CHAPTER III

CONSTITUTIONAL PROVISIONS

General Considerations. Constitutional provisions probably represent the more fundamental and permanent features of railway legislation. It may be assumed that the provision incorporated in the constitutions of the various states of the Union were thought to represent those matters respecting railways which the people of the different states, represented in their respective legislatures, considered most important and least likely to require changes in the future. The history of American constitutions does not reveal great readiness on the part of the people to change or modify their organic laws; and in view of this slowness in bringing about constitutional changes an element of fixity and rigidity is infused into the legislative control of railways.

The constitutions of the older states, as a class, contain fewer and less comprehensive provisions relating to railways; and two of them, Massachusetts and New Hampshire, embody no direct provisions of this kind, while Rhode Island is saved from being classified with these two states by a brief and rather unimportant constitutional pro

vision. In addition, there is an absence of clauses. relating to railways in the organic codes of the territories of Arizona and New Mexico. With these exceptions, every state in the Union contains more or less elaborate provisions on this. subject, varying from the less comprehensive and incomplete sections of many of the constitutions of the older states to those much wider in their scope and stringent in their nature, as in the recently adopted constitution of Montana.

By far the greater part of the contents of all the constitutional provisions may be grouped under three general heads: first, those relating to incorporation; second, those relating to public aid, and, third, to direct regulation and control, the latter having in view the correction of abuses and the establishment of equitable rates. While a few of these provisions are negative in their character, a good many of them are positive, empowering legislatures to establish rates and to do other things. calculated to subordinate the agencies of transportation to the public good.

Fifteen state

Acceptance of the Constitution. constitutions contain provisions to the effect that no railway, canal, or other transportation company in existence at the time of the ratification of the constitution shall have the benefit of any future legislation by general or special laws other than in execution of a trust created by law or by a contract, except on the condition of complete acceptance of all the provisions of the section or article

of the constitution in question. In a few instances the further provision is embodied that whenever existing charters are revised or amended, the same shall become subject to the constitution.1

Corporations organized under General Laws. In the chapter on Early Railway Charters it was noted that great crops of special charters were produced in all sections of the country, and it was perhaps a reaction against these excesses in special and local legislation which led to the adoption of constitutional provisions prohibiting the organization of railway and similar companies under special charters. One method of avoiding these constitutional and statutory provisions was observed in the case of the Northern Pacific Railway; but section 21 of the original charter of the Superior and St. Croix Railroad Company declared "that in the judgment of the legislature of this state the object of the corporation hereby created cannot be attained under the general laws." The later constitutions of the Western states are very stringent in this respect, and the organization of a large class of corporations, of which railways are an important member, under special acts, is rigidly prohibited.2

1 The constitutions incorporating such provisions are found in Alabama, Arkansas, Colorado, Delaware, Idaho, Kentucky, Louisiana, Mississippi, Montana, North Dakota, Pennsylvania, South Dakota, Texas, Utah, and Wyoming.

2 The following states have incorporated such prohibitions in their constitutions: Arkansas, California, Colorado, Delaware, Florida, Illinois, Idaho, Indiana, Iowa, Louisiana, Maryland, Michigan, Min

Previously granted Charters. - Closely allied to the last type of constitutional provisions is another, found in only six states, which invalidates all charters and special or exclusive privileges granted before the adoption of the constitution, unless organization had been actually effected. Organization thereafter could not be effected without a full acceptance of the new constitution.1

Special Charters. In addition to the positive provision that railway companies shall be organized under general laws, nineteen constitutions contain the negative clause that no special charters shall be granted, except for charitable, educational, and certain other purposes, when the same shall remain under state control. A few constitutions specify that special charters may be granted to corporations and organizations not having in view financial gain.2

Railways Public Carriers.-The analogy of railways to common roads and other public highways is expressed in constitutional provisions declaring all railway and canal companies to be common carriers. While provisions bearing on this topic are differently worded in the different constitu

nesota, Missouri, New York, North Carolina, South Carolina, Utah, West Virginia, Wisconsin, and Wyoming.

1 This is found in the constitutions of Arkansas, California, Colorado, Kentucky, Idaho, and Wyoming.

2 The following are the states whose constitutions contain such provisions: Arkansas, Colorado, Idaho, Kentucky, Kansas, Minnesota, Mississippi, Missouri, Nevada, New Jersey, North Dakota, Ohio, Oregon, South Dakota, Tennessee, Texas, Utah, Washington, and Wyoming.

tions, sometimes a separate section being devoted to it, and in other instances only a phrase or sentence embodied in another section, the meaning is usually the same; namely, the declaration that the railway is a public highway and that railway companies are common carriers.1

Eminent Domain and Public Use. - Ever since the Supreme Court of the United States handed down the decision of Munn v. Illinois, declaring that whenever a person devotes his property to a use in which the public has an interest, he must grant, to the extent of that interest, the right of the state to control that property, no one could consistently question the public nature of railways. This fact has found common expression in the term "quasi public," which is now generally applied to railway corporations. A large number of state constitutions declare that the respective legislatures may take the franchise and property of railway companies and subject the same to public use, when the general welfare requires it, in the same manner in which the property of individuals is taken. In other words, these states reserve in their constitutions the power to exercise the right of eminent domain over all the corporate property of a railway company.2

1 The following constitutions contain such provisions: Alabama, Arkansas, Colorado, Idaho, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Pennsylvania, South Dakota, Texas, Utah, Washington, West Virginia, and Wyoming.

2 The following states have this provision: Arkansas, California, Colorado, Idaho, Illinois, Kentucky, Mississippi, Missouri, Montana,