St. Paul daily globe., 1895-07-24

to that action, and it's rights were not
barred thereby. UnqueStionably, it
enjoys the right to contest in court the
validity of the grant. If it shall de-
termine to do this, L am aware of no
legal impediment to an investigation
into every material question as fully
as though the aforesaid action had not
been tried. But an action differing
from another only in respect to one of
the parties thereto, the two being
identical as to their material facts,
cannot be distinguished from the other
in the application of legal principles.
Hence, the right of the state to litigate
the question of the validity of the
grant is, at best, a barren one, unless
the state is in position to produce COM
petent evidence in support of control
ling fact not presented to the court in
the other action. Does such fact ex-
list?
1t is said that the company has aban-
doned the route prescribed by the legis-
lature, and has not, therefore, earned
its grant. There is seeming force to
this view. In the absence of evidence,
to the contrary, it is difficult to per-
ceive how the line actually constructed
via Two Harbors can be deemed the
shortest and most feasible route be-
tween Duluth and the city of Tower.
It certainly exceeds by several miles
direct line between these points. But
the statute does not, of course, require
the road to be constructed over a di-
rect line, if that is not the most feasible
one. The determination of the ques-
ton of compliance with the statute
in the construction of the road was
1n1 fAY in, 1n lox,
which the company claims its grant.
Three commissioners were to be APP
pointed by the governor, who We're
vested with full power to examine and
report to him. The law in this respect
was complied with. The commissions
ers reported to the governor that the
road constructed pursuant to the
granting act was built in obedience to
its terms. The law is apparently we'll
settled that where authority has been
confided to a special tribunal to hear
and determine given matter, the
decision of that tribunal, within the
scope of its authority, is conclusive
upon ALL. Q3 Wal. SO; 25 Wheat 30).
But this precise question, as already
stated, was involved in the other ac-.
ton, and it can no longer avail the
state, unless it may be shown that the
location or construction of the road
has been
ATTENDED WITH FRAUD,
or a gross mistake of facts. 1t is
evident to my mind that if the line of
the company'S road as now existing is
manifest and gross departure from
the one contemplated by the granting
act the rights of the state cannot be
lost by the action of it's administrative
officers in the acceptance of that road.
But we must treat the question in the
line of common sense. 1t is not a
question whether another road might,
| by skillful engineering, be constructed
q few miles shorter; but whether the
present road has, in good faith, been
built in substantial compliance with
the law. That the legislature intended
! to bestow the grant there is no ques-
ton. In the construction of a railroad
between given points many practical
questions are encountered, and espe-
cially 20 when the road is to traverse
a broken and hilly territory abounding
i'm lakes and water courses. Promin-
ent among such IL that of gradients.
A detour OF a considerable distance is
often justified In securing more eco
nomical grades
In determining what is the most
feasible route between Duluth and
Tower, this question cannot Justly be
eliminated. and others might easily
be suggested The term feasible" as
employed In the statute must receive
| q reasonable conEtfuction=sLeh con-