The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1879-12-24


nave made 1t easy to transfer such cases tC
the United States Supreme Court; and the
case between these two railroads was decided
as 1t had been in the Virginia case-that
the exclusive grant was contrary TO pub
nc policy. And Congress and the Supreme
Court have legislated and decided the Tel
egraph cases upon the same grounds.
| The Western Union Telegraph Company
have exclusive right TO place their wires
upon the rights of way of all railroads they
occupy, obtained, of course, from the rail
road companies. Congress has said, how
ever, this exclusive right given to railroads
was an easement, and not fee simple title,
and the exclusive grant by railroads to tele-
| graph companies, contrary to pub
lie policy" and, therefore, inexpedient and
| wrong.
This CONTRARY TO PUBLIC POLICY"
and 'inexpedient," has been the fayorite
/ peg upon which the United States Supreme
/ Court has hung its decisions whenever it
/ desired to veto any policy of the States, or,
/ United States, or upon questions where
| legislation of either was not clear and dis
tinct, and they desired for time being, to
! legjstdte for the best interest of the country
| The people of the State had been suf-
fering from "extortionate charges" and
unjust determinations, and the Barry
Bill was nothing more than a crude-a very
crude-one to bring the railroads to a sense
of right and justice. But, the Governor
overlooked all of these complaints, and
plants himself upon the Supreme Court
Dartmouth College decision, which gave
Mr.. Webster his great reputation as a law
yer, and has been followed in their decisions,
when there was no plausible manner of
avoiding it. 1t is true, he mentions the
State of Illinois, but overloOks or passes
over the action under their laws since the
adoption of the Constitution of 1870, with
out knowing what the result has been. OF
course, in State where there are SO many
railroads, with such diversified interests, ex-
animation or enquiry, if they had been
made, would have given the facts of the
case. That he may be advised, we will give
him the facts for future veto messages. The
State of Illinois, in 1870, held a Constitu
tiOnal Convention, a leading measure of
which was, to place tax of seven per cent.
on the gross earnings of the Illinois Central
Railroad and beyond Legislature control. When
the Convention met, like Georgia, recently,
through like Convention, it took the bull
by the horns,' and made a constitutional
provision that the Illinois Central Railroad
should Arrays pay seven per cent. on its
gross earnings to the State; and provided
further that 4 Board of three Railroad
Commissioners should be appointed to
make maximum tariffs for passengers, on all
railroads in the State. The Constitution
was ratified by the people by an overwhel-
ming majority, and the first Legislature that
convened after the adoption of the Consti- |
tuition, enacted that three railroad commits |
sioners should be appointed to make freight |
and passenger tariffs for all railroads in the |
State, and that all railroads failing to carry |
them out should be fined. The roads said !: |
''ttiS is IN riOLltiOH Of our charters, and zoe |
tcW not respect your LegiSjdtiOn." A case was
made up and carried to the Supreme Court |
of the State upon this issue. That court
decided that the legislation was I'M
constitutional; but intimated, extra
judicially, how the desired ends
could be attained. Finding the work
of three years valueless, and acting upon
the suggestion of the Supreme Court, the
Legislature, in 1913, took up the subject
again, and the law which went into effect
July l., 1874, is still the law of Illinois.
We know of no appeal having been made
to the Supreme Court of the State or of the
United States and the railroads are yield
ing obedience to the State laws. The con-
vention of Illinois took the position that
every interest should be subservent to the
Legislature under constitutional restriction,
and that no Legislature had ever any right
to bind the people except through the laws
and that, if laws had been enacted beyond
apparent reach, a succeeding One-even
after new constitution-were affected by
some common law principles which they
were bound to respect. In 1873, they there
fore enacted a law to remedy the de-
fects under the new constitutional moro
which declared what should constitute
ertortion on any prima facie evidence-such
as the charging the same, or a larger sum
for the carriage of any passenger, or, an
equal quantity of freight over a less, as
with greater, distance, in the same
no matter upon what portion of
the same road, and without regard to the
point of commencement; the charging of
higher rates as the terminal charges at one
point than another, or more to one person
than another at the same point for hauling
cars from the same point and for the same
purpose over an equal distance ON the same
road.
The act also provided, in terms, that cit
shall not constitute any excuse for discrim-
nation or extortion that it occurred at only
competing points" In addition, the rail-
road commissioners of the State were fur
Their directed to prepare schedules, or, tar
ifs, for the several roads, which they were
to change as might prove to be
expedient; and the charges fixed in the
schedules were iudicially held to be reason
able until decided otherwise by the verdict :
IF jury. The effect of that law was to
ay the whole burden of proof upon the
railroads; the schedules of the commits
iioners were not declared in themselves rea-
,onable, but were declared prima facie evil
lence of what was reasonable, and it de-
7olved upon the railroad to show what was
reasonable; and juries were authorized to
bring in verdicts against corporations upon
preponderance of evidence, end, in their !
Terdicts they could, within certain limits,
TX the penalty which was established upon
rising scale for each violation of the law :
This is a resume of the law, and it con-
aims all the LdlD of the question involved in
he exclusive and special charters in Missis-
ippi and other States, and is respectfully i,
eferred to the Governor of Mississippi for |
lis information.
His Excellency will have observed that :
n the above instances above cited the +
United States Court has repeatedly decided :
questions affected with a chartered and :
'ublic interest, since the Dartmouth Col :
eye case, adversely to his assumptions of =
he law deduced. To say that these decis- q
Ons do not rest upon the same principles of ;
aw that legislative prerogative to super
Use and fix the charges of freight when the
are practicing extortion at will,
o-wit the requirements of public policy, =
) to make distinction without difference. c
md, again, the Dartmouth College decis-
on, in this fast and moving age, has become =
ncient. At the time of its rendition, it :
nay have rested upon the solid foundation ),
f good reasoning, which, from changed i
Especially as applied to great :
abroad corporations, grown now beyond
he widest conception of the jurisprudence I
{ that day. are wholly wanting or have the =
mallest application. From time to time, !.
n the light of new reasons which grow up
nth the wants of the people, in the progress =
f the busy affairs of progressing civilization, :
Common Law Courts in England and !,
he United States, do modify and change
neient decisions that have lived longer
han the reason for them, with def q
rental hands, it is true, but firmly, to !;
onform to the present requirements of what :,
he law should be- The Instances we have
iven, and particularly, the Illinois laws We !,
ave given with more particularly, are the
authorities that the Dartmouth College
ecision, in 50 far as it is supposed to affect :
dssn,,,.nd Ind y