The clarion. [volume] (Jackson, Miss.) 1883-1888, 1884-05-28
RAILROAD SUPERVISION.

RAILROAD SUPERVISION.
The opinion of Chancellor Peyton
which we publish to-day, like that of
Judge Hill, does not meet the require
ments Of the occasion, and, for that
reason. will be disappointment to many
of the friends of the distinguished jurist.
We do not desire to be understood as
criticising the opinion simply because it
is not in harmony with the views we
hold on the subject discussed; but We
criticise it mainly because it is as I'M
satisfactory to the friends as to the oppo-
nents of supervision. We know that
there are many who will never look
beyond the decree entered to ascertain
whether the reasons given furnish
assuring support for the conclusions
reached. For these, whether with US or
opposed to US, we do not write; but there
is large class of citizens, lawyers and
laymen, who are eagerly looking for a
judicial settlement of the vexed questions
presented to Chancellor Peyton on which
the impartial and unbiased judgment
may repose. To these we address our
| self.
1t should be borne in mind that the
Chancellor was not called on to decide
whether charter is contract or not.
That charter is a contract may be said
to be automatic, in the light Of the nu-
merous decisions so declaring; but the
question was, Is the provision in COM
plainant's charter authorizing it, from
time to time, to fix, regulate and revise
the tolls and charges by it to be received
for the transportation of persons and
property upon its road, a contract be-
tween the State and the company so
protected by the State and Federal Con-
situations as that the State may not, by
legislation, regulate its freight and pas
senger tariffs?
The learned Chancellor answers this
question in the affirmative We quote
some of his expressions:
1t is not to be supposed that the COM
plainant would have accepted the charter,
invested its capital, and assumed its obli-
cations under the charter without the right
to FIX its tolls and manage its own business.
This is the most important part of the
franchise. 1t is essential to the very ex-
istence and life of the corporation.
1t is in form and substance contract.
But it has been urged with great force
that the Legislature did not have the
4 power to surrender the right to regulate
the tariffs of common carriers. In fact
this alleged want of power in the Legis-
lature is the most interesting of all the
questions which have been discussed in
connection with the subject of railroad
supervision. The learned Chancellor
admits that the complainant is subject
to the police power of the State because
the State cannot preclude itself from
exercising this attribute of sovereignty.
1t would have been more accurate to say
because the Legislature cannot preclude
the people," But what is the police
power, pray? The Legislature charters
a municipal corporation and authorizes
it to regulate the fares and charges of
wagons, drays and hacks, and this is said
to be done under and by virtue of the
police power of the State. Why is it
then, when the State undertakes to regu-
late the tariffs of railroad corporation
it is said by the Chancellor that the
police power does not confer the right?
Wagoners, draymen and hackmen are
public carriers, so are railroad eompa-
MES, and why regulate the one and not
the other? The answers to questions
like these would, at least, have shown an
effort on the part of the Chancellor to
meet the objection to his precedents on
the binding force of charter contracts.
The doctrine that charter is a con-
tract and, therefore, not to be altered,
repealed or modified, has been extended
beyond the limits of common sense, and
if carried to its full extent would author
ize the complainant company to charge
one hundred dollars mile for carrying
passenger; but the announcement of
such right under as sacred thing as a
railroad charter, would be so outrageous
and shocking that these same courts
which have again and again declared
the inviolability of charter contracts
have been compelled to declare that not
withstanding railroad charter, on its
face, may grant to the incorporators the
absolute right to fix and control their
tariffs, they will net be allowed by
the courts to charge more than reason
able compensation for the service per-
formed. On this point Chancellor Pey-
ton says:
"The grant to the complainant to fl and
regulate its tolls and charges must be taken
| in connection with the existing principles
of the common law, that such tolls and
charges must be reasonable and free from
unreasonable discrimination. These prin-
ciples of the common law entered into and
| formed part of the grant. Therefore the
contract of the complainant with the State
is to charge reasonable tolls and to make
no unjust discrimination"
We differ with the Chancellor in this
that we do not consider that the COM
plainant is under any contract with the
State to charge reasonable tolls: If it
were true, as stated, that there is such
contract then the State could recover
for every breach of it. The fact that
the State could not recover is conclusive
that there is no such contract.
We think that the true view is this:
At the common law, common carriers
were limited to reasonable charges, and,
when by acts of incorporation artificial
persons were clothed with the power of
doing the business of common carrier,
and therefore authorized to charge tolls,
the courts finding these artificial persons
clothed with the privileges of natural
persons subjected them to the same
rights and duties in connection there
with. The limit of reasonableness was
enforced by the courts in the absence of
legislative direction at common law
whether corporations or natural persons
were the carriers, and it is enforced now
in the United States by the same aoen-