RELATIVE RIGHTS OF R. R. COMPANIES AND THE PUBLIC. 249 



partnership undertaking. This encourages the investment of capital in the pro- 

 jected enterprise, and in order to justify the granting of this privilege, or in other 

 words, to make it consistent with the ancient legal maxim that "All corporations 

 are supposed to be created for the public good," it is necessary to assume that 

 the business enterprise thus encouraged is in itself a public benefit. The appli- 

 cation of this rule opens the question whether we have not been too reckless in 

 the creation of business corporations. But in respect to the railroad, this question 

 is not raised. That it is a public benefit is not disputed, but on the contrary 

 most freely and liberally acknowledged. Under the laws of this State any five 

 persons can organize themselves into a railroad company, and by paying into the 

 State Treasury one-tenth of one per cent on the first $50,000 of its capital stock, 

 and one-twentieth of one per cent on the remainder, they can construct and 

 operate a railroad between any two points within its limits, and any real estate 

 that may be necessary for this purpose may be therefor appropriated without the 

 consent of the owner, and for a consideration not agreed to by him, precisely as 

 in the case of other highways ; and this exercise of this State's right of eminent 

 domain in its favor, of itself alone, most unmistakably stamps upon the railroad 

 an indelible mark, to be found nowhere else than on public property, and which 

 furnishes the ever present and conclusive evidence that it is a public highway. 

 No one now dare affirm that private property can be taken for other than public 

 use; and in all cases where the use is apparently private, or in part actually so, 

 there is outside of that a much greater public good, or the seizure cannot be sus- 

 tained in equity. Moreover, we authorize the railroad company to issue its cap- 

 ital2 stock to an amount equal to its entire cost of construction and equipment, 

 and its mortgage^ bonds to an equal amount more, so that if its corporators have 

 been competent to conduct the enterprise undertaken by them, and have built a 

 road that can earn a good interest on its cost, they can at its completion, mort- 

 gage it to the full amount of its cost, sell the bonds at par, pocket the proceeds 

 and the road will have cost them nothing, except the pittance paid into the State 

 Treasury and the use of the money during the time of construction. 



We have, therefore, literally givefi to the companies whatever of private 

 ownership there may be in the roads, and in addition to that we have given them 

 most liberal subsidies from the public funds. To all these favors they are legally 

 entitled, and practically they have realized much more. It is preposterous to 

 suppose, it is an insult to the intelligence of the people, and a denial of their 

 capacity for self-government, to assert that all this most extraordinary liberality 

 has been exercised toward the railroad companies, and towards them alone of all 

 persons either natural or artificial, without an intended and expected correspond- 

 ing public benefit. There being nothing left in this case for the people to enjoy 

 except the use of the roads, it follows that the public use of the railroads,, in any 

 mode or manner consistent with the general welfare is the grand benefit expected 

 to result from their construction, and the will of the people in respect to them is 

 but modestly expressed when formulated, in the Constitution of 1875, into the 



2, 3 See Section 727 and 765, R. S. 



