The Problem of State Subsidies Stein v. City of Mobile – Alabama, 1854 (24 Ala. 591); Cotten v. Leon County Commissioners – Florida, 1856 (6 Fla. 610); Sadler v. Langham – Alabama, 1859 (34 Ala. 311)
“Certain uses and purposes … have been pronounced public, by well considered decisions, as railroads, turnpike-roads, public ferries, public grist-mills, etc. All these, and perhaps many more, the court will judicially know are within the authority left in the legislature. … The State is probably interested in the encouragement of industrial pursuits; in reclaiming its waste lands; in leaving its citizens in position to perform public service.” – Justice George W. Stone, in Sadler Bridges and Monopolies in the Age of Jackson Dyer v. Tuskaloosa Bridge Co. – Alabama, 1835 (2 Porter 296); Young v. Harrison – Georgia, 1849 (6 Ga. 130); Shorter v. Smith – Georgia, 1851 (9 Ga. 517) Before the industrial revolution, states usually granted exclusive charters to transportation companies: only one railroad, canal, or bridge could operate in a particular area. As America grew and more transport was needed, established franchise owners fought to prevent new charters from being issued. But during the Jacksonian era, most American courts moved away from the traditional presumption of exclusivity: charters were now presumed not to be exclusive unless the legislature explicitly made them so (§§ _____). Southern courts wholeheartedly joined in this movement. The Dyer and Young cases are leading examples. In each case, Deep South courts rejected claims of ferry proprietors that when the legislature gave them their charters meant the charters to be exclusive. Georgia’s Chief Justice Lumpkin was a leading expositor of the new philosophy: in Shorter, he bluntly stated that the no-exclusivity rule was necessary to accommodate population growth and new economic conditions and that he, for one, was glad to see the old rule go. | “We think the [state’s taxation] power extends to the employment of all those means and appliances ordinarily adopted, or which may be calculated, to develop the resources of the State, and add to the aggregate wealth and prosperity of the citizens … The will of a legal majority is not tyranny. It is the good of the community to which we belong.” – Justice William Chilton, in Stein “Surely it will not be seriously contended that … county authorities … shall be precluded from availing themselves of the benefits resulting from the most magnificent discovery of the age.” – Justice Charles Dupont, in Cotten “The duty of the government is to protect the citizen in his occupation, not destroy it by setting up a rival interest. … [T]he assumption of unrestricted sovereignty in the imposition of taxes and disbursement of public money, has not foundation in American institutions, and is not fitted to American soil.” – Justice Thomas Baltzell (dissenting), in Cotten “Notwithstanding the profound regrets expressed by Chancellor Kent at [the] overthrow [of the rule that bridge franchises are exclusive], … such a doctrine … is at war with the universally recognized principles of American constitutional law, and totally inapplicable to our local situation and change of circumstances. … [W]henever, owing to a change in the population, business, and intercourse of the country, the public interest requires the opening of new avenues … chartered rights … must yield and become subservient to the public good, provided, just compensation be made.” – Chief Justice Joseph Lumpkin, in Shorter |
EMPIRE OF LAWS - The Legal History of the 50 American States > 6. DEEP SOUTH LEGAL HISTORY > 6.3 Deep South: The Antebellum Era (1831-1861) > 6.3.1 Deep South (1831-1861): The Nullification Crisis > 6.3.2 The Heart of Slavery: Limits of Discipline, Limits of Freedom > 6.3.2 The Heart of Slavery: Struggles Over Manumission >