248 KANSAS CITY REVIEW OF SCIENCE. 



motely in the other is, in what sense or to what extent is a railroad a '' public 

 highway." That it is a public highway is not to be questioned in Missouri. No 

 matter how many conflicting laws or judicial decisions there may be on this sub- 

 ject in other States, the question is settled here by our State Constitution, which 

 declares that " railways heretofore constructed, or that may hereafter be con- 

 structed in this State, are hereby declared public highways, and railroad com- 

 panies common carriers." The coupling together of these two predicates in one 

 proposition assists materially in ascertaining its true meaning. Of course the 

 railroad is not the same kind of a public highway as is the sea, the lake, the 

 river, the canal, the common road, the turnpike, or the street. Neither are any 

 two of these exactly of the same kind, but they are all highways, and adding the 

 railroad to the list, we may afiirm of them all — that the citizen is entitled to use 

 upon any one of them whatever mode of transportation may be adapted to its 

 peculiar nature and characteristics, and consistent with the rights of others, or 

 the public welfare. On the street, the turnpike, or the common road he may 

 use for the purpose of locomotion, either his own physical power^r those of 

 any domestic animal, or any mechanical power that does not interfere with or 

 endanger the rights of others ; or he may use the vehicles of common carriers 

 running upon these thoroughfares. So, in a more restricted sense, perhaps, as to 

 modes, he may use all aquatic thoroughfares, and with still other restrictions 

 he may use the railroad. In all cases the use is his, subject to such restric- 

 tions as, from the nature and characteristics of the thoroughfare, are consist- 

 ent with the safety and rights of others, or in other words, with the public 

 welfare. He may and he does put upon the railroad his own coach or his own 

 freight car, and demand that for a reasonable compensation the same be hauled 

 by common carriers operating motive power on that line; or he may and he does 

 offer himself or his goods for transportation in the coaches or cars of any common 

 carrier using the line with the vehicles he requires. He may also enter upon the 

 railroad with his own motive power, but in that case in order that he may not 

 imperil the safety or rights of others, he must place himself under the direction of 

 the officer controlling the movement of trains, and impHcitly obey his orders. 



These are some of the rights which the people have in the railroad, because 

 it is a highway, and we have assumed it to be a highway, because it is so declared 

 in our State Constitution. But if it were expedient to go behind the Constitu- 

 tion, and discuss the question of the de facto status of the railroad company in the 

 body politic, and the tenure by which it holds its property, etc., we think it can 

 be clearly demonstrated that all, and more than all the rights we have enumer- 

 ated belong rightfully to the public, and that the railroad is a highway in fact as 

 well as in law. The railroad company is a corporation, of the non-political ' or 

 private class, in the form of an incorporated joint stock company, organized for 

 the sole purpose, on the part of the incorporators, of pecuniary profit to them- 

 selves; and they solicit the privilege of incorporation, because under it each one 

 of them can invest a portion of his capital in the contemplated business, without 

 jeopardizing the remainder, which he cannot do in an individual or an ordinary 



