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and instruments of those with whom crime is a trade, or, being strangers and friendless, they are readily suspected, and when arrested they are unable to find bail and are committed to jail, and if indicted, the judge, however humane and considerate, is compelled to entrust their defence to some lawyer without standing or experience in his profession, and a conviction follows, for there is no one to demand justice or implore mercy. It is time that the practice of delivering the living bodies of poor prisoners to legal students for professional instruction was abandoned, and I insist that provision should be made by law for the election or appointment, in the large cities and populous counties of the State, of suitable persons whose duty it should be to visit the places where persons are confined upon criminal charges, confer with and advise poor prisoners, protect them from oppressions and extortions, attend examinations, investigate the charges against them, advise with injured parties, and the court and State's attorney, with a view to the dismissal of prosecutions where the ends of justice would by that course be promoted, or with reference to the proper measure of punishment in cases where the punishment is discretionary with the judge, or in proper cases alone, or in conjunction with the counsel assigned by the court, manage their defense. A proposition to provide for the appointment of an officer to watch the adininistration of the laws from the standpoint of those who are accused of crimes is novel, but every one familiar with the administration of the criminal laws of the State, is fully aware of the fact that a truthful statement of all the wrongs inflicted upon persons charged with offences would prove that many crimes have been committed in the name of the law.
RAILROADS. An important exception to the general disposition to obey the laws, which prevails throughout the State, is found in the refusal of common carriers of passengers and freights by railways to obey the constitutional and legal enactments provided for the regulation of that important interest, and the people of the State, aware of the refusal of this class of persons to obey the laws, and of the mischiefs their contempt of the authority of the State produces, look to the General Assembly to make further and efficient efforts to provide a remedy:
The report of the Railroad and Warehouse Commissioners, which is now in the hands of the printer, and will be laid before the General Assembly as early as possible, will contain full information as to the pretensions of the railway managers, and of the efforts made by the Commissioners to enforce the authority of the State over them.
Successful resistance to the Constitution and laws of the State subverts them. It can make no difference whether such resistance is made by physical means too powerful to be overcome, or by combinations of financial interests that merely treat the laws with contempt, and refuse to obey them. The effects of successful physical resistance are immediate and easily perceived, while those produced by persistent and contemptuous disobedience are remote, and may not at once appear, but they silently sap and weaken the foundations of public order, and in the end destroy.
The issue made with the State, by the distinct refusal of the managers of railways to obey the laws enacted by the General Assembly for the correction of abuses, and to prevent unjust discriminations and extortions, is one of power. It is not pretended that in the enactment of the laws disobeyed the General Assembly transcended the authority vested in the Legislature; for by the terms of the Constitution it is made the duty of the General Assembly, from time to time, to pass laws establishing reasonable maximum rates of charges for the transportation of passengers and freights on the different railroads of the State, and to pass laws to correct abuses and to prevent unjust discriminations and extortions in the rates of freight and passenger tariff's on the different railroads of the State; and by another provision of the Constitution, railroads heretofore constructed, or that may hereafter be constructed in this State, are declared to be public highways, and free to all persons for the transportation of their persons and property thereon, as may be prescribed by law.
In opposition to these distinct provisions of the State Constitution, and the laws enacted in pursuance of them, the railroad corporations deny their obligation to obey, and openly persist in refusing to conform to the maximum rates allowed by the acts of the General Assembly, for the transportation of passengers and freights on their lines ; and they continue to practice the abuses and enforce the unjust discriminations and extortions forbidden by the laws; and they continue, notwithstanding the legislative prohibition, to assert their right to fix their ratio for the transportation of passengers and freights on their roads, and to establish discriminations at their pleasure; and they deny the authority of the State to interfere for the regulation of the one or the prohibition of the other.
It is perhaps but just that it should be stated that it is sometimes conceded by those who manage the interests of the railway corporations that as carriers they are in some way, or to some extent, bound to conform to the principle of reasonableness in their charges; and on some occasions some of them are understood to have assented to the proposition, which seemed to be correct under the Constitution of 1848, that reasonableness is the limit of railroad rates for transportation, and the question of what are reasonable rates is to be settled by the courts when particular charges are disputed.
But the General Assembly, by the act of April 7, 1871, which was enacted to prevent unjust discriminations and extortions in the rates to be charged for the transportations of freights, fixed certain rules for the determination of the rates permitted to be charged by the railways in this State, declared all rules and regulations and by-laws of any railroad corporation that fixed, prescribed or established any greater toll or compensation than the rates permitted by the act, to be void, provided penalties for the violation of the provisions of the act, and then declared any willful violation of any of the acts to be a forfeiture of its franchises, and by the act of April 15, 1871, the maximum rates allowed to be charged by railways for the transportation of passengers was fixed, and provision made for the enforcement of the act.
Repeating expressions employed before, it seems to me to be due to the interests of the people of the State, and to the dignity and authority of its Constitution and laws, that the most energetic and decisive measures should be devised and adopted by the General Assembly, to limit the pretensions of this rapidly growing and all absorbing interest and to compel its obedience. In this view it is essential that all the offenses committed by the railway corporations should be prosecuted by indictment preferred by the grand juries, and tried by juries of the proper vicinage. One of the acts now in force, provides that State's attorneys
may prosecute; the other that he shall prosecute for forfeitures after the almost impossible event of the fifth conviction; but State's attorneys will not be likely to desire to encounter this formidable interest with no other support than the consciousness of having discharged duties. I therefore recommend that the fourth section of the act of April 7th, 1871, be amended so as to make the penalties provided by that section recoverable by indictment against the corporations and its employees, and that the fifth section be amended so as to make it the duty of the Attorney-General to prosecute railway companies for violations of the law, and that similar alterations be made in the act of April 15th, 1871."
But it seems to me that the real causes of the manifold abuses, extortions and oppressions to which the people are subjected are to be found in the fact that railroad property has passed under the control of combinations of financial adventurers who are in nowise interested in the proper management of the roads.
This condition of the management of railroads may be accounted for by referring it in part to the great increase of the speculative wealth of the country; the tendency everywhere, in every business, to organization ; and the circumstance, so unfortunate for the people, that the General Assembly did not, in the enactment of the special and general laws authorizing the creation of railroad corporations, expressly reserve such sufficient power to regulate and control their internal management as would insure the protection of the interests of the body of the stockholders and the public.
The enormous system of internal improvements undertaken by the State in its early history, proves that the people even then perceived the usefulness of railways, and their willingness to make large sacrifices to secure to themselves their advantages; and since the failure of that system, no State has made greater efforts, by liberal acts of incorporation to private adventures, grants of the right of way for railroads previously acquired by the State, gratuities in money and lands, and loans of credit by counties and other public and municipal bodies, to secure the construction of railroads, than has Illinois, and the citizens of the State have, with the most liberal spirit and by every means in their power, aided in the development of the railway system to its present proportions.
The State of Illinois contains within its limits more than six thousand miles of railroad ; they penetrate almost every county. And the railroads of this State, by their legal connections, and the identity of their interests and purposes with those of other States, have become a part of a system that it is said embraces sixty thousand miles of railroads in the United States, and which is being extended to limits that do not admit of easy definition.
The railroad and carrying interests control a larger amount of capital than any other in the United States, and by means of their capital, and their intimate relations with all other business pursuits, extending too, as railroads do, to all parts of the country, they exercise a greater measure of influence than was ever before, in any country, in the hands of individuals. The iron rail, the steam engine and the telegraph, all now in substantial co-operation, already control the commerce of the continent, and to a large extent influence the value of every product of industry and the profits of every business pursuit. They build up favored cities, and depress their rivals; they bave diminished the value of the great rivers as highways of commerce; and the shipping of the lakes, and that engaged in coastwise trade, embarrassed by obstacles that the engine upon the iron rail defies, maintain with the new agencies but a feeble and struggling competition. From the superiority of this new method of transportation in speed, in safety and power, all other modes are rendered comparatively useless, and the country is brought to face the fact that in this age of remarkable commercial and intellectual activity the only available lines of intercourse and trade on the continent are under the control of private individuals, who assert for themselves the power and the right to impose burdens upon the intercourse and commerce of the country to an extent to which they acknowledge no definite limits, nor, in the exercise of the discretion they claim as to the amounts they may impose, do they admit themselves to be bound to conform to any rule of equality, but they maintain their right to discriminate between different points on their own lines between different individuals engaged in the same business at the same points, and to increase and reduce their rates at pleasure, until to the ordinary hazards of business is added the uncertain fluctuations dependent upon the management of railways.
In my judgment the existing laws, intended to regulate the duties and define the obligations of common carriers by railway, will not accomplish the object desired, for the reason, amongst others, that they are to a certain extent based upon the wide spread misconception of the true relation of that class of public agents to the people, and, as a consequence of that inisconception, the regulations for the government of the owners and managers of railway lines are confused and weakened by assuming that the ownership and management of railway lines and the receipt, transportation and delivery of passengers and freights for hire, which constitutes the business of a common carrier, are so inseparable that they are necessarily parts of the same general business, while, in the nature of things, and from the force of practices that now extensively prevail on many lines of railway, they are certainly different pursuits; and regulations intended for the government of the one, have no fitness or proper application to the other.
All the railroads now in operation in the State were constructed under the authority of laws that conferred upon the corporators that undertook them the power to acquire the lands needed for the use of their road by consent of the owners, or to take lands as for public use upon making compensation, and the power to construct and maintain a railway with the proper appurtenances, and to acquire and hold the suitable necessary machinery to operate them, and then to engage in the business of common carriers on their own lines; and it is to the fact that railway corporations exercise the power conferred upon them to carry on the business of common carriers, and by their own arbitrary authority fix the rates they will demand for services rendered exclusively by them on their own lines, or, by combinations with other corporations that claim similar powers, fix the rates between the more important and distant points, that we owe the interest that the people feel in their inanagement. Every one interested in the subject of the cost of the transportation of the products of the country to a market, realizes, in the result of the exercises of these powers by railway carriers, all the evils that are produced by the existence of a monopoly, and many methods have been proposed for affording relief; but without now discussion any of them I am satisfied that the only means that will afford the country the relief demanded
is to invite and encourage competition on all the railroads in the State, between the carriers that own or control them, and others who, upon just compensation to be made for the use of the roads and their appurtenances, and for the fixed facilities needed, may choose to engage in the business. If the monopoly of the business on any of the important lines of railroad was taken from the corporation that owns the road, the effect would soon be perceived in the increased facilities for transportation and cheaper rates. It is because competition is not now possible that railroad managers discriminate between localities and individuals, but if the legal right of others to engage in business on the railroads of the State was one established by law, the mere existence of the right would constantly and favorably influence their conduct, though the right of competition secured to individuals by the law might never be exercised.
It was with a view to break up the monopoly of the use of their own railroad lines by common carriers, and, if possible, to separate the ownership of railroad property from the prosecution of that business, that the Constitutional Convention adopted the 10th, the 12th and the 14th sections of the 11th article of the Constitution. Before the adoption of the Constitution of 1870, the public mind had become so affected with the impression that railways could only be useful to the public as long as the corporations controlling them were able themselves to carry on business as common carriers, that a disposition was sometimes apparent to consider the rolling stock and other movable property of railroad corporations as appurtenant to the railroads. To correct that impression, and to prevent its further growth, the 10th section of the 11th article of the Constitution was adopted, which declares "that the rolling stock and other movable property belonging to any railroad company in this State shall be considered personal property, and shall be liable to execution and sale in the same manner as the personal property of individuals, and the General Assembly shall pass no law exempting any such property from execution and sale.” And then, to lay the foundation for the assertion of the public right to authorize competition in the business of carriers on the roads of the State, and to furnish the basis for a proper definition of the right of the owners of railroad property, as against the public right to its use, by the 12th section of that article it is declared "that railways heretofore constructed, or that may hereafter be constructed in this State, are public highways, and shall be free to all persons for the transportation of their persons and property thereon, under such regulations as may be prescribed by law.” And the 14th section recognizes the right of the State to take the property of corporations for public use to the same extent as the property of individuals may be taken.
These constitutional provisions are intended to establish that there is no necessary connection between the ownership of railroads and the prosecution of the business of common carriers by the same persons or corporations; that railroads are public highways, in which the public have rights, the most important of which is to use them for the transportation of their persons and property, subject only to regulations to be provided by law; that the property of railroad corporations may be taken by the State for public uses to give effect to its own policy; and the proper conclusion from these sections and from the whole scope of that portion of the Constitution which refers to railroads, is, that the policy intended to be supported is to break up the monopoly of the carrying business, which the owners and managers of railroads have