The Bolivar bulletin. [volume] (Bolivar, Hardeman County, Tenn.) 1865-1888, 1881-03-03
State and the United States
In Answer TO Judge Black
d eEORGE TIoANoR -CtRTIs:

IN answer 20 q tatAB0 OA6cA'
BY GEORGE TIcKNOR C6ItTIs.
-
I'm former issue of the BULLETIN We
published Judge l;lack's letter relative tC
legislative control of freight and railroad
tariffs In jsstic t the other side Of tn,
question We publish Judge CurliS letter on
the subjcct, as followF:l
NEW YOI;k, Dccoml,er 10. 1880
My Dear Mr. Je'ren: a.sE
You ask If in the legal positions Of
Judge Black assumed in his letter Of Nrv- l6ti "a
the Chamber Of Commerce, respecting the relations
Of railroads to the States which have chartered
them, or to the United States. certainly do not.
understand my learned friSRd, for whsm have
great personal ard, 70 maintain that the railsos
pubic highways. the property Of the le pie, in
the sense and TO the same extent turnpike
or 4 common ROAD built at the public expense and
operated by public agents, Is public highway and
public property. understand him 10 have asserted
this over and again, in ieiy Of furHls and
that ii is the eIief foundation of his argument in
favor Of legislative control the contracts for
transportation which the railroads make with their
customers. he denies that the corporation have
any ownership in t1eir own property, or any pro-
prietary right, title claim to the rsads thenI-
selves; and asserts that they have nothing sbut
mere franchise annexed TO and exereisable there
on,' which must mean, according to his doctrine,
the franchise of being public agents for the man
asement of public property lie leaves to the cor
poratiOns nothing else. lie treats them as agents
Of the State foe the performances Of public duty
All that he eoaeedes o these public agents is the
ri ht to levy what he calls 'tax" upon those who
travel send merchandise over the road. lie even
goes far to assert that when the franchise ex
pires, the State takes possession Of the road and runs
IL herself or employs agent; which I under
stand to moan that not only the land, but the rails
and rolling stock. and all other property which the
eOrporatOrs have from their private means placed
and used upon that land having been ali the vi lie
public property continue to be public property in
the hands of the State. in the hands Of new
agents of the State. The company, says Judge
Black, cannot keep 'the road any more than an
outgoing collector of port appropriate him
self the custom-hOuse where he did his official
work" This must mean, if II means what is the
logical consequence Of Judge Blacks assertion that
the railroads public property without shred Of
private owAership-that every thing land rails,
rolling stock, tools, ETC., etc, purchased by private
funds all slOng public property, and that they
remain public property the 'sfrauchisc'' or
corporate right to be the agents Of that public
property expires. That Stale, IN the exercise of
its power Of eminent domain, may take or author
ize others to take the property Of corporation for
public use, paying reasonable Compensation there
for, have always understood; for corporations and
their franchises stand in this respect precisely on a
footing with individuals. But If Is a new doctrine
to me, that property, purchased with. the private
funds Of corporation, becomes public property,
because that property is common carrier, or be-
cause the State has for reasons Of public benefit,
authorized the corporation 10 acquire lands by an
=
therefor a just compensation. The fundamental
question is, whether the Judges assertion that
railroads are public highways and that the prop
| erty in them is pu lie property, is true Judge
Black is always logical; and ii his premises are
sound should his infereRces In regard to
the right Of the State control the use of its own
! property. But 1 deny his premises, and cOnse-
! quently reject his conclusions.
! remenber-for 1 am old enough to have wit
messed the origin aud growth of the whole railroad
system of this country, being already student at
law before any railroad had beeu pat into Operaticn
in Amerca-that the ideas Of the first projectors Of
the railroads in New England, and Of the public as
to the use that uld be made OF them, ex-
ceedingly crude. The earliest charters granted in
Massachusetts contain traces of an expectation that
/ the company would lay down tn rails, and that the
/ public would somehow drve their Own carriages
over them. In this imperfect conception of what
was to be done, the railroad It supposed would
be operated like chartered turnpike, the Propri-
etors having the right to take tolls OF those who
should drive their own carriages the road Ii
not until little later period after the English
! example was better Known that it y As seen here
that railroad could not be worked like chartered
turnpike. like public highway; THAI Il would
he inpracticable admit the carriages ef individ-
uals to pass the rails that the company which
built the road must operate 1t; ahd that individuals
of the public stand in the same relation &c
this spesi Of camnlon carrier that they occupy
in regard to all common carriers. and must maxi
contracts for the Transportation Of their persons
property, by aearrier who would OWE the vehicle
and the proPeIIing power, well as the road over
| which the vehicle was TO pass. The supposed anal
ogy. therefore, between the railroad and the ehar
tered turnpike, over whch any ono could drive hi,
own vehicle payment of the authorized toll, el
between the railroa ID aud the pnbIie highway, bull
and maintained at the public expsnse-an analogy
which msled some Of the earliest projectors OF rail-
roads-entireIy disappeared,= Railroads becaml
IN uttered companies, incorporated with power Il
acquire and hold property paid for by the private
funds OF I ineorpoTators, and to be used by then
in the same manner, and subject to the same, AR'
no other control of the State, other common car
riers of persons OF prop rty use their means o
transportation, and under the police authorit.
property which they exercise.
The idea that there is anything in the situation
chartered u.ilroSd, built and operated by privat
means, which makes Il PUhlie property, or Stat
property. and maKes the corporation public agent
finds no support in that great decision Of the Su
preue Court of the United States which first Is
tabIished the doctrine that private funds. raise
and contributed to endOw an ineorpozated institu
tiOn, do become public property, for the reasO
. Z "a
wish toenjOY its benefts In the Dartmouth Co
Iege case, two gr at doctrines Os constitutional Ia
were settled on foundations that have not yet bee
disturbed; first that grant OF . charter
incorporation Is contract between the soyereig
power aud the grantee, ali Of whose obligations Al
under the protection OF that clause Of FedeT
constitution which prohibits the passage by tl
State Of any law which impa;rs them; from whie
it follows that II state legislature has once gTautt
I 70 railroad corporation power 10 make its ov
& | contracts, without any reservation OF right
control the xcreise Of that power, IL cannot subs