Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1889-01-29

the transportation of freight, and as
! high as cents per mile for passenger
fare, aud others were not limited at all
! by any maximum rate.
And as an nducement, not only to
| these companies, but 10 others thereafter
! TO be organized, TO construct lines of rail-
| way in Il sparsely populated and remote
! region, the legislature proposed, upon
/ certain terms to be complied with by cap
/ italists, tc offer the induce
ment-and very great one
! it Was--that the capital thus invested
/ should not be at the arbitrary viii OF the
! state until lis net profits should equal the
/ maximum Of the conventional rate of m
/ terest on money. As the respective COM
1 pauieS accepted the terms aud provisions
J of the act of 1858, they then and there
! completed q contract with the state that
! could not afterwards be disturbed by the
! state, either By its organic law OF by leg
/ islative- enactment The state had the
! right "a tx the rate, but it is an historic
/ cal fact beyond the pale controversy that
neither Before the act of 1879, fixing the
rates or Indeed now, mad or has any
railway ia the state a net earning of II
! per cent. per annum upon the actual
cost OF its property or OF the capital
stock. The state made the offer OF d
| contract with railway companies and the
railway companies accepted the offer and
il was discretionary with the state TO leg
islate or not, in its wisdom, upon the
question of rates within the limits fixed
by tile fifteenth section Of III e act.
As before stated. it could not be fore
Swallowed at that early day whether such
rates would enable railroad companies to
l,a
whether, on the other, the continued
permission to enjoy the right to levy
toll upon the travel and commerce of the
country to the extent fixed in the charters
! might not become an engine of oppression
in the hands Of the railroads, to the bust
ness Of the country as it might be de-
veloped in the future. The primary OBJ
ject Of the act, then, was to pass gen.
eral law, fixing a flexible and just rule
for the adjustment OF rates, ana inducing
the railway companies, whose charters
gave them the arbitrary power to fix
maximum rates, to yield that right and
accept the provisions Of the act of 1853,
in the nature &C al amendment to their
charters, and ut the same time to bring
under the influence of the act
and subject to precisely the same
conditions, other railway companies
that might come into existence under
the subsequent legislation of the state
If the act Of 1853 failed to accomplish
this primary object, then number of
your railway corporations, embracing
some of the oldest in the state, have still
the arbitrary power contained in their
charters.
1 do not maintain that the act of 1853
was not repealable. 1t was as much the
subject of repeal by subsequent Iegisla-
lures as any other general law. 1t was as
clearly the subject of repeal as the gen.
eraI Incorporation act, now on your stat
ute books: yet as to the latter, no MEM
Der of the legal profession will maintain
that if the general incorporation law
were now repealed, it would divest any
right that had been taken under its pro-
visions by the corporation, whether rail-
road or not which hadi organiZed,unde it,
and was proceeding in the exercise OF the
franchises conferred by virtue Of the ac-
ceptauce of the general corporal ton act
The act of 1858 was repealable by any
subsequent legislatures; but as fact, it,
first and fifteenth sections were not re-
pealed until your state had nearly 5000
miles of railway constructed, with the
act in full force upon your statute books.
The act itself was proposition Of the
far as it was accepted before its repeal
by any railroad company, it became a
contract between the state and such rail-
road company. If the acceptance did
not amount tc an agreement, stipulation
nor contract on the part of the state with
all the ccrrelative rights on the part of
companies, | am unable to perceive the
first principles governing such matters.
That the state can make a contract will
not be denied. That it can do so only
under some authority conferred by the
constitution, or by statute, is equally in
controvertible What is an act OF incor-
poration but Il contract between the SUI
periOr power or authority and the capt.
talist who puts his money into an enter
prise under the provisions OF the law of
incorporation? If by its statute, passed
by the legislature, III pursuance of eX-
press or implied powers of the constitu-
ton, the state offers to any particular
person or corporation to make a contract
within the purview of its power, and the
person or corporation accepts it i'll the
manner presc ibed by the statute, il is
then certainly the best defined and only
mode by which the state can make a con-
tract with an individual or corporation;
and l am not aware OF any other means
by which.a state can make a contract
with natural person or with corpora
ton.
If such a contract can be set aside by
the legislature at any time then every
bond issued by every state is simply a
uullity. The internal improvement act
of the state of Tennessee, passed in 1851
provided that any railway company hav-
ing a charter if under the laws of that
state would prepare its road for the ties
and iron, the state would issue bonds in
favor of such railway company to the
extent of SO 900 per mile The state
has had to pay those bonds or is now liza
bic for them, although the act was re-
pealed twenty-five years ago. The bonds
were issued while it was in force, and no
authority has ever questioned them, no
court has ever questioned them, but they
have treated them with the same solemn
good faith as if the charter had said:
"be it furthur enacted, and then
copied exactly the act of 1851 as q part
of the charter
If am correct III the view have taken
on the act of February I, 1858, it follows
as a necessary consequence that railway
commission, independent of all other
considerations, could not be clothed with
power to change or affect rates. on COM
mercial traffic; but l maintain that the