The Advocate and news., 1898-03-16

70 INDIVIDUALS or corporate parties. However abaO
the nature OF that right that 10 must bear portion
or the public buTth9n1 and that portion mnat DO de-
termlneo Dy the logi9latare; This vital power may
was not Intended 20 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 lts
constituents furnish the only Boourty whore there ID
no express control, against unjust and excessive TAX
ation' "a wen as against unWise legislation generally
In 1874 the Supreme court said, in
the 21st Wallace in the Maryland case:
No one at this day imagined that che roads and
bridges OF the country were not entirely subject both
as 70 tnelT construction repair and management 20
either By the State or under their authority. No one
imagined that the State, OF Itself owner Of the work
might not exact any amount whatever OF tolls fare
or freight authorize its citizens or corporations II
owners 70 do the same. These are positions which
must be conceded. No one has ever doubted them.
This unlimited right OF the State TO charge or 70
thoEEe 70 charge toll freight or fare for tranBpOrta
uOn on los roads, canals and railroads. arises from
the simple fact that they are ts own works arc oOn'
has discretion rs 20 the amount Of that oompensA-
tion. That discretion Is legislative, q sovereign
discretion and In ito very nature Ia unrestricted and
uncontrolled The security OF the public a8alnst any
abuse Of this discretion resides In the responsibility
70 the public OF those who OF the time being duly
Invested with It, Tho state could have built the road
Itself and charged any rates IL chose. How does the
case differ In constitutional point Of view whom II
prlVuJe clLEenB 10 OuLlQ tho fQnuI
our Judgment there s no solid distinction, IL Is sim.
ply the exercise by the State Of absolute control Of
It's own property and prerOgAtlves.
In tn celebrated Mum case the Su-
preme court Of the United States said
in deciding that State can fix maxi
mum rates:
Is entitled " a reasonable compensation for its own
use even though i 6e clothed with the public Inter
est and that what Is reasonable Ia judicial and not
legislative question. As has been already shown,
the practice has been otherwise, In countries whore
the common law prevails II has been customary for
the Legislature 20 declare what shall be reasonable
compensation TO DIX a maximum beyond which any
charge would be unreasonable. Undoubtedly In mere
private contracts relating to matters In which the
public has no interest, what 10 reasonable must be
asoertained judloally but this s because the lege
atuFe has no control over such contracts 80 too In
matters which do aect che public interests and aa 10
which legislative control may be exercised, II there
are no statutory regulations upon the subject the
courts must determine what ia reasonable. The CON
trolling fact Is the power 70 regulate at all II that
exists, the right to establish the maximum Of charge
Is implied. In fact, the common law rule which re-
qulres the charge to be reasonable Is itself regula
services rendered In public employment or for the
use of property in which the public has an interest,"
only changes the regulation which existed before. IL
establishes no new principle in the law but only gives
new effect TO an old one. We know that this is q
power which may be abused but that iB no argument
against Its existence For protection against abuse
by legislatures the people must resort TO che polls,
not TO the courts.
Yet, to-day l see that Chauncey De-
pew, upholding the recent decision Of
his associate counsel ON the Supreme
bench Of the United States, tells us:
would decide finally.
And in October, 1876, in the case OF
Pick VS.. G. N. r. Co., the Supreme court
np thn ITnffoH GtOfou galH DhAnP Tardttao
Waite delivering the opinion:
As to the claim that the courts must docde what ia
reasonable not the Legislature this 10 not new 10 this
case II has been fully considered In Mum I'LL
n0B, where property has been clothed with public
Interest the legislature may hX limit TO that which
shall In law be reasonable for les use. This lmi
binds the courts as we'll as the people II 10 has been
improperly hXed the legislature the courts must
be appealed to for the change.
This law as applied to the maximum
rate law Of Nebraska would say that II
the charge fixed by the Legislature of
Nebraska Is unreasonable and seemed
improper, the Supreme court of the
United States says, that II 1t has been
improperly fixed, the Legislature, not
the courts, must be applied to for the
change. But now comes DIR. Chauncey
Depew's associate counsel and in the
decision of the railroad attorneys which
was read by Justice Of the Supreme
court Of the United States sitting on
the bench Of that august tribunal, after
waiting for long year to give their
subsidized newspapers time to prepare
the public for the enormity, and tells us
that it Is time to reverse the decisions
that have stood from the days of John
Marshall and to say to the common
wealths of this Union that they no
longer have the power to decide what
is reasonable, that the courts them
selves have taken that into their hands;
that whenever State Legislature shall
cut the rates Of a railroad 3 per cent.
the Supreme court Of the United tSates
shall spring to the rescue OF the corpo-
ratlons that most Of its members repre-
sent and inform the Legislatures that
they can't make the laws that John