The Indiana State sentinel. [volume] (Indianapolis) 1868-1895, 1880-12-29
ruRIAw ArD THE RAILROADS.

n
three men, is equivalent to tax of si5,
100000 upon the agricultural products o
the West" and. so far as we are advised
the statement is not contradicted. 1t is thi:
question of exorbitant charges that ha
brought the railroad question into promi
nence before the public and before Congress
question which imperatively demands
consideration. Fortunately, it is likely
to have hearing. Some days age
the Sentinel published the views o.
Judge Black upon the rights of rail
roads and the rights of the public
Judge Black "took the ground that railroad
are public highways belonging to the State
and operated by corporations chartered foi
the purpose, and therefore subject TO the reg
ulation and control of the State so far as il
finds it for the interest of the people to reg
Hlate and control them. Though the Com
panies. aided by the States right o.
eminent domain, acquire the necessary
land from private owners, and pay fol
it. construct and equip the roads at theil
own expense, and operate them by the
use of their own capital, they do all thi;
through a franchise granted by the State
and have no absolute property in the high
ways that are authorized to build and to usC
in their business of transportation. They
act throughout as agents Of the State, which
may at any time resume possession of Its
own, having due regard to the equities in
volved, or which may exert its superior
authority to compel conduct of the bust.
ness in the hands of the Companies with
proper regard for the public interest" But
now comes another lawyer, Mr.. George
Ticl1nor Curtis, railroad attorney, who takes
exactly the opposite view of the case. The
New York Times states the case as follows
Mr.. Curtis takes the other extreme. He not
only treats the corporations as absolute owners Of
the railroads in the same sense as a manufacturer
owns his mill or a farmer his land, but he take.
the ground that their charters constitute con
tract with the State which it can not violate with
out running against one of the leading prohibit
tons of the Federal Constitution. If he stopped
here his doctrine could not be regarded as at al
startling. however much it might be questioned
But he goes to maintain that unless it is other
wise specified in the charter ITSELF or unless the
State has explicitly reserved to itself in its Consti
tuition the right to repeal modify it, this invio
liable contract gives the Companies the right
to make whatever charges they may see fit fol
their service, and to vary them at will.
According to this doctrine, they are under nc
obligation to regard any public right or interest.
They are simply carrying private business OF
their own aud dealing with their customers in
whatever way they may find most expedient or
profitable to themselves. They may make any
kind OF bargain. grant any sort of discrimina-
ton or favor. and exercise over the business OF
the people all the power involved in virtual
monopoly of transportation without other re-
straint than their own self-interest may impose.
In short. the State. in granting franchise for
building and operating q railroad brings into
being power to whose mercy its citizens are sub
ject. and has left itself authority TO regulate
or control it for their protection.
This doctrine is denounced by the Times
as monstrous-a doctrine that can not be
pubic law in any civilized country. That
it is not the law in this country is shown by
the decision of Chief Justice Waite in the
Illinois Granger case Of March /, 1871 The
question at issue was: HAS the State of
Illinois the Constitutional right to regulate
and limit the charges of grain elevators
worked in connection with railroads at Chi
cago?" And this led to the consideration of
the whole question of public. corporate and
private rights. The State Courts had de-
cided in favor of the public, and from this
decision the Companies appealed. The fol-
lowing extracts are to the point:
Looking to the common law, from whence
comes the rights which the Constitution protects?
We find that when private property is affected
with public interest 1t ceases to be juris privati
only. This was said by Lord Chief Justice Hale
than 200 years ago in his treatise DE Porti-
bus Maris, and has been accepted without objec.
ton as an essential elementin the law of prop
erty ever since. Property does become clothed
with apuOlic interest when used in manner to
make it of public consequence and affect the
munity at large. When, therefore, one devotes
his property to use in which the pnblic has an
interest he in effect grants the public an inter
est in that use. and must submit to be controlled
by the public for the common good to the extent
of the interest he has thus created. He may with
draw his grant by disseminating the use, but so
long as he maintains the use he must submit to
be controlled.
1T is insisted, however. that the owner of the
property Is entitled to a reasonable compensation
for its use, even though it be clothed with pub
lie interest and that what is reasonable is judi
cial and not Legislative question. As has
already. been shown. the practice has been other
wise. In countries where the common law pre-
walls. it has been customary from time immemo-
rial for the Legislature to declare what shall be
reasonable compensation under such circum-
stances; or, perhaps more properly speaking, to
fix a maximum beyond which any charge made
would be unreasonable. Undoubtedly, in mere
private contracts relating to matters in which the
public nave no interest, what is reasonable must
be ascertained judicially. But this is because
the Legislature has 40 control over such a con-
tract. So, too, in matters which do affect
the public interest, and to which legis-
latfye control may he exercised, II there
are no statutory regulations upon the
subject. the Courts must determine what Is
reasonable. Tae controlling act is the power to
regulate at all. If that esass, the night to estab-
lish the maximum Of charge as one OF the means
OF regulation is implied. In fact, the common
Law rule. which requires the ezarge to be reasona
bic. is itself regulation as tc price. without II
the owner could make the rates mt will and COM
pei the public to yield TO his terzs or forego the
use. But amere eommon-law regulation of trade
or business may be changed by statute person
has no property no vested interest In any rule OF
the common law. That is only one o. the forms
Of municipal law. and is no more sacred ban any
other. Rights of property which have been created
by the common law can not be taken away without
due process. but the Law itself rule of conduct.