The Topeka state journal., 1897-03-09

obedience to their recommendations. sec
court for this order. Here again a ju-
dicia1 Interpretation would be necessary.
While section again attempts to estab-
lish an anti-pass regulation, 1t does so in
apparent obliviousness of the title of the
section 2s which i iy permits rs the Issuance Of
mileage, excursion or Communication pas
pTaeticaI Vaine f WhateveT e. G f iIPPS there should
be any disposition to evade it's terms.
There is about this bill a general air of
indefiniteness and uncertainty discernable
to the most casual inspection, which
seems to me to be open TO a vast array of
legal technical objections. With such a
future before it, it is almost impossible to
hope that any enforcement of its provis-
real practical value to those who com
plain of the charges and the methods of
Perhaps the greatest objection that has
been urged against more effective legisla-
court of the United States has decided
that the legislatures of states were not
impression has been most assiduously dis
Seminated by the Salaried representatives
correct. The whole drift of the law de-
clares that the legisla lures are entitled TO
This theory takes its rise in the earliest
history of our common lay Jurisprudence
supreme court OF the United States itself
has upheld nearly every effort of a state
to fix the maximum rate. not only upon
common carriers, but upon things which
seem to be of a less public nature. includ-
ing even grain warehouses. Two hundred
ana nrty years ago Lord Ch1ef Justice
Hale declared that when private property
is affected with public interest it ceases
10 be entitled to the peculiar privileges of
private property. and he further declared
that the government has control of
WbarVeS, terryS and other forms OF prop
erty which the owner places at the dis
posal of the public for hire. In the case
of Mum, V Illinois, "a U. S. Rep, page
126, the supreme court of the United
States says that this has been accepted
without objection as an essential element
IN the law of DrODertV Since.' Dur
ing the reign of William and Mary. the
parliament of England enacted a statute
regulating the charges or common car
rierS. In case of Providence bank, V. Bill
Ings & Pitman. 4 Peters, $50 Chief Just
ice John Marshall said in reading the de-
cision of the supreme court, speaking of
the legislative power of each state This
vital Mower ,oayJ he abused h1t the con
StitutiOn of the United States not in
tended to furnish the corrective for every
abuse OF power which may be committed
by the state governments. The interest,
wisdom and justice of the representative
body and its relations with its constitu>
ents furnish the only security where
there is no express contract against un-
just and excessive taxation we'll
against unwise legislation generally In
Railroad Company. V Maryland, p Wal
States said. speaking of the first days of
the Republic: No one at this day imas
country We're not entirely subject both
as to their construction, repair and man.
They were all made either by the states
or under their authority. The power of
tolls as it saw fit was unquestioned, and
when in process of time canals were con-
Structed, amount of tolls which was
exacted thereon by the state or by the
companies that owned them, were ever
regarded as an infringement of the con-
stitution. So when by the improvements
and discoveries of mechanical science.
railroads came to be built and furnished
with all the apparatus of rapid and alb
SOrbing transportation. one ina gineQ
that the state If itself owner Of the work.
might not exact any amount whatever of
tolls or fare freight authorize its
citizens or corporations, if owners. to do
the same These are positions which
must be conceded; no one has ever doubt
ed them This unlimited right of the
state to charge or to authorize to charge
toll, freight or fare for transportation on
its roads. canals and railroads. arises
from the simple fact that they are its
own works, are constructed under its au-
thority. 1t gives them being 1t has a
discretion as to the amount of that cons
pensation. That discretion is a legisla-
tive.-a sovereign-discretion, and in its
very nature is unrestricted and uncon~
trolled. The security of the public against
any abuse of this discretion resides in the
for the time being are duly invested with
it. In this respect it is like all other legis-
lative power when not controlled by spe-
cifc constitutional provisions and the
courts cannot presume that it will be ex-
have built the road itself and charged
any rates it chose. How does the case
differ in constitutional point of view
build the road In our judgment there
is no solid distinction 1t is simply the
OF its own property and prerogatives."
This decision was rendered in 1874 About
this time the abuses of the public by rail-
road monopolies attracted SO much atten-
tion that many states began to legislate
known as the Granger cases reached the
United States supreme court in 1876 In
preme court affirmed the right of the
state to fix maximum rate on common
scope. the laws of the states of Iowa
Wisconsin, Minnesota and Illinois. In the
case of Mum, V. Illinois, the supreme
court affirms the right Of the Legislature
of Illinois to fix a maximum rate to be
houses The court said: ':of the proprie-
ty of legislative interference within the
- ~ ~ '!le lsS-S tuIe
IS the exclusive judge It is insisted. how
ever, that the owner of property is enti-
tied to reasonable compensation for its
use: even though It be clothed with a pub
lie interest and that what is reasonable is
a judicial and not a legislative question.
As has already been shown the practice
has been otherwise. In countries where
the common law prevails it has been Gus
toIaary from time lmrnemor1al for the
legislature to declare what shall be a rea-
Sonable compensation under such cfrcum-
stances, or perhaps more properly speak
ing. to fix a maximum beyond which any
charge made would be unreasonable. I'm
douptedly in mere private contracts re-
lating to matters in which the public has
no interest. what is reasonable must be
ascertained judicially. but this is because
the legislature has no control over such
contract. So. too. in matters which do
affect the public interest and as to which
legislative control may be exercised. if
there are no statutory regulations upon
the subject. the courts must determine
what is reasonable. The controlling fact
is the power to regulate at all If that
exists the right to establish the maximum
of charges as one of the means of regula-
ton is implied. We know that this is a
power which may be abused but that is
no argument against its existence. For
protection against abuses by the legisla-
ture, the people must resort to the polls.
not to the courts. In the Wisconsin case
before mentioned. the supreme court said
in its decisions: LAS to the claim that the
Ia n iC III a
not the legislature. that is not new to this
case. It has been fully considered in
Mum, V. Illinois. Where property has
been clothed with a public interest, the
legislature may fix limit to that which
shall in law be reasonable for its use
This limit binds the courts as well as the
people. If 4 has been improperly fixed