Will arrive at conclusions, at least more
satisfactory than those indicated above.
The Potter Law" OF Wisconsin does not cover the
whole ground, or at least acts very partially, which
cannot DO good law when there two parties having
rights to be determined The original charters OF the
railroads in Wisconsin undoubtedly contracts
subec OF course under provision to alteration or
repeal; but not subject TO dcatIon. Tie most ele
mentary rule Of law is that grants shall be construed
most stringenty against the grantor; and TINS pro
vision Of alteration repeal" Is not therefore to be
c0n,. rued In effect permission or agreement thit
the Lssis2ture of Wisconsin might at any time repeal
H..
ery. Such a construction would shock every man pos
sessed OF the slightest common sense. The charters
gave the companies tho right to build roads and
charge such and such rates, aud as necessary
means created corporations capable OF acquiring ana
holding property within the State Of Wisconsin. AS an
other necessary consequence the companies had right
to use that property the indicated. and the
rent or profit incidental to that use followed the owner
ship This right sacred the right to the property
tsef aud there are abundant presidents holding that
no State destroy such rights by destroying the pro-
cess by which rights maintained. 1t follows OF
necessity that the railroads have been Induced by
their charters to invest in the soil within the State OF
Wisconsin that after-act can deprive them OF tais
property or their right 10 its enjoyment. Both belong
70 them-are acquired under the provisions OF their
charters and these provisions, though they include
reserved right of alteration and repeal, have also
restraint upon that clause OF the Constitution
which forbds the taking OF private property for public
use without duo compensation. The Potter Law, II
good annus this provision since. under the guise of
regulating passenger and freight rates 1t asserts prn
oipe OF conscation without compensaton-not for the
public use but for the OF that portion OF the pOpua
ton OF Wisconsin which happens TO reside near the
railroad regulated. 1t must not DC lost sight or that II
the Legislature alter repeal the charter in this
way. after having induced the companies TO build the
roads by the held out in the original charter by
lowering the terms OF carriage one-half, they may on
the same principle decree that the companies shall carry
freight and passengers I or nothing-which is simple
conscaon. This the supreme law OF the country does
permit for but the pressing necessity Of the re-
public and that under the restraining condition OF pay
ing for the property SO taken.
This same condition of the alteration and repeal is
attached even IL unexpressed TO that clause in the
charters OF the Wisconsin companies; and the true
meaning of that clause is that the Legislature has the
right alter and repeal payment OF damages caused
by such alteration and repeal Otherwise the contract
created by the charter would not only be unatera
but worse. It would be trap in which the unwary
would be caught and there is nothing in the constu
ton or In the decisions Of the Supreme Court which
encourage the idea that the rights OF property sub
mitted the vaclllatng within OF Legislature There
two sides TO the contract when the charters were
granted-ihe State which granted and the companies
which accepted-and no court Will so FAR stutry itself
as to decide that the latter agreed TO be bankruped at
the will of the other Well might the railroads excalm:
simply puts action principle which violates all the
ideas connected with contract law and has nothing TO
II but clause of reservation, one cannot SEQ
how ChiefJustice Ryan was so probably right III de-
Gliding for the plaintiff" People have been blinded by
dazzling effect OF the cdpedt eptor rule, not
ing that 1t Is the purchaser OF the franchise In this
instance who has paid for and acquired his right to
property and who cannot be deprived OF that right
which in this constitutes the whole value OF his
without receiving therefor due
without this the Legislature Is poweress 10 seize the
railroads the railroad receipts in part or IN toto as
any individual of its honorable members. Other rene
be found for high rates OF fare than forcible
reduction either by the individual or by the mass.
Nep- York, Dec. %. 1874 lib.