The Bolivar bulletin. [volume] (Bolivar, Hardeman County, Tenn.) 1865-1888, 1881-03-03

q
! IS no possible process Of highway robbery by
which they can get hold Of it. They Inny destroy
its capacity to pay dividends, hut when they have
made it insolvent, the poor remnants mus he dis
trbuted to its lawful owners their creditors.
There is proposition in Judge Blnck's letter
which, il may be safely predicted, viii be estaf-
lished. 1t rs, If I understand him, that a State
charter which authorizes corporation to take Ia..d
for a railroad, would be unconstitutional and void
if 1t leaves the company hx its own charges ior
the Of the road. His language is, "If the com
pany may charge what it phases, then the road Is
MT public highway the public has rights in it
at ALL and the charter Which authorizes the taking
of land to build it is Unconstitutional and void"
wonder what sort of State constitution it would be
under which this amazing proposition could be true.
1t would have TO be constitution which, in grant
ing to the Legislature authority to exercise and
delegate tho power which is called the eminent
domain, would impose special restriction and
limitation that the power shall never he exercised
in ayor Of any grantee Of the power, unless that
gssntee sffpsriates that the Legislature may limit
e charges which ne is To make for the Of the
land that he is authorized to take. As matter Of
bargain and contract, the grantee may make such
stipulation, and the Legislature may see fit to re-
quire it. But unless the State constitution ex-
pressy commands the Legislature to require that
stipulation, charter which does not require it is
perfectly valid grant of the right to take the land
because it Is in perfect consistency with the uor-
ity which is exercised and allowed be exercised
by the legislature In most of our State cOnstitu-
tions there is express delegation of the power Of
eminent domain to the Legislature. there is a re-
straining clause which prohibits the king of pr-
vate property for public without just eompen-
sutton But sube to this prohibition, the IegiSla-
ture is presumed to hold and exercise for the State
the States power take Land for public use and to
hold the whole of it. 1t may annex such conditions
as it peases besides requiring pay ayment, and it may
annex none other 50 long it requires that. In
either case its grant delegation Of the power to
a corporation is a valid grant Perhaps my very
and able friend would say that 1t is not tax
lug for public use unless the grantee Of the power
is made 10 agree that the State shall regulate Il
charges for the use of the land taken. But the
practice of our States and the hole of
judicial DECISIONS establish the principle that it is
for the Legislature TO determine what is public
use, and that the consideration wEleh the State
ceves for granting authority 10 take the land b 20
be found. and found only, in fhe public benSei
which win flow from the which the corporation
proposes TO make Of it. Whether the State shall OF
shall not impose a condition that the corporation
shall charge only much for the privilege of tEav
cling its road, has nothing 10 do with the ques
tion of public use. That is determined when the
right to take the land is granted, and the grant is
equally goud whether the corporation Is left free TO
make its charges or is put under restriction.
LIDO not observe that Judge Black has pointed out
any satisfactory mode in which Congress is to legs
late upon the rat charged by railroads doing an
Interstate business Ny own view Of the power
Of Congress TO regulate commerce between the sew
eral States would not lead TO the opinion that
such legislation would be regulation OF commerce,
such suppose to i,c included in that power. l
am not yet prepared to admit that that power in
cudes Legislative authority prescribe what may
be charged for carrying bale of merchandise from
New York To Chicago what may be charged for
bringing busheI of wheat from Chicago to New |
York 1t is not easy to define all that the CONNER
ral power of Congress embraces but II is not Gii
cut il some cases see what it does not elnbia ace.
If sell n bill OF exchange San Francisco, the
transaction is certainly transaction of Interstate
commerce; bat do not know that it follows a
necessary consequence that Congress prescribe
what may charge the purchaser Of the bill, as u
compensation for doing the business of placing his
funds in San Francisco. All that say nov Is,
if were manager of a railroad which makes con-
tracts for the carriage of merchandise from one
State into another, that should wish, before as
sented to have my contracts regulated by Congress,
TO he better assured than present, that Con-
gress has the power to regulate them. The best
general description Of the commercial power of Con-
-iven by M Justice Field, in delivering the
ilnous opinion of the Court iu Railroad Conpany
Richmond, 10 Wallace, $50. ''The power regulate
commerce among the several States vested ia
Congress in order secure equality and freedom, in
commercial intercourse against dScTiH,g mating STATE
Eegtsirfioa; it never intended that the power
should be exercised to interfere with private
C ntracts designed at the time they made
TO create impediments TO such intercourse" That
=. 80 Sc
road companies exclusive right to carry Iner-
chandise through the State for delivery in another
State the law would undoubtedly be declared void,
because it would be obstruction to the freedom
Of such commerce But If State leaves all the car
riers OF such commerce within and through her
limits free to engage in that business, upon just
such terms as they think they can afford, know
not how it can be claimed that the contracts create
any impeachment to the freedom OF Interstate
commercial intercourse. What enc carrier charges,
another may see fit not charge; and If agree
ment is made among al the carriers to make the
same charges, or to divide their earnings, do not
sec how such arrangements be obnoxious to the
complaint that thoy impede the freedom of inter-
State intercourse unless go the length of saying
that to charge anything for such service is such an
inpediment. The expedieney or the commercial
effect of conventional rate, agreed upon between
all the carriers is business question which aIa
not competent discuss But in legal point II
view, it is impossible in my opinion to maintain
that II is an impediment to the freedom of CONNER
ciaI intercourse among the several states. Judge
Black maintains that the rates must be reasonable
and just But as he rests the Legislative power to
determine what is reasonable and just upon tine pc
/ IN that tho railroads public highways and
public property, he assumes basis Of the legiAla
tive power foundation that should be establishes
by something more than assertion. And here il
may be observed. that q the railroads chartered by
State are public highways and public property,
they are public Highways ard public prO2s-ty Of
the State which chartered them and wfthta whose
limits they exist How then is Congress 70 leslate
on the use ofthe public property of q Stase7 Does
the fact that i railroad, chartered by State, car
ries merchandise from or through that Stale into
another make it also public property Of the United
States? And if in order TO get legislative power
to fix the rates for the carriage Of merchandise ii
is necessary to consider the railroad as a public
highway and public property, must it not be re-
gnrled as belonging to the United States in order
that the legislative power Of the United States may
find 8 basis for its accion Of the same nature as
that which is rested the legislative power Of the
Statee The power of the State to regulate its do
nestle commerce is extensive as the power OF
Congress to regulate interstate Commerce. What
one may do, in its own sphere the other may do In
Us sphere. Neither Of thcm in my opinion, find
any foundation in the assertion that railroads are
| public highways and public property. in the sense
of debating the terms on which they may be used,
or Of prescribing the contracts which may be made
with customers Nor is the ease helped by changing
the ground, and treating the railroads as eSnlmon
carriers; for in that capacity the whole question
turns upon their chartered rights If their charters
/ bestow On them the right TO make their con-
tracts Of affreightlnent and there is reseTv- d