Lancaster daily intelligencer. [volume] (Lancaster, Pa.) 1864-1928, 1880-12-18
Lanraster fsltelLgenrer.
SATURDAY EVENING. DEC. 10. 1890.
Railroad HIGHWAYS.


question, having been employed to do SO |
by the Erie railroad company and his
argument is said to be held by railroad
men to be very strong and convincing.
That is natural: Looked ut with other
eyes it seems very weak. Judge Black
has a great advantage over Judge Curtis
in claiming the ear Of the country for
his argument, not only in the fact that
he has given it without reward, but be-
cause it is but restatement of the posi-
ticn taken by him in 1856, in delivering
the opinion of the supreme court of
Pennsylvania in the case of the Erie 4
Northeast railroad company against
Casey, reported in ? Casey. 2s7. Judge
Curtis, in expressing surprise at
the sentiments of Judge Blacks present
deliverance simply shows his small ac
quain:ance with the declared law OF
PENNSYLVANIA, for there is really
nothing said by Judge Black today
which ie did hot say from the bench in
1856.
We do not, either, understand that at
any time he has said all that Judge
Curtis understands him now to say. He
has not said, = that everything, land,
rails, rolling stock, tools, &C., purchased
by private funds, are all along public
property, and that they remain public
pr0pert, when the franchise or corporate
right 20 he the agents of that public
property expires" What he has said is
that Il railroad corporation does not own
the highway which the slate has author
lied it TO build upon land taken under
the right of eminent domain. That
highway belongs to the state, and the
corporation using it OWLS only the fran
chise or right to use it under the law
cOnfcrriHg il. which defines the cCn-
tract between the state and the railroad
company.
The Erie 4 Northeast railroad COM
piny had clause in its charter declar-
ing that I" if the said company abuse or
misuse amy of the privileges hereby
granted, the Legislature may resume the
right: granted to the said company"
The company did misuse its privilege
and the Legislature repealed its charter.
The company insisted that this was i'm
properly done, and that furthermore the
repeal was unconstitutional, as it was Il
conliscation of its property. Upon this
last point Judge Black, delivering the
opinion of the supreme court, said
II this be true, the in junction ought to
bc awarded for no legislature can do such
4 thing under O,lr constitution. When 4
corporation is dissolved by Il repeal Of its
charter, the csislature may appoint or a,l-
thorizc the governor to appoint \ person
to take charge of its assets for the use OF
the creditors and stockholders !; and this is
not coniiScatiun any more than it is confis-
cation to appoint an administrator to 4
dead man or !! committee for 4 lunatic.
But money, or goods or lands which are
or were the private property Of Il delunct
corporation cannot be arbitrarily seized lfor
the use OF tic state without compensation
paid or provided for. This act, however,
takes nothing but the road. Is that pri-
vatc property? Certainly not. 1t is pub
lie highway s.lcmnly devoted by law to
the public use. When the lands were
taken to build it Oh they We're taken for
been taken ut all. 1t is true the plain
tiffs had :, right to take tolls from
all who travelled Or carried freight on
it, according to certain rates fixed in the
charter. but that was 4 mere franchise Il
privilege Il rived entirely from the charter.
and it was gone when the charter was re-
pealed. The state may grant to corpor-
alton, or t. an individual. the franchise o:
taking tolls on any highway opened or to
be opened, whether it lIc Il railroad or
river, canal Or bridge, turnpike or common
road. When the franchise ceases by its Ow n
limitation, by forfeiture or by repeal,
the highway is thrown back on the hands
of the state, and it becomes her duty as
the sovereign guardian OF the public rights
and interests to take care o: it. She may
renew the franchise. give it to some other
person, exercise it herself, or declare the
highway open and free to all people. Ii
the railway itself was the private prop
crty of the stockholders, then it
remains theirs and they may use
it without 4 charter as other people
use their Own-run it Oh their own account
charge what tolls they plcase-close it
or open it when they think propcr-disre-
gard every interest except their own.
The repeal of charters on such terms
NOuIi DC CVutlCa w SkGIS CpIH-
pany in the state ; for it would have no
effect but to emanci'ate them from the
control of law, and convert their limited
privileges into broad. unbouIded license.
On this principle, a corporation might be
rewarded, but never punished, for miscon-
duct. Repeal Of its charter, instead o:
bringing it to Il shameful end, would put
"length of days in its right hand. and in
its left hand riches and honor" But it
is not SO. Railroads made by the author
ity of the commonwealth upon land taken
under lier right of eminent domain, and
established by her laws rs thorOushfaresfor
the commerce that passes through her bor
ders, are her highways. No corporation
has any property in them, though corpora
tions may have franchises annexed to and
exercisable within them.
Justices Lowrie and Knox agreed will.
Judge Black, Justice Woodward and
Chief Justice Lewis dissenting. The
railroad company afterwards amended
its bill of complaint. and the case
again came before the court. The point
as to cOlliscation having been further
dwe't upon in the argument. Judge
Black said in the opinion:
Railroads built under the authority of
law for the general purposes Of COM
nercc are public highways. On this plin-
ciple alone we decided that municipal sub
scriptiOns were valid. On this principle
alone can land and material he seized to
make them. On this principle alone can
the laws be justified which limit the tolls
unon them, On This nrincinln slonn h,vo