Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1888-05-14
THAT FRANCHISE.
THE DECISION IN THE RAILROAD
TAX CASES.
Its Importance Increased by Issu.
ance of the Full Opinion
of the Court.

OF the court.
The complete text of the recent decision
of the United States Supreme Court in the
California railroad tax cases was issued on
Saturday and the following additional
synopsis of it is given in dispatch to the
San Francisco Chronicle published, yes.
terday:
The decision of the Supreme Court in
the California tax cases was issued to-day.
| One of the Justices of the Supreme Court
said it was the most important decision
that the Court had rendered for some time.
The brief synopsis given by Justice Brad
| ley to the Chronicle correspondent when
the decision was announced did not indi-
cate the importance or the extent of the
decision. 1t is the first time that the Su-
preme Court has passed upon the question
whether a State can tax a Federal fran
chise. Justice Bradley argued this ques-
ton at great length, the whole decision
occupying ten closely printed pages. The
following is the main part OF the argu-
ment
Speaking of the right of Congress TO
grant the franchise, Justice Bradley says
it cannot at the present time be doubted
| that Congress, under the power TO regulate
commerce among the several States as
well as TO provide for postal sccommoda-
tons and military exigencies, had author
ity to pass these laws. The power To con-
struct, or to authorize individuals or cor
porations to construct, national highways
and bridges from State to State is essential
TO the complete control and regulation of
interstate commerce. Without authority
in Congress to establish and maintain such
highways and bridges, it would be with
| out authority to regulate one of the most
| important adjuncts of commerce This
power in former times was operated to
very limited extent, the Cumberland or
| National road being the most notable in
| stance. Its exertion were but little
| called for, as commerce was then mostly
conducted by water, and many of our
statesmen entertained doubts as to the ex-
| istence of the power to establish WAYS of
communication by land. Butsince, in con-
| sequence of the expansion of the country,
| the multiplication of its products and the
| invention of railroads and locomotion by
steam, land transportation has so vastly in
creased, sounder consideration on the
subject has prevailed and led to the con-
clusion that Congress has plenary power
over the whole subject.
| Of course, the authority of Congress over
| the Territories of the United States. and its
| power to grant franchises exercisable
| therein, are, and ever have been, undoubied:
| but the wider power was freely exercised,
and much to the general satisfaction, in
the creation of the vast system of railroads
connecting the East with the Pacific, tray
ersing States as well as Territories, and en-
| ploying the agency of State as well as Fed
| eral corporation. (See Pacific railroad re-
moval cases, 1l5 U. S., ii TO 49,
Assuming then that the Central Pacific
| Railroad Company has received the i'm
portant franchises referred to by grant of
the United States, the question arises
whether they are legitimate subjects of tax
alton by the State. They were granted to
| the company for national purposes, and to
subserve national ends. 1t seems very
| clear that the State of California can neither
take them away nor destroy nor abridge
them nor cripple them by onerous burdens
Can 1t tax them? 1t may undoubtedly tax
the outside visible property of the company
situated within the State. This is a differ
ent thing. But may it tax the franchises
which are the grant of the United States
In our judgment it cannot.
What is a franchise? Under the English
law Blackstone defines it as I" a royal privi-
lege or branch Of the Kings prerogative.
subssting in the hands of subject " q
Com, 81. Generalized and Invested of the
special form which it assumes under a
monarchical Government, based on feudal
traditions, a franchise is right, privilege
or power of public concern which ought
not to be exercised by private individuals
at their mere will and pleasure but should
be reserved for public control and admins
tration, either by the Government directly
or by public agents acting under such con-
ditions and regulations as the Government
may impose in the public interest and for
tho rlhlia - !
must exist under every form of society.
They are always educed by the laws and
customs of the community. Under our
system their existence and disposal are
under the control of the legislative depart
ment OF the Government, and they cannot
be assumed or exercised without legislative
authority. No private person can establish
public highway or public ferry or rail
road, or charge tolls for the use of the
same, without authority from the Legisa-
ture direct or derived. These are fran
chlseS. No private person can take anothers
property, even for a public use, without
such authority, which is the same as to say
that the right of eminent domain can only
be exercised by virtue of legislative grant
This is franchise. No persons can make
themselves a body corporate and polite
without legislative authority. Corporate
capacity is a franchise. The list might be
continued Indefinitely
In view of this description of the nature
OF franchise, how can it be possible that
franchise granted by Congress can be SUBJ
lect TO taxation by State without the con-
sent of Congress? Taxation is a burden,
and may be laid so heavily as to destroy
the thing taxed or render it valueless As
Chief-J Justice Marshall said in Mccullough
VS.. Maryland, Z" the power to tax involves
the power TO Destroy" Recollecting the
fundamental principle that the Constitu-
ton, laws and treaties of the United States
are the supreme law of the land, it seems
to US almost absurd to contend that power
given to person or corporation by the
United States may be subjected to taxation
by State. The power conferred emansted
from and is portion of the power of the
Government that confeTs it. To tax is not
only derogatory to the dignity but subver-
slve of the power of the Government, and
repugnant TO its paramount sovereignty.
1t IS unnecessary to cite cases on this sub
ject The principles laid down by this
Court IN Mccullough vs.. Maryland, Os-
born vs.. The Bank of the United States,
and Brown VS.. Maryland, and in numerous
cases since which have followed in their
lead, abundantly sustain the views we have
expressed.
1t may be added that even these views
are not in conflict with the decisions of this
Court in Thomas VS.. Pacific Railroad 20
Wall, $40 and railroad company vs. Pen
niston Us Wall, 81. AS explained in the
Ns,Nsr ,..ftI 1.nn 81 L.