ernor, the bank has had the honor to lend to the state ten thousand dollars to keep up its credit in New York. * * * Meantime, it seems but common justice to give the bank the benefit of the facts I have related. (Signed) Very respectfully yours, &c., C. C. TROWBRIDGE. The committee respectfully lay before the Senate, the information by them obtained, that such action may be taken (if any further should be considered necessary) as shall be deemed most proper. M. SHOEMAKER, I. P. CHRISTIANCY, 1850. No. 22. [No. 22. ] COMMUNICATION from the Attorney General, relative to Plank Roads. To the Senate.: OFFICE OF THE ATTORNEY GENERAL, Lansing, February 26th, 1850. I have the honor to acknowledge the receipt from the Secretary of the Senate of the following resolution : "Resolved, That the Attorney General be instructed to furnish the Senate, at as early a day as practicable, his written opinion as to the power of the Legislature to grant to any incorporated plank road company the right to build their road upon any road established heretofore as a United States military road, or upon any other public road." The question submitted by the above resolution I regard as firmly settled by adjudication, but before referring to the decisions applicable to the subject, a few preliminary considerations may aid in placing the matter in a clearer light. In the first place, I think there is no distinction, so far as this question is concerned, between what are called "United States military roads," and the other public highways of the State. It will be found by looking into the acts of Congress authorizing the construcof these "military roads," so called-as the Chicago, the Grand River, the Saginaw and the Gratiot roads, respectively-that they are not there called military roads, nor constructed for exclusive military purposes. They are simply called "roads," and are evidently designed for all the purposes of ordinary highways. This appellation of "military roads" is, therefore, merely of popular origin, derived probably from the fact that they generally led to or from some important military post. There is nothing in the character or objects of these roads which distinguish them from any other public roads established by authority of law. During our existence as a Territory, the United States undoubtedly held sovereign jurisdiction over these roads as public highways. But this authority and jurisdiction was wholly remitted to and vested in the people of this State npon the admission of Michigan into the Union. Navigable waters are at common law public highways; and this principle was incorporated into the ordinance of 1787 for the government of the north-west territory. Yet it has been clearly held, both in the courts of this State and in the Supreme Court of the United States, that the sovereign municipal jurisdiction over the navigable waters embraced within a State, is, on its admission into the Union, fully remitted to it from the United States. [1 Walker's Ch. R. 155. 3 How. R. 212.] The same principle unquestionably applies to all public roads which were established by the United States during our territorial organization. All the rights of jurisdiction and interest which were then possessed by the United States, by virtue of its supreme sovereignty, is now vested in the People of this State. This suggests the inquiry, what is this interest? In the establishment of public roads the People do not acquire the fee of the lands over which the road passes. They only acquire a certain interest, which is called the "right of way," which carries with it such rights over the land as are necessary to the construction, use and maintenance of the way. But this interest, such as it is, is vested exclusively in the People. It is the property and franchise of the Public. No individual has a separate or vested private interest in it. The adjacent proprietor has no more separate interest in it than the citizen living in the most distant quarter of the State. Encroachments on this right can be redressed only in the name of the whole People. And it has been held that the owner of adjacent lands had not such an individual interest in a road as would entitle him to appeal from an order of court discontinuing the road. [1J. J. Marsh. R. 218. 1 Bibb R. 292.] This right, or interest in highways, thus vested exclusively in the People, must of course be subject to their regulation. The Legislature represents and acts for the People And it is from this source, delegated by either general or special laws, that county or town offi cers, or other subordinate agents derive all their power and control over highways. The Legislature can control or regulate this public interest at its discretion. Acting for the People, it can, at its pleasure, discontinue a road, and so surrender all their right in it; or it can delegate the custody, maintenance and regulation of the right to county officers, to town officers, to a particular agent, or to a private corporation. The only limit to the exercise of this power arises from the very nature of the right vested in the People, namely: that, as it was acquired for the express purposes of a public highway, it cannot be diverted from that use. Such a diversion would undoubtedly work a forfeiture of the right itself. The question then arises whether the grant to a company of the right to construct a toll plank road on an existing public highway, is an excess in the exercise of legislative power under the rule above laid down. It seems to me clearly not. For it is well settled that a turnpike (from which a toll plank road does not differ,) is a public highway. [16 Pick. R. 175. 20 Johns. 742.] The object of the Legislature in granting to corporations the right to maintain toll roads on existing highways, is public benefit. Private benefit may indeed accrue incidentally, and may be the indispensable motive in inducing corporators to accept the grant, but this is not the object or motive of the Legislature. The object usually proposed is the construction of better roads than can otherwise be secured. Nor is it any objection that it converts what are called free roads into toll roads. For in strictness no roads are free to all; some form of taxation is necessary to their maintenance. This taxation has to be borne by some one. It may, at the pleasure of the Legislature, be diffused or concentrated-imposed on the State, county or townupon the property or polls of the inhabitants, or both-upon the adjacent proprietor, as was the practice in Michigan at a very early day, and as is now the policy in some cities-or the roads may be maintained by tolls collected by agents of the State, or by tolls taken by a private company under the authority of a legislative grant. Which of these modes is the wisest and will best promote the general welfare, is necessarily left to the discretion of the Legislature. The very point in question has, however, been expressly decided in Vermont, in Massachusetts, in Connecticut and in Tennessee, in relation to ordinary turnpike roads, and more recently in New York in relation to plank roads. It has been held that the Legislature can grant to a corporation the right to build its road on an existing highway, and to maintain the same by tolls. It may do this either by a specific grant of a particular highway, or by general authority to a corporation to locate its line on existing roads. It may make the grant unconditional, or it may attach to it any condition it sees fit: as, for instance, upon gaining the consent of certain town officers, or upon payment of a value to be appraised. [2 Pick. 41. 3 Pick. 327. 6 Met. 522. 11 Vermont R. 198. 18 Conn. 32, 451. See also 17 Conn. 464. 4 Humph. 315. 3 Barb. Sup. Ct. R. 466.] The last case cited may require a single remark. The case arose under a statute which authorized a plank road corporation to take an existing road "by appraising the value of the public interest in the road and paying the same to the commissioners of highways." But it has been already clearly shewn that this "public interest" is vested exclusively in the sovereignty, or, in other words, in the People, and that the People can make any disposition of it which is consistent with the nature of the right. They can grant it either with or without a money consideration. The benefit to the public to be derived from an improved road, is as good a consideration as either a stipulated or appraised money-price. It seems to me therefore, clear, both upon principle and authority, that the Legislature may lawfully grant to an incorporated plank road company the right to build their road on any public highway. I have the honor to be, Very respectfully, &c., GEO. V. N. LOTHROP, |