Litchfield enquirer. [volume] (Litchfield, Conn.) 1829-current, 1880-12-23
Franchises not Propertya :

| The recent letter written the New Yori
Chamber of Commerce by Judge Black upor
| the legal status of the railroad company ex
cites much newspaper comment. The post
are well supported BY decisions of our highes
/ courts. He Insists that they are not, accu
rately speaking, holders of property but Of
franchises. merely:
They believe, or pretend to believe, thai
railways are the property of the companies au
thorized to run them, which is cardinal er
rer, aud the parent of much false argument
A public highway cannot be private property,
| and railroad laid out and built by the an
thOrity of tue State for the purposes of com
| merce is as much public highway as turn
| pike road canal or navigable river II ia the
! duty Of the State to promote intercourse and
trade BY making highways Of tiie hest sort
| through her territory. To this end she may
| take land aud materials, which is an exercise
| of The power of eminent domain. She can
| Luild railway at her own expense, using the
direct agency of her own officers, and after il
| is built she can make it free to all Corners oil
| reimburse the cost by special tax on individu
ais who have occasion To use it. She can del
| tgate the taking aud the taxing powers to q
| corporation or natural person: and that is
what she always does when she grants rail.
road Charter. But in either or any case the
road belongs to the State, and all the people
| have the right to use it upon compliance with
! tile necessary regulations and payment of the
| proper tax.
The corporations who have got into the
habit OF calling themselves the owners of the
| railroads have no proprietary right, title OF
| claim to the roads themselves, but a mere
| franchise annexed to and exercisabe thereon.
They are the agents of the State for the per
forinance OF public duty. If the franchise
be forfeited or surrendered, or if it expire by
effiux of time, the State takes possession of the
road and runs it herself or employs a new
agent. The company cannot keep the road
| any more than an outgoing collector of port
can appropriate to himself the custom house
where he did his official work. The State
having need for public highway at particu.
lar place, makes contract with corporation
to open and put it in condition to be used
and by way OF reimbursing the builders and
operators she authorizes tax upon those who
travel or carry merchandise over it. But this
tax must be reasonable, just, uniform pre-
scrlbed and fixed, so that every citizen may
know beforehand exactly how much he mus
pay, ana so that when he pays or tenders the
1
perfect right to the use of the road The
amount of the tax, toll or freight in any case
is not subject of bargain between the ship
4 per and the corporation, but thing to be set
tied. fixed and prescribed by public authority
Ii the company may charge what it pleases
then the road is not public highway the
public has NO rights in it at all, and the char
ter which authorizes the taking of land te
build it is unconstitutional and void.
These principles, Judge Black says. .'Art
discussed fully and carefully laid down in nu
merous decisions OF the courts. Being public
property it is absurd to say that the State ha.
no right to regulate them and control them il
the performance of their functions by sucl
laws as will prevent Partially, plumber anG
extOrtion. No free State can disarm itself Of
this power by any act of its executive. leglsla
tive or judicial officers They could as law.
fully sell the State out and out The fran
chises OF railroads are property, but their limit.
must be regulated by law and these. Limits
must not be exceeded. A charter doing 30 il
VOID. Legislation to bring fares and toll
within reasonable rates has been decided bl
the Supreme Court to be constitutional. Tbs
real, not the apparent cost of road must bt
the measure of the reasonabeness of rates.
Most of our Western roads were built witt
the proceeds of public lands granted medi
ately or Immediately by the United States t.
the several companies which now have them
in charge They did not really cost the stock
holders anything, and in some cases they 90,
lands worth great deal more than all ca
penses of making, stocking and running the
roads. The two companies between Omals
and San Francisco raised in cash out of gov
eminent bonds, lands and mortgages of theil
| franchises, four or five times as much as they
necessarily expended upon the roads. The
stockholders, without paying anything, put
the enormous surplus into their pockets
These roads, thus built at the public expense
and in some cases paid for by the public five
times over. are now claimed as the private
property OF the companies, and the right of the
public to use them as highways is utterly de-
med; nevertheless think the claim of these
| companies to take re reasonable tolls stand upon
the same foundation as that of companies
whose roads were built by the stockholders
| themselves at their own proper expense The
grant of the lands invested the grantees with q
title which could not be revoked if the con.
ditions of it were performed. ..- @
III railroad companies have the unlimited
| power they claim all industries are at theil
| mercy, says Judge Black mo such power
belongs to them legally, yet in many cases they
| have usurped it and abused it.
They boldly express their determination to
| charge as much as the traffic will bear that is
to say, they will take from the profits of every
mans business as much as can be taken with.
| out compelling him to quit it. 10 the aggre.
gate this amounts to the most enormous. op-
| pressive and unjust tax that ever was laid up
on the industry of any people under the sun
The irregularity with which this tax il laid
makes it still harder to bear Men go into a
business which may thrive at present rates and
will find themselves crushed by burdens I'M.
| expectedly thrown upon them after they gel
started" -. =4t5t l. = & .+
Judge Black goes at large into the subjec,
of determination, selecting some of the mos,
striking cases to illustrate his argument. He
says the railroads gointo every sort of bushes;
in their imperious way and they must be regu
lated so that they will be compelled to do the
duties they owe to the public faithfully ane
without determination or extortlon. The
States have the power to do this, but Congress
must regulate inter.state commerce, and TO dt
so must have supervision of rates and tolls
Judge Black concludes:
Doubtless you are right in the belief tina
| public opinion will be in favor of your move
ment Kehecting men cannot deny its justice
| But the influence of these great corporations
can hardly be calculated. They have method
of defense and offense which make then
almost invincible. You have referred to DOR
tions of their history which proved this. som,