Document G.

MEMORIAL OF THE MILWAUKEE AND ROCK RIVER CANAL.

To the Honorable the Council and House of Representatives of the Territory of Wisconsin:

The memorial of the Milwaukee and Rock river canal company respectfully represents: That an act to incorporate said company was passed by the Honorable Legislature, and approved on the fifth day of January, A. D. 1938, in the first section of which act it is enacted, among other rights and powers conferred, that said company "may purchase, hold and convey real, personal, or mix. ed estate," without restricting or restraining them from the pur. chase of any particular property, either of a real or personal character; and in the sixth section it is enacted "that the said corporation shall have the right to construct, maintain and con. tinue a navigable canal, or slack water navigation, from the town of Milwaukee to Rock river, on such routes, and of such dimen. sions, and to terminate at such point as shall be determined on by said corporation," without in any manner restricting them in rela tion to the persons whom they might employ to execute said work.

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That an act was passed by Congress, approved on the 18th of * June, 1838, in the ninth section of which it is enacted, "that the assent of Congress is hereby given to the act of the Territorial Legislature of Wisconsin, entitled, An act to incorporate the Milwaukee and Rock river canal company,' subject to the prece ding modifications and the following provisions;" none of which modifications or provisions, however, had any reference to the rights of the company in the purchase and sale of property, or in the selection of contractors, or other agents, whom they might em ploy.

That any subsequent act of the Legislature, for the purpose of

repealing, withdrawing, or in any manner modifying the rights and privileges thus granted, and thus confirmed, would be repugnant to the rights of the stockholders, clearly illegal, and conse quently null and void.

Your memorialists would further respectfully represent, that an act was passed by your honorable body, entitled, "An act to provide for aiding in the construction of the Milwaukee and Rock river canal," approved February 26th, 1839, in the 22d section of which, it is enacted, that "no canal commissioner, director, or stockholder of the canal company, or engincer employed on said canal, shall purchase, or be interested in the purchase of any of the lands authorized to be sold by virtue of any of the provisions of this act, nor shall be interested in any contract for the construction of any portion of the canal, or furnishing materials there. for," which provision your memorialists conceive to be in viola tion of their rights, injurious to the progress of the work, and in. jurious to the best interests of the country, as connected with the advancement and early accomplish nent of that important public

measure.

This provision presents a complete bar to the citizens of our own country in subscribing to the stock of the canal, by which act they apprehend that they will be deprived of the ordinary rights of citizens, in the purchase of land, and in furnishing materials and - supplies for the canal. The consequence is, that the stock must be disposed of in a foreign market, or the whole must languish. Your memorialists conceive that the true interests of a country are to be consulted by bringing out the energies of her own people, and directing them to subjects of general utility, instead of paraly. zing them by such restrictions as tend to dampen their energies, and arrest or retard their action.

Some of our most enterprizing citizens have been restrained from taking the stock of the company, who were anxious to do so, for the reason that if the work should be commenced, they wished to take and be interested in contracts. Many of our citizens would be willing to take a few shares each, and pay the amount of such shares by constructing portions of the canal, and, in this way,

give impetus to a work in which they are all alike interested; but they dare not do this, lest they should be cut off from the privilege of taking other contracts, in the further progress of the work from the circumstance of their holding stock in the company. We can not believe that it was the design of the Legislature to give a death blow to this canal, but we are clearly of opinion that such is the effect of the foregoing provision; and that if the design had been to defeat it entirely, a more effectual method could not have been adopted. We presume the design of the Legislature was only to exercise a degree of cautiousness, in not placing too much power in the hands of the company, and that it was no part of its design to defeat the work.

Is it not, however, possible to be over cautious? May we not carry our caution so far as to do nothing for fear of doing some thing wrong? Is not the interest of the Territory sufficiently well guarded in the 16th section of the last mentioned act, where it is expressly enacted, that "the acting commissioner shall, under the direction of the board, examine and approve all contracts made with the canal company for the supply of materials, and the performance of labor, and in case the canal company shall refuse to submit to such examination and approval, or in case such contract shall not be approved by the board, no money shall be paid over to such contractor for materials furnished, or labor per. forted, out of said canal fund." It appears to your memorialis's that this provision secures effectually the interests of the Territo ry, without encrouching on the rights of the company, and without operating to the prejudice of the enterprize.

It might so happen that the lowest and best bidder for work, at a public letting, would be a stockholder; and it might also happen, that such stockholder would be as competent to discharge the du ties required, and possess as high responsibility as any other bid der; and, in case this should happen to occur, would there not be an obvious propriety in giving the commissioners a discretionary power, on behalf of the Territory, in the approval or rejection of such contract? Your memorialists are clearly of opinion' that

such discretionary power, which is fully conferred by the said 16th

section to the officers of the Territory, will effectually guard the interests of the Territory, without disfranchising the people of any portion of the country of their common rights and privileges, and promote, at the same time, the great objects of the country, by affording facilities in the execution of the work; while, by an op. posite course of policy, by a system of unnecessary restrictions, much injury may be done without any countervailing good being effected as an offset or compensation.

Another injurious effect, so far as regards the canal and its interests, has grown out of the restrictive provision before referred to, relative to the purchase of lands. Many of our most public spirited and enterprizing citizens, who came forward in the commencement of this measure, subscribed stock, and invested their means to a considerable extent, were settlers on the lands which afterwards, by act of Congress, were ceded to the Territory, and had on those lands very extensive improvements. In order to avail themselves of the provisions of the act of February last, they were compelled to sell their canal stock, by which means alone they would be entitled to purchase their lands. It will be obvious, from instances of this kiad, many of which could, if necessary, be particularized, that no good has resulted, nor can it result to the Territory by this prohibitory provision, but that much injury has resulted to the canal, and much inconvenience to the people. So far as regards the sale of the lands the law was inoperative-for by selling their canal stock-or by giving it away, the people could enter their lands; but it has proved injurious in the highest degree to the canal, by discouraging the people from taking any interest in it.

In addition to the facts here stated,showing the impolitic tendency of the prohibitions before referred to, we will merely add that it is in direct violation of the act of Congress making the grant; for in addition to the general rights of the corporation, before clearly shown, we find a specific provision in the 5th section of the act of grant, in which it is enacted, "that no part of the said land shall be sold for less than two dollars and a half per acre, nor any sale made until after three months' public notice thereof, and to the

highest bidder." Now, if any sale made in pursuance of the above provision of the act of Congress, a stockholder in the canal company should happen to be the "highest bidder," would it be competent for the Legislature, or any officer under the govern. ment, to say that such highest bidder" should not have the land? Would the sale be a legal one, if the Register and Receiver were to strike it off to a lower bidder? On this subject we presume there can be no difference of opinion, and the consequent impro priety of leaving such a provision on our statute book is appa

rert.

We, therefore, pray your honorable body to repeal so much of the 22d section of the "Act to provide for aiding in the construc. tion of the Milwaukee and Rock river canal," as is contained in the foregoing extract from the 22d section thereof, as being repugnant to the act of incorporation, as approved by Congress, and detrimental to the progress of the canal, and of the general interests of the country, as connected with that measure.

Your memorialists would further respectfully represent, that they have expended much time and money in securing to the Ter ritory a large and valuable tract of land, by an appropriation of the general government, for the purpose of aiding in the construc tion of this canal, to which they were authorized on the behalf of the Territory, by a provision of the 22d section of the act of incor poration, whereby it is enacted, "that in case the Congress of the United States shall make an appropriation, or donation, either in lands or money, in aid of the construction of the work by this act authorized, the right to the same shall vest in the said state (Wis consin) whenever the said transfer of the canal shall be made, and the nett proceeds of all sales of land, and the amount of all money so appropriated, or donated, shall be deducted from the amount to be paid to the said corporation, for the transfer of said works to the state, and the said corporation are hereby authorized to apply to Congress for such an appropriation in money or lauds, to aid in the construction of the works authorized by this act, as Congress in its wisdom shall see proper to grant." In pursuance of the authority thus conferred, the canal company drew up a me.