Omaha daily bee., 1881-06-16
Not an Open Question.

In a recent number of The North
American Review, Mr.. George Tick.
nor Curtis, as the paid advocate OF
the railroad corporations, was per
mitted to present such arguments rs
his ingenuity could frame in support
of the doctrine that the roads and
franchises are the absolute property
of the corporations, and that they
have the right to regulate charges fol
service and methods of business with
out restraint from the state, unless
the latter explicitly reserved to itself
the right to interfere when their
charters were granted. The gist OF
his argument was that the state, in
granting charters to railroad corpora,
tions, with the privilege of charging
underlined tolls for carrying pas,
sengers andmerchandise, made a con-
tract, the obligation of which cannot
be impaired by subsequent legislation.
We do not care to raise any inquiry
as to the ethical or professional pro.
priety of Mr.. Curtis's conduct in EN-.
ploying his talents for pay in an at
tempt to make out a case for the
extreme ~pretensions of the railroad
companies, under the guise of dis.
cussing as a jurist n question of great
public Importance; but we do pre-.
sumo to maintain that the position he
took in his Review article is not sus,
tanned by any respectable body of lie,
gal opinion. 1t has against it all the
foundation principles of public law
and all juridical authority relating to
the subject.
But the legal aspect of the railroad
question is IL that few understand
or feel an interest in. The number Of
persons who have made a thorough
study of it, unless in a strictly pro
fessional way, is very small, and tn,
number who + disposed to make an,
such study is scarcely larger. Those
who do care for discussions relating t.
tho fundamental principles of law af,
fecting railroads and their relation tc
the state probably read Mr.. Curtis
sophistical argument, and the same
persons will take interest in an article
in the June number of the periodical in
whichitappeareds setting forth the oppo.
site doctrine. The writer of this article
is Mr., j. M. Mason, a lawyer of con.
siderable local repute in West Virginia,
who appears to have had occasion tt
give the subject a thorough ~investlga,
ton, He shows how and to what ex,
tent the ancient principles of law IN
regard to public highways and com,
mon carriers, the power of eminent do.
main, and the franchise of charging
tolls affect the modern railway, and
makes perfectly clear the logical basi,
and the legal sanction of the right OF
the state to regulate their charges il
accordance with the higher and wider
interests of the community.
But while all this is interesting to /
few students of the subject, il
touches "a side of the railroad question
for which the people at large car,
little. More than that, it is putting
IN controversy, or treating as if they
were in controversy, questions thaI
have long been settled. We have M
doubt of the soundness of Mr.. Mas
on's conclusions, but they are thor
oughly established, not only as
matter of argument, but az a matter
of Jurisprudence. The right of tn,
state to regulate the action of railroad
corporations in matters affecting tn,
public interest is not really open Il
question, whatever their paid attor,
neys, like Mr.. Curtis, may pretend.