The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1879-07-16
UNCONSTITUTIONAL POWER
OF THE LEGISLATURE TO SU
PERVISE RAILROADS.
Letter from W. II. Hardy, of Lauder
dale.

Leaehman, Joseph Baum, l.. e Eison, JONI
W. Smith, 4. q. Horn, l. X. Latham ) r
Casteel. and Others:
GENTLEMEN: Your very fisttering note OF tbs
4th inst. asking my opinion in writing, upon
the Constitutional power of the Legislature Il
supervise the Railroad corporations III the Stat,
50 rs To control regulate their rates o
charges: for transporting freight, etc, is re
D eeived.
The fact that introduced a resolution upon
the subject in the late mass meeting, and thai
such right is questioned, and in Difference Il
? Your wishes gladly avail myself of the opPor-
tunity to give the authority and argument
, upon which base the resolution in question.
Thar the Legislature has the constitutional
right 10 regulate the tariff of charges made 10y
Railroad companies for passengers transported
upon their lines, there Is in my mind, not the
shadow of a doubt.
This right rest upon the well established doe
trine, that when private property is affected
with public interest, it ceases TO be jerts pri-
raj only
This doctrine was announced by Lord Chief
Justice Hale, more than two centuries ago, in
his treatise DE Portibus Msris," and the Su-
preme Court OF the United States in the case
Mum ct al '. The people, decided at the DC
tober term 1876, say that lit has been accepted,
without objection, an essential element in the
law OF property ever since"
Property does become clothed with public
interest when used in manner to make il Of
public consequence and affect the community
AT large
Where therefore, dcvotes his property To
to a use in which the public has an interest, he
in effect, grants to the public an interest in thar
Z lSA 4
public for the common good to the extent OF
/ that interest thus created lie may withdraw
his grant by disseminating the use but 50 long
/ as he maintains the use, he must submit to
control
/ We might safely rest the question here on this
high authority, since it is not denied and cannot
be denied that the public have an interest a
very great interest, in the operation Of the
railroads OF the country. But, rs the question
Is comparatively a one in this STAT. ttho'
the principle is not, | propose to pursue it
further
In the ease above quoted Chief Justice Waite
delivered the opinion OF the Court, ana make
the following quotation directly in point:
" When one becomes member Of society he
necessarily gives up some rights or privileges.
which, as an individual not affected by his re-
Lttions to others, he might retain. \ body pol
lite is a social compact, by which the whole peo-
pie covenants with each citizen, and each citi-
zen with the whole people, that all shall be govern
ed by certain laws forthecommon good. This does
not confer power upon the whole people over
rights which arepurely and exclusively private;
but il does authorize the establishment of laws re-
quirng each citizon to conduct himself and so
use his own property not unnecessarily to
injure another. This is the very essence of gov
eminent. From this source comes the police
powers which was said by Chief Justice fancy,
in the License eases, in ) How. 5S3, care moth
ing more or less than the powers ofGovernment
/ inherent in every Sovereignty, that is to say,
the power to govern men and things. Under
these powers the government regulates the
conduct of its citizens, one towards another
and the manner in which each shall use his own
property, when such regulation becomes meces-
sary for the public good. In this exercise il
has been customary in England, from time
immemofial, and in this country ffom its first
colonization "a re9,state Jcrts common carriers,
h0ehh"en bakers, millers, wharfngers, inn-keep-
ers, &c, and in doing to fr a maximum Of
charge to be n,dde for services rej,dered accom-
modatioRs furnished. and articles sold.''
This is the language of the Supreme Court of
question.
refer to Chicago, Burlington 4 Quincy r.
r., V. Cuts el al, Chicago, Milwaukee & St
Paul r r, v. Ackley ct al Winona & ST
Peter r.. r., V. Blake ct al. known as the
Grange cases decided by the Supreme Court of
the L. S. in favor of the right. &c L. j., y
Al.
As far back 1871, the Supreme Court of
Alabama, in well considered ease held that
the Legislature had the right to reelate the use
of private property affected with public in
terest.
Mobile V. Yauille, 3 Ala, r. p 40.
This was upon the copstitutionality Of law !
authorizing the city authorities of Mobile to I
fix the weight and price of bread They held
it to be constitutional.
But We not without ample authority in
our own State, running back to the very or
ganization of the State. As far back as 1922
the Legislature of this State exercised the right
to control the charges of inns and taverns, and
this law was in force up 20 1871. See Code of
1875, p. 1915. BY this law the Board of Police
fixed the rates to be charged both man and
beast, and there was forfeiture OF ten dollars
for every offence committed in charging more
than the rate allowed.
So by law 3,o,c the toll which ever miller in
the oldtt, SIiHuIIS Tor Int puDllc charge
Is fixed by law-"eGe eigth FOR meal, and one
twelfth for hOminy malt" See code OF 1871
section 1910 This has been the law of this
State over half century.
So also the nGrimum of charge for geiohinf
cotton is fixed by law. See Acts of 1876 n NJ
Even the very draws that haul lne trefgbts
and the haC ln.en that transport the passengers ,
from the Railroad depots limited in their |
charges by law
Is it not absurd to hold that the Railroads :
deriving all their rights and privileges from i,
the people, conferred upon them through their
charters, may charge what the choose for bring a
ing II barrel OF flour or cask of meat to Meri- ;
han, but the poor draymen, who carries it from
he tram, has no such right, but can only (
charge what the claw allows and no more
And yet no one doubts for a moment either -
ne right or wisdom OF controlling by law the n
'harges Gf all drays and carts that haul for the l.
public.
If, therefore, the Legislature can limit tho
ate oi charges to be made by hotels, inns. and
ayerns and the toll to be charged II n,iiiers I r
md the price OF drayase ana expressage to be
harged bV draws, carts hacks &c. and can f., ,
he price and weights of bread why can it MOI =
egulate the charges of railroads, many of which
we're buit III measure by the bounty of the a
'esople bestowed in the way Of lands, and all {
feeted with the gravest public interest?
1t is claimed, however, that the owner of
property IS entitled to reasonable compensation n
or its use, and that reasonable compensation is Il
Judicial and not Legislative question =
But the Supreme Court of the United States "
n the case above quoted say that "il countries 1,
There the common law prevails il has beep :
customary for the Legislature to declare what "
hall be reasonable compensation under such ~
or perhaps more properly speak =,
NJ, to fix maximum beyond which any charge \
lade would be unreasonable" =,
But it is claimed that where the charter con- %'
FRS the right upon the company to fix ite own
lrih OF charges that i te4Gr.es a rested riqLt
-hieh the Legislature cannot control
There might be somethin. in this objection ;f
ne Legislature gave the company the sole and +
tctasire right to fix the charges but in ne ease -
hieh L have examined, has the Legislature
onis[Fed s9eh fk q light cite the single ell
Section II Of their charter is in these words ~
That 1t shall be h'cfid for the company hereby vi
ld receive the toll and charges. &c" 81
ms merely makes it lawful" for the compa-