Page:The Green Bag (1889–1914), Volume 25.pdf/14

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Ithamar Conkey Sloan


argument concludes with these terse It may be said in passing that the sentences: "It us true that there is no case of Olcott v. The Supervisors, 16 express constitutional prohibition upon Wall. 678, holds that a railroad is a public the exercise of the power of taxation highway, a road for public use, and that here claimed. The reason undoubtedly therefore a state may impose a tax in is, that while history furnishes many furtherance of that use, though the road examples of the rapacious conduct of be owned by a privatecorporation. That governments in taking the property of view has never been accepted in Wis citizens for their own purposes without consin as the correct one. Nor does it compensation, no government of any find general support in the courts of last civilized country, however despotic, had resort in the several states. The limits of this article will not per ever claimed, or attempted to exercise, the right to take, without compensation, mit of a too extended reference to the the property of one class of citizens and litigation in which Mr. Sloan was inter give it to another. In these latter days ested and of which he was so large a part. the attempt has sometimes been made, But any consideration of his professional as this case shows; but whenever it has career would be both unsatisfactory and been made, courts have everywhere held incomplete, if it failed to take into ac that no such power has been granted to count his great public service to the state the legislative branch of government, and to the nation by reason of his inti and that all acts having such an object mate connection with the litigation growing out of the Potter Law, so called, in view were wholly void; and the pro hibition is as imperative as though found the Granger Railroad legislation enacted in the express provisions of the Consti by the Wisconsin Legislature in the early part of the winter of 1874. This law tution." It is to be noted that Mr. Sloan's proposed to fix the maximum rate for argument was almost entirely indepen the carriage of passengers or freight in dent of reference to authorities. And yet Wisconsin by railroad, express and tele his arguments were so well put and for graph companies. It was claimed to be cible as to be convincing to the majority drastic in its operation and the railroad of the judges of the Supreme Court companies insisted that it involved an as to their correctness. The doctrine unwarranted exercise of legislative power. of this case has been followed in a large On the other hand, it was claimed that number of cases.2 the constitution of the state gave to the Legislature the right lo exercise this 'Phillips and others v. Town of Albany and others. power; that unless it could be made to 28 Wis. 340. 357; Judd and another v. Town of Fox Lake and others, 28 Wis. 583. 585-6; Stale ex rel. appear that the exercise of the power in McCurdy v. Tappan, Town Clerk, 29 Wis. 664, 685; the instant case amounted to confisca Rogan v. City of Walertown. 30 Wis. 259, 264; Lawson v. Schnellen and others. 33 Wis. 288. 292; The tion, the parties affected by the law would State v. West Wisconsin Railway Co., 34 Wis. 197, 215; The Attorney-General v. Railroad Companies, 35 Wis. 425, 571; Bound v. Wisconsin Central Rail Wis. 411, 425; Lund v. Chippewa County and others, road Co., 45 Wis. 543,559; Nevil and another v. Clif 93 Wis. 640, 650 and 1; Wisconsin Keeley Institute ford etal.. 55 Wis. 161, 172;Lynch v. Eastern. LaFayelte Co. v. Milwaukee County, 95 Wis. 153, 159; Chi. & Miss. R'y Co., 57 Wis. 430, 435; S. C. id. 470; and N. W. Railway Co. v. Morehouse and another, Willard and others v. Comstock and another, 58 Wis. 112 Wis. 1, 10; The State ex rel. City of New Rich 565, 574 and 5; Sage and others v. Town ofFifield and mond v. Davidson, St. Tr., 114 Wis. 563, 574; The others. 68 Wis. 546, 550, 1 and 2; Pedrick and others v. State ex rel. Garrett v. Froehlich, Sec. of State. 118 Wis. City of Ripon and others. 73 Wis. 622, 625; Ellis v. 129, 135; The Citizens' Savings and Loan Ass'n v. Northern Pac. R.R. Co., 77 Wis. 114, 118, 19and 20; City of Topeka, 20 Wall. 655; Kennicott v. Super S. C. 80 Wis. 459, 463; Fowler v. City of Superior, 85 visors. 16 Wall. 452, 463.