The representative. [volume] (St. Paul, Minn.) 1893-1901, 1893-08-30

readers to remember, while reading
this significant article, that it's bold
and radical utteranceS are not from
some populist stump orator, but
from a Judge and an attorney by
profession. Nothing could indicate
more clearly than this article the
abyss towards which the free people
of this country are advancing.
(COntinued)
Among the irrepealable sovereign
prerOgatives which corporate promot-
ers have been able to purchase by
bribery is that of eminent domain.
The state has the power to take pri-
vate property for public use subject
to the constitutional limitation that
it must be on the payment of just
compensation. The language of
nearly all these constitutional pro-
hibitions is that 'private property
shall not be taken for public use
without just compensation. But
the trainers of our early state con-
situations forgot to say cor dam
aged" Now, while restraints upon
legislative power are not to be ex-
tended by loose construction, the
direct damaging Of private property
for public use, was obviously within
the meaning of the provision. 1t
was a taking pro toa,to. But many Of
the courts did not so hold. The cor
poration was everything; the isolat-
ed individual was nothing, even in
the opinions of elective judges. Ease
ments of great value connected with
his land were destroyed. The infa-
nous doctrine of an English court,
founded in the principle of their con-
stitution that Parliament is supreme,
that where the parliament authoriz-
es public work and does not provide
for the payment of damages to adj
jacent property injured by that work,
no damages could be recovered by the
property owner, though totally inap-
plicable under our theory of govern
ment, was appealed to for the pur-
pose of allowing the corporation to
damnify the individual without linn
it and without compensation, in so
far as it's acts did not amount to a
literal taking" of the land. This
infamous judicial abnegation of JUS
tice received, am glad to say, one of
it's greatest checks in the Supreme
court of the United States, show
ing that that great tribunal has
sometimes been on the side of popular
right. Doctrines so odious to justice
could not be permanently endured by
a free people possessing the means of
changing their constitutions; and
they changed them in most of the
states, so as to put in them what the
courts ought to have put in them by
fair, judicial construction, the
construction that private property
should not be taken or damaged for
public use without just compensation.
REPEAL OF THE DARTMOUTH COL
LEGE DECISION.
But you ask me why 1 make til
rade against the Dartmouth College
case and it's congeners against de-
cisiOn the doctrine of which has
been accepted throughout the United
States as canon of constitutional
law, the principle of which has so ir-
revocably passed into American jul
risprudence that no argument can
hope either to shake or repeal it. I
answer that [ am not asking the
courts to reverse it; | am not asking
the lawyers to repudiate it. Lam
merely dealing with it as a historical
subject. Its doctrine remains as
theoretical principle in our jurispru-
dence. Beyond that it is dead, dead,
dead. 1t has been repealed by the
slow, laborious, and expensive process
Of enacting statutes and amending
constitutions. Mr.. Justice Story, in
his opinion in that case, was good
enough to point out that the PERM
cious consequences of the decision
which the court made could be avoi-
ded by retaing in the acts of incorpo-
ration the right of amendment or
repeal. Such right has been incor-
porated either into the organic law
or into the general statute law of
probably every state in the union.
No corporation is now created except
subject to the right of legislative
supervision. I repeat that the Dart
mouth College case has been every
where repealed, so that it now exists
only as an abstract principle of jur-
isprudence. It was repealed by sill
ent and laborous processes. But it
took long reach of time and great