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Ordered, That the said committee have leave to sit again for the consideration of said bill.
Mr. Parkison, agreeably to notice given, and by leave, introduced bill No. 37, entitled “a bill to establish a certain Territorial road;" which was read the first and second times.
And then the House adjourned.
Monday, February 7, 1842.
Mr. Hackett, from the committee on Enrolled bills, reported the following to be correctly enrolled, viz:
“An act to revise and amend an act to incorporate the Western Fire Insurance Company at Prairie du Chien, and the Howard Fire Insurance Company of Brown county.”
“An act to organize certain towns in the county of Racine.” “An act to incorporate the Fond du Lac Company."
Which were signed by the Speaker and ordered to be presented to the President of the Council for his signature.
Mr. Eastman presented the petition of citizens of Southport in Racine county, relative to roads; which was referred to the committee on Roads.
On motion of Mr. Darling, Resolved, That the committee on Territorial Affairs be instructed to inquire into the expediency of addressing a memorial to Congress, praying for a grant of 500,000 acres of land to this Territory to be applied to the following named works of Internal improvement, to wit:
The improvement of the Fox and Wisconsin rivers;
The improvement of Rock river, and the connection of said river by canal or railroad, with lake Winnebago;
The improvement of the Pecatonica river;
And for the construction of a railroad from lake Michigan to the Miss issippi river;
Setting forth in said memorial the quantity of land to be appropriated for each of said works-and asking for authority to locate said grants at an early day.
Mr. Barber presented a petitition of citizens of the town of Finch in Jefferson county, praying a change of the name of said town.
Ordered to lie on the table.
Mr. Eastman presented the proceedings of a public meeting held in the Capitol at Madison, on the 3rd day of February inst., relative to adopting a State Government; which was referred to the following select committee, to wit:
Messrs. Eastman, La Chappelle, and Giddings.
Mr. Whiton, from the committee on the Judiciary, to which the subject was referred, made the following report:
The committee on the Judiciary, to whom was reserred the message of his Excellency the Governor, containing his objections to a bill which originated in this House, entitled a bill to incorporate the Janesville Bridge Company, report:
That the objections of the Governor to the bill, appear to be first, that it authorizes the construction of a bridge by a private corporation on the United States' road leading from Racine to Sinapee; second, that if the bridge is built by the company, the public will be deprived of a free bridge at the place where the company are authorized to erect theirs, without first paying the cost and seven per cent.interest per annum as provided for in the act; third, that “this act by which a public franchise is given to individuals, and the General Government deprived of the right to construct a bridge on its own highway, should be actually submitted to Congress before it takes effect”—and fourth, that “the terms of the act indicate that the western end of the bridge is to rest on the land of a citizen with or without his consent," and because the act “ undertakes to compel the owner to choose an appraiser to determine the value of the land in conjunction with two others, if the company and the owner cannot agree upon a price.” The Governor states that his objection to this provision is contained in a clause of the second article of the ordinance of Congress of 1787, which is as follows:
“ No man shall be deprived of his liberty, or property, but by the
judgment of his peers, or the law of the land; and should the public exigencies make it necessary for the common preservation, to take any persons' property, or to demand his particular services, full compensation shall be made for the same."
In regard to the first objection of the Governor, the committee remark that from the best information which they can obtain, they have no doubt he is mistaken as to the fact he has stated, relative to the location of the United States' road. The committee believe, upon evidence which is entirely satisfactory to them, that no United States' road has been laid out through Janesville, and that should the one be completed from Racine to Sinapee, by way of that place, for which an appropriation has been made by Congress, it is uncertain through what part of the town it will pass, or at what point it will cross Rock river. The eommittee for these reasons cannot consider that this objection is entitled to sufficient weight to prevent the passage of the bill. The second objection of the Governor, viz: That the public will be deprived of the privilege of a free bridge, during the continuance of the franchize, unless they pay for the one which the company may ereet, the committee consider to be in part answered by the fact that no United States' road crosses the river at the point where the bridge is to be built, and they cannot think the inhabitants of the county of Rock, if they should wish to have a free bridge at that place would object to paying the company the cost of theirs, and the lawful interest on that sum, as provided for in the act of incorporation.
The third objection of the Governor, the committee think entirely answered by what has above been stated--they do not intend to discuss the question whether all our laws should be submitted to Congress before they take effect, as the only reason given by the Governor, why the act under consideration should be, is as the committee believe, they have shown, founded in a mistake as to facts. The fourth and last objection of the Governor, is deserving of more consideration.
The first clause of the quotation made by the Governor, from the ordidance of 1787, is as follows: “No man shall be deprived of his liberty or property, but by the judgment of his peers or the law of the land!" The committee are of the opinion that there is nothing in the act under consideration inconsistent with this provision.
For if the act under consideration becomes a law and takes effect, it becomes of course, “the law of the land” and if it deprives any man of his property, this property will be taken by virtue of “the law of the land”—the remainder of the paragraph quoted by the Governor is as follows: “ and should the public exigencies make it necessary for the common preservation to take any person's property, or to demand his particular services, full compensation shall be made for the same.”
It is apparent that if the words just quoted are to be taken in their absolute sense, and without reference to what precedes them, no man's property could be taken for the most necessary purpose, unless the “public exigencies” demanded it "for the common preservation.” As a necessary consequence, no roads or highways could be laid over the land of a citizen without his consent, for the reason that they are designed for the public accommodation and convenience merely. The committee cannot believe this to be the correct interpretation of the language of the ordinance; they think that by a more reasonable construction the property of the citizen may
be taken for the use of the public, if “ full compensation is made for the same.”
It then only remains to be shown that whatever property will be taken by virtue of the act in question will be taken for the public use. This the committee think, is apparent from an inspection of the act itself. It true, that the act allows the corporation to take tolls for crossing their bridge, but the amount is fixed by the Legislatnre, and the intention of the act is not to benefit the corporation but the public; and it is apparent that the effect will be greatly to promote the public accomodation and convenience. The tolls allowed by the Legislature are supposed to be a fair remuneration to the corporation for the cost of the bridge and no more. The committee can see no difference in principle between taxing the public for the cost of the bridge in the way proposed in the bill, and in taxing them for the gross amount at once, and collecting the tax in the usual mode.
That the intention of the act is to benefit the public, and that consequently the private property which will be taken by virtue of its provisions will be taken for the use of the public, is further apparent by the 10th section which authorizes the county of Rock to purchase the bridge at its cost, and the lawful interest thereon.
For the reasons above stated, the committee are of opinion that the bill ought to pass, and regret extremely that the Governor should have had any objections to it.
But there is another subject presented to the committee in relation to the bill to which they have given their most deliberate attention, and this is the inquiry whether it is not now a law, notwithstanding the veto of the Governor. The
power of the Governor, in relation to the veto, is contained in the act of Congress, approved March 3d, 1839, and is as follows:
“ Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled:
“That every bill which shall have passed the Council and House of Representatives of the Territories of Iowa and Wisconsin, shall, before it becomes a law, be presented to the Governor of the Territory; if he approve he shall sign it, but if not he shall return it with his objections, to that house in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If, after such reconsideration, two-thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered; and if approved by two-thirds of that House, it shall become a law. But, in all such cases, the votes of both houses shall be determined by yeas and nays; and the names of the persons voting for and against the bill, shall be entered on the journal of each House respectively. If any bill shall not be returned by the Governor within three days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the Assembly by adjournment prevent its return, in which case it shall not be a law."
It will be perceived by the act quoted, that if the Governor does not return a bill within three days, (Sundays excepted,) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the assembly by adjournment, prevent its return, in which case it shall not be a law. The certificate of the Secretary of the Council, hereunto annexed, shows that the bill in question was presented to the Governor on Friday, the 21st of Janu