Lexington weekly intelligencer. (Lexington, Mo.) 1871-1887, 1880-12-18
JUDGE BLACKS 7

JuUGE BLAUk
The special committee on railroad
transportation of the New York
chamber of commerce addressed 8
series of questions to prominent mel
in various parts of the country in
regard to the right of railroads to reg.
ulate prices, and respecting other
topics. raised in considering the sub
ject of Interstate commerce. The
most important reply thus far re-
ceived comes from Judge Jere Black.
His letter is given in full below:
YORK Pa, Nov. 16, 1Ss0.-Csm-
mittee on RailroadT transportation OF
the Now York Chamber of Com
merce-Gentlemeu You propose d
movement in favor of some legal
regulation which will compel railway
companies to perform their duty to
the public on proper terms.
l will answer yeur. questions as
directly as possible, without observ-
ing the order in which you put them.
You desire above all things to be
just.T The legally vested rights OF
railway companies. like other rights
Of property, are sacred, aud no vio-
lation ofthem comes within the scope
of ysur design.
But OIL this question railroad men
misunderstood their situation. They
believe, or pretend to believe, I b Al
railways are the property of thu com-
pauies authorisedSto run them, which
is a cardinal error, and the parent OF
much false argument. =
A public highway cannot be private
property, and a raiiroad laid~Uut and
built by the authority of the state
for the purposes of commerce is as
much a pubic highway as q turnpike
road, canal or navigabIe river.
1t Is the dutyz of the state to pro-
mote i~ntercoure aud trade by making
highways of the best sort through
her territory. To this end she may
take land and materials, which is IN
exercise of the power of eminent do
main. She can build a railway at her
own expense, using the direct agency
of her officers, and alter it's
built she can make it free to all
Corners, or reimburse the cost by
special tax on individuals whe have
occasion to use it. Sne can delegate
the taking and the taxing powers to
a corporation or natural person and
that Is what she always does when
she grants a railroad charter. But in
either or any case the road belongs to
the state, and all the people have Il
right to use il upon compliance with
necessary regulations aud payment
of the proper tax.
The corporations who have got III
10 the habit of calling themselves the
wner of the railroads have no
proprietary right, title or claim to
ihe roads themselves, but a mere fran-
chise annexed TO aud exercisabls
thereon. They are the agents of the
state for the performance of Il public
duty. If the franchise is forfeited er
surrendered, or if 1t expire by etiux
of time, the state takes possession OF
b road, and runs it herself, OF em-
piUys a new agent. Tne company
can not keep the road any more than
all outgoing collector of a port ca.
appropriate 10 himself the custom
house where he did his official work.
The state, having need for q public
highway at a particular place, makes
a contract with a corporation to open
aud put it in condition to be used
end, by way of rsimbursing the bull
ders and operators, she suthorizes a
tax upon those who travel or carry
merchandise over it.
But this tax must be reasonable,
just. uniform, prescribed, aud fixed
SO that every citizen may know be-
forehand exactly hew much he must
Fay, aud SO that when he pays or ten
ders the proper amount he will &C.
quire an absolute and perfect right to |
the use of the road. The amount of
the tax, toll, or freight in any case is
MOI a subject of bargain between the
shipper and the corporation, but a
thing to be settled, fixed and pre-
scrlbed by public authority. If the
company may charge what it pleases,
then the road is not q public highway;
the public has no right in it at all,
aud the charter which authorizes the
taking Of land tt build it is uncon.
stitutlOnal and void.
These principles were stated by
Judge Baldwin in BoLaparte against
b Camden and Amboy railroad
company Il Bald, Rep, 252). You
will find q more extended discussion
81 them by the supreme court of
Pennsylvania, i'll Casey against the
Erie aud Northeast railroad company
q Casey's Rep, 287). l do not think
they are opposed by any high author
ity, bat no doubt they have often
been overlooked in judicial decisions
aud forensic arguments.
The railroads being public prop
erty. in which all the people have
equal rights, and the companies that
run them being public agents, it is
absurd to say b a the state has no
right to regulate and control them in
d performance of their functions by
such laws as will prevent partiality,
PiundeT1 and extortion. This is a
power o. which no free state can dis
arm itself by any act Of it's Judicial,
legislative or executive officers.
They could as lawfully sell the state
out and out, IL deliver up the en-
tire population to sack and pillage.
But are not the franchises properly
III which the company a a vested
Yesl The uniform, reason
able rate of toll from all persons al Ike,
according to the use they make of the
road, Is a power that the state may
oestoW upon any person, natural or
But no lawful franchises
to Jake toll oil a public highway cali
exceed those limits. A charter that
beyond this is void.
those companies Will oppose any
effort to bring them down to q rea-
ohabl rate with the argument that
len reduction is a violation OF the
c)ltrect betw een them and the state.
Eut Oil the principle laid down bv
Judge Baldwin. In the case above
j charter is imperative
authorizes j maximum of toll
Or fare 20 high that the company is
aoie, without exceeding it, TO ex-
ciude the people from using their
0 wn road /; in the granger cases from
Iowa aud Wisconsin the bargain was
the companies might fix their
own rates. But the supreme court
OF tie United States held that a sub.
sequent law to restrain them within s
limits was no violation of
original contract. This principle {
TO q company whose maxi |
nun rate is unreasousbly high, sa-
such a rate is unreasou-
ably high, because such a rate IS
practically the same thing as no limi-
tatiou 1T all. y.
The conclusion that all the railroad
IN the country NAV be Z,
constltutionally restrained to rea- I
'onable and just charges is mol merely &
1rawn from the fact that railroads are
public highways. If they owned c