The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1889-03-07

tuition, the special provision must prevail
in respect to the subject matter of it.
Warren VS.. Sherman, Tex. R., AL.
Fer mandatory provision in the con-
stltution see Cannon vs.. Hemphill, z Tex,
Rep, 1S4.
The history of the Legislation in Texas
in regard to railroads will show the neces-
sity of making it mandatory upon the
Legislature to comply with the provisions
of section 2, art. 90, rs prescribed in the
Constitution.
By an early decision in the supreme
court of the United States a private cor
ferring franchise, the benefits of which,
as provided in the charter, could not be
DIMINISHED OR IMPAIRED,
without the consent of the grantees, by
any act of the legislature, unless the right
to do SO is reserved in the charter itself.
Cooley, Con. Lim., and authorities referred
to, p. 27S.
As to their regulation, he says "the
regulations must have reference to the
comfort, safety or welfare of society; they
must not be in conflict with any of the
provisions of the charter; and they must
not, under pretense of regulation, take
from the corporation any of the essential
rights and privileges which the charter
confers. Cooley, Con. Linn, p SIT.
Formerly charters for railroads were
granted by an act of the legislature, and
the benefits to the grantees to charge for
freight and fares, as we'll as the general
objects for which they were granted, were
expressly specified.
In order to have greater control than
was recognized by the laws referred to
as then currently decided, as early as 1854
a general railroad law was passed by the
Legislature, the object of which was to
bring railroad companies under the con-
troll OF the Legislature and to make regu-
lations generally for their conduct, and
provided that sit shall be lawful for the
legislature at any time to prescribe the
rates to be charged for the transportation
of persons and property upon any such
road should they be deemed too high, and
may exercise the same power every ten
years." under certain conditions therein
prescribed in section 16 of said act. There
was provision that any railroad COM
pany that received any favor or benefit
from the state, or subscription from a
county, should be subject to the provis-
ions of the general law, section l. This
had the effect to fix reservation on the
part of the state to control the most If
not all of the railroads, and so it was in.
tended.
From time to time different acts were
passed giving directions and fixing pen
alties for attractions. AS body of laws
that had been passed previous to 1875,
they were defective and impracticable es-
pecially in not furnishing adequate pen
altles and the proper means for their en-
forcement. (See Oldham g. White, 36l,
and Paschal Digest S16.)
The Legislature might pass such laws or
not at discretion. There never had been
any constitutional provision requir-
ing it to be done by the Legislature.
The great growth of railroads and the
large interest of the people in their bust
ness had gradually developed in the coun-
try the policy of more vigorous reguls-
ton of railroads, 30 that when the con-
vention met in 1876 they, prompted by
the interests and demands of the people,
determined to leave their regulation no
longer to the discretion of the legislature
bat to peremptorily require the legisla-
ture to pass laws regulating them, and di-
| rected exactly what sort of laws should be
passed and the subjects to be embraced
in the laws and by what means all such
laws should be enforced, to-wit: by ade
quate penalties, all which Is embraced in
section Q, article 10 of the Constitution
In pursuance to such changed policy they
adopted article ~ on private corporations
in which was provided that "no private
corporation shall be created except by
general laws" and IN other sections oil
said article in effect declared all highways
landings, wharves, bridges and ferries de-
voted to public use, with the charges for
the usehof them, to be under Legislative
control and to depend upon legislative az
thouity. In section 5 it was provided in
direct terms, that "All laws granting the
right to demand AID collect freight, fares
tolls and wharfage shall at all times bt
subject to amendment, modification or re.
peal by the legislature"
ut ID the Legislature then that
SHALL AMENB, MODIFY or REPEAL
ell such laws, when it is done at all. This
was still not enough, for well they haG
hOeAAhOu eikab ldWe are ub6lSbb uultHb bu6
means are provided for their en-.
forcement, and were not willing
to leave the legislature to its own discre-
ten on that subject, and hence it is pro.
Fided in section that "the first legisla-
ture after the adoption of this Constitu-
ton shall provide q mode of procedure by
the attoruey-gensr and district and
county attorneys, in the name and on be-
half of the state, 10 prevent and punAh
the demanding and receiving or collection
of any and all charges as freight, wharf
age, fares or tolls for the use of property
deReted to the public, unless the same
shall have been specially authorized by
law"
Here we see what was in the minds of
the members of the conversion. Illegal
rocedure-attorneys for the
state-in the name Of the state-prevent
and p1nish-all running through this SEQ
ton. 1t means that the Legislature shall
provide mode of procedure ia state
court, wherein penalties shall be provided,