Lexington weekly intelligencer. (Lexington, Mo.) 1871-1887, 1881-01-01

he specieus plea OF q railroad lawyer to
IN uniformed member of a legislature,
but will hardly. in the face OF repeated3
adiudications. add laurels to the bro
a publicist. HIS Dartmouth COY
case does not 60 to the root of the
!sr at all. 1t merely settles, y
that has NO analogy to the on
lion, that the property OF Z
is private property, and
are refuted BY decision asn
the United States ] krt in
cases directly in pei Ince.in
Mum vs.. Illinois. Waite.
in delivering the the court,
said:- ~
ssLookipg, u e common law from
whence came ach the constitution
protects, NJ private property 10
s6ected Eerest It ceases to be
JuRrs This was said by Lord
Chien more than two hundred
q I3eatise DE Portibus Maris.'
yeepted without objection as an
Iknt in the law of property ever
srty does become clothed with .
rest when used In y manner to make
6tic consequence and Affect the commu-
at large. When therefore, one devotes
property to . use In which the public has an
interest, he In eject grants to the public an in
terest in that use, and must submit to be con-
trollsd by the public tor the common good to
the extent of the intsrest he has thus created.
He may withdraw his grant by disseminating
m. h~h an 11nD - he rnAtRfoIna rho raA hR
must submit to the CONTROL"
Judge Waite then cites at length
from opinions Of Lord Hale, and others
covering cases Of wharingsrs. weighers.
wareheusemen, and dock companies. in
all OF which his rsa soning il supported;
and says Of these excerpts: -"We
have quoted thus largely the words Of
these eminent sxpounders Of the conn.,
mon law. because, ~ We think, We find
in them the principle which supports
the legislation We are now examining.
Ut Lord Hale it was once said BY a
learned American judgs:-'In England,
eve On rights OF prsrogative. they
scan his words with ~ much care as it
they had been found In Magma Charta,
and the meaning once ascsrtaiasd, they
Dc not trouble themselves to, search
any farther.'"
In Mobile W. Yuills, quoted in the
case now under consideration, the su-
preme court OF Alabama said :-s'Upon
the same principle 10 founded the con-
troll whlsh the Legislature has always
exercised In the establishment and reg
alation Of mills, ferries. bridges. turn-
pike reads aud other kindred subjects"
Judge Waite adds :-s.From the same
source comes the power to regulate the
charges Of common carriers. which was
done in England n long ago as the
third year of the reign Of William and
Mary" After citing numerous authori-
ties on this point tho chief justice says:-
"But .0s need not go further. Enough
has already been said to show that
when p~rivats property IS devoted to a
public use 1t is subject to public reg~-
lation." Here is Mr.. Curtis answer,
and it has the advantage ever that gen
tlsman's opinion Of being the law Of
the land. This case of Mum vs.. ILL
nois was q warehouse case, and not that
of q railroad. The case Of a railroad
could. Of course. have been much strong
or put, still, the court. in an elaborate
and very carefully considered opinion.
the reasoning of which is unassailable,
sustained the supreme court OF Illinois
In its judgment that the state had the
right to regulate warehouses. Incident
ally the states right to regulate rail
roads was also decided, but in order Il
be perfectly clear 1t may be best te
quote The court in cases directly in point
In Chicago, Burlington y Quincy
Railroad Company vs.. lswa. Chief Jus
tice Waite also rendered the decision
In the course Of 1t he said:
''This company IN the Transaction Of its bust
ness, has the same rights, and 10 subject to til
same control. - private individuals under tn
SAINT circumstances. Itmust carry when Gale
upon do 30, and can charge only . REASONABLE
sum fer the carriage. In the absence Of an
legislative regulation upon the subject, th
courts must decide for it, - they do tor privai
persons, when controversies arise. what Is req
sonable. But when the legislature steps in an
prsscribss . maximum Of charge, 1t operate
upon this corporation ths.same as 1t does upo
individuals engaged IN . similar business.
was within the power OF the company to ca
upon the legislature to 6x permanently tn
limit, and make 1t q part Of the charter; and
1t was refused, to abstain from building the ros
and establishing the contemplated business.
that had been dene, the charter might have pr,
ssntsd . contract against future legislative II
reference. But it was not; and the compar
invested its capital, relying upon the good fai
Of the people and the wisdom and lmpartiall
Of legislators for protection against wrong III
der the form OF legislative regulation
This answers fully Mr. Curtis ebje
tion that if the state q by q sing
= penny or fractisn of q penny redu,
freights below tho rates charged by Il
: road. it may reduce them SO low that tt
|. company car receive no INTEREST on l
Investment. The chief justice answe
: another objection. in the Same spinio
. . In these words:
SIT is a matter Of no importance that t
power of regulation now under considerati
. was not exercised for more than twenty yes
3 after this company wss organized. 4 power
: government which actually exists In not lost
= non-user. A good government never puts fol-
, Its Extraordinary powers. except under circul
u stances which require 1t. That government
y best which, while performing all its duties, i
h ~tsrierss the least with the lawful pursuits of
people,"
Mr.. Curtis says:-"And here it M
. be observed that If the railroads cha
+, cred by = state are public highways a
i, public property, they are public big
ways and public property OF the sta
!. which chartered them and within who
!, limits they exist. How, then. is congre
6 to legislats on the use Of the pub