Page:The Green Bag (1889–1914), Volume 14.pdf/558

 John IV. Cary. with the same amount of business done by the company during the past year will yield no net income. And as the net income or revenue constitutes the sole profit and measure of value of the road, it is plain that if the act is sustained,, and retained as the permanent policy of the State, the value of the road is destroyed and lost both to the bond and stockholder. It is plain, therefore, that the law not only takes but confiscates the property of the company. The right to regulate charges cannot be sustained because the State has empowered the company to exercise the right of eminent domain. The right may be conferred on an individual as well as upon a corporation. It cannot be maintained on the ground that such road is a public highway. A railroad is a high way in a certain sense, but not in the ordi nary sense of the word. It is a great thoroughfare, but not open to the public, nor owned by the State, nor in any manner con trolled, managed or used as are common high ways. The legislature treats it as property, not as common highways. It is subject to taxation. While corporate franchises may be said to be a species of property, and are of value, they are entirely distinct from what is ordinarily understood by property of the corporation or of the shareholders. No modi fication or repeal of the corporate franchises under which corporators have purchased and hold property, can impair any estate or vested right of the corporators in such property. The State cannot recall any more rights or privileges than it has granted. A railroad may be operated by an individual as well as by a corporation, and charge for transporta tion of freight and passengers, without inter ference or control of the government, except that charges must be reasonable. The con stitutional reservation gives the legislature no power to interfere with such property, or to prescribe the compensation to be made for

its use. This reserved power only gives the legislature power to alter such things as are contained in the charter, and there is nothing to alter in the company's charter, as to rates. The power to amend is not reserved, but the power to alter; and an alteration must be of something already in the charter. Numerous other questions were presented on both sides of this interesting case by the eminent counsel employed. The Wisconsin Court held, however, that as to the rights claimed under the charter, the reserved power in the Constitution of the State authorized the action of the legislature. Mr. Cary was a member of the Committee on Judicial and Remedial Procedure of the American Bar Association in 1890 and 1891. He was a member of the minority of that committee and prepared the report of the same submitting objections to the proposed change in our jury system then under con sideration. This report is a strong presenta tion of the arguments in favor of retaining the jury system unimpaired by any changes whatever. It shows Mr. Cary to have been the wise conservative lawyer, always opposed to changes of doubtful expediency. This re port is deserving of wide reading and general circulation. A few excerpts are given : "All change is not reform. It is the duty of this Association closely to scrutinize and examine all important changes proposed in the methods of our jurisprudence, and earnestly inquire whether the change is in reality a re form, and one that would improve the course of remedial justice, or an unwise and reckless removal of important landmarks established by the wisdom of our fathers. . . . We firmly believe that our people would never be satis fied that their most important rights and in terests should be finally fixed and disposed of by a part of a jury, empanelled to hear and decide the facts in a given controversy, and have no doubt that the entire abolition