The Sunday herald. [volume] (Washington [D.C.]) 1866-1887, 1880-12-05

" THE STA TIE AND TIE RAIL VA vs."
JuDGR JEREMIAH S. BLACK has published
the clearest statement that has yet been made
of the relations of the railways to the public.
He lays down the broad principle that:
pnblic highway cannot lie private property, and a
railroad laid out and built by the authority of tho
State for the purposes OF commerces much public
highway turnpike road, canal, navigable river
It is the duty OF the State promote Intercourse and
trade by making highways OF the best sort through
her territory. To this end shc may take land and
materials, which is exercise of the power of emf
nent domain. She can build \ railway at her
expense, using the direct agency of her own oicers
and after 1t is built she make all coers
reimburse the cost by special individuals who
have occasion to 1t. Sho delegate the taking
and the taxing powers TO corporation or natural
person; and that is what she always does when she
grants railroad charter But in either or any case
the railroad belongs to the Stats and all the people
have right to use 1t upon compliance with the
essary regulations and payment OF the proper taI.
The corporations who have got Into the habit OF call
Ing themselves the owners of the railroads have no
proprietary right title, claim to the roads them
selves but franchise annexed to and eIercisa-
BILE thereon They the agents OF the State for the
performance Of public duty. II the franchise be
forfeited or surrendered, 'r II 1t expire by eiux OF
time the State takes possession of tho road and
II herself or employs agent. The COMPANY can
not keep tho road any than outgoing collector
Of port appropriate to himself the custom house
where he did his Official work. The State having need
for public highway at = particular place. makes q
contract with corporation to open and ut 1t in con-
dition 10 bs used and by way Of reimbursing the
builders and operators she authorizes tax upon those
who travel or carry merchandise II. But this tax
must be reasonable, Just, uniform, prescribed, and
fixed, so that every citizen may know beforehand
actly how much lie must pay, and that when lie
pays or tenders the proper amount he viii acquire an
absolute and perfect right ''to the OF the road
The amount Of the tax, toll, freight any case is
not subject OF bargain between the shipper and the
corporation but thing to be settled, fixed. and pre-
scribed by public authority. II tho company may
charge what 1t pleases then the road is not n public
highway; The public has rights in IL at ALL and the
charter which authorizes the taking of land build
1t is unconstitutional and void.
This masterly and exhaustive opinion
opens the greatest OF all those political ques-
tions which will occupy the public mud in
America for the next half century, and which
will test whether We really do after all pos
sess the best form of government. Monarchi-
cal and aristocratc England and Germany
have already proved that with them the
State can control her highways. Republican
America has not yet displayed the sal4
power. The best thing the Democrats can
do with the little time left them in Congress
is to follow up the Thurman acts by dis
tinct legislative declaration of the principle
formulated by Judge Black.