The independent. [volume] (Lincoln, Neb.) 1902-1907, 1904-11-24
6be Populist Posi-
don Stated

paid by taxes. 1T can not. therefore,
authorize them to issue bonds to assist
merchants or manufacturers, whether
natural persons or corporations rs, in II,
their private business.
Same court, in Loan Association VS..
Topeka GO Wallace. 655): ITO lay
with one hand the power Of the gov
eminent on the property of the citi-
zen, and with the other to bestow it
upon favored individuals to aid private
enterprises and build uD private for
tunes, is none the less a robbery be-
cause it is done under the forms of
law and is called taxation.
Varick VS.. Smith 6 Paige. N Y,
1877: 'The right of eminent domain
did not authorize the government to
take property of one citizen for the
mere purpose of transferring it to an
other, even for full compensation,
where the public was not interested
in such transfer; and such an arbi-
trary exercise of the power would be
an infringement of the spirit of the
constitution, as not being within the
powers delegated by the people to the
Legislature" Quoted by the chancel-
lor in Bloodgood VS.. The Mohawk and
Hudson River r. R. Co. IS Wend.. 81.
Now, the railroad problem confronts
us because:
1. The state has surrendered to pri-
vate individuals, in the guise OF cor
porations, at least two of its attributes
of sovereignty, viz: The power of
eminent domain and the taxing power,
and
2. 1t has permitted the employment
of those powers for private purposes
By the logic of events, the railroad
question was forced upon the country
about 1928 At the very beginning Of
the work Of railroad construction it
was discovered that the right Of way
could not be acquired for any convent
ent distance by voluntary purchase,
because many land owners refused to
sell at any price, especially to railroad
companies. 1t was absolutely neces-
sary, therefore. either that the land
should be- taken and the roads built
by the state, or that the power Of emf
nent domain should be conferred upon
the companies by the state.
The companies were also embar-
raised by the difficulty Of procuring
sufficient money to pay for construct
ing and equipping the road. The
amounts were large and the hazard
was deemed considerable. Hence the
expedient was suggested that the leg
islature, by statute, authorize towns,
counties and cities to issue their bonds,
payable by taxation if the venture
should prove improbable, to provide
the funds required for this work.
But neither the power of eminent
domain nor the taxing power could
lawfully be exercised except by the
state, and by it only for public pur-
pose. 1t was new problem. 1t was
necessary, therefore, to convince the
legislatures and courts that railroad
companies were part of the civil gov
eminent or state, designed to construct
and maintain public highways. The
attempt to do this projected into legis-
latures, and courts, discussion which
lasted many years, but which resulted
in the doctrine that railroads are pub
lie property.
For examples. see the following de-
cisions:
In Bloodgood VS.. The Mohawk and
Hudson R. r. Co. 18 Wend., 81 the
chancellor Of the New York court of
chancery, referring to the case of
Beekman ve. The Saratoga and Schen-
ectady R. Co. e Paige, 45), which
was decided in 1881, said: 1t was held
that railroads for the conveyance Of
travellers or the transportation of mer-
chandise from one part of tie state
to another were public improvements
and for the public benefit, for the con-
struction Of which private property
might be taken under the authority of
the legislature, upon paying just
compensation therefor to the owner"
The decision in the Bloodgood case
Q837) was to the same effect.
Conversely, in the matter of Nj
agara Falls and Whirlpool Ry. Co.
(108 N. Y. 375), the New York court
of appeals held, in 1883, concerning a
prOnOSed rail- ,,ad along the eaSfer1v