3. It seems to your committee, dangerous to come to the relief of officers known to the law, when nothing is plead in excuse, but negligence.

4. The relief sought, involves the legalizing of the future collection of taxes, not now collectable by existing laws, which principle trenches close upon the decision of the house, which seems to have been, that no act of the legislature can legalize illegal acts, when individual interests are involved.

Your committee, therefore, ask to be discharged from the further consideration of said petition.

In behalf of the committee.

C. G. HAMMOND, Chairman.

[No. 70.]

Report of the committee on claims, in relation to the claim of the River Raisin and Lake Erie railroad company.

The committee on claims, to whom was referred the claim of the River Raisin and Lake Erie railroad company, respectfully report:

That the River Raisin and Lake Erie railroad company was incorporated by an act of the legislature of this state, approved March 20, 1836, by which they were authorized to lay out and construct a railroad from La Plaisance bay, on Lake Erie, in the county of Monroe, through the city of Monroe and the village of Dundee, in the said county, until the same should intersect the Erie and Kalamazoo railroad, at Blissfield, in the county of Lenawee; and also, to lay out and construct several branches to said road, among which was one from the city of Monroe, to the head of ship navigation, on the River Raisin.

The company proceeded, soon after its incorporation, to construct their road, and were, as is said, diligently engaged in the prosecution of that object, when, in the year 1837, the legislature passed an act entitled "An act to provide for the construction of certain works of internal improvement, and for other purposes," approved on the 20th March, of that year. The act last mentioned, contains certain provisions for the purchase by the state, of such railroad or railroads, as may by the location of any state railroad, be materially injured, or reduced in value. The provisions above alluded to, are exceedingly liberal and comprehensive, and are contained in the third section of the act last mentioned, to which reference is respectfully made.

The River Raisin and Lake Erie railroad company contend

that the location and construction of the Southern railroad, which is a part of the system of internal improvement set on foot by the act of March 20, 1837, interfered with the railroad and materially injured the stock, and depreciated the property of said company, and by petition, at the last session of the legislature, applied for redress. The subject was referred to the standing committee of the house, of which the hon. H. T. Backus was chairman, where it underwent an examination, and whence emanated a very able and lengthy report, which may be consulted by a reference to house documents for 1840, vol. 2, page 188; in that document it is contended in behalf of the company, that the Southern railroad interfered with the rights of the company, by running in the same direction as the road of the company throughout its whole length, and reaching far beyond it, as well as by the location of a part of the Southern railroad, at a point on the River Raisin, which is declared to be the head of ship navigation in said river, and the same point at which said company had previously selected for the termination of their branch road leading to Monroe, and thence running said Southern railroad on the identical line previously surveyed and selected, for the branch road of said company, the entire distance to the city of Monroe, aforesaid.

The act of 1840, seems, in the judgment of your committee, to have admitted and acknowledged the justice of the claim, to some extent; and the commissioners appointed by and under it, have, as appears by their report made to the house of representatives, at its present session, (see house document No. 57,) offered and allowed the company the sum of thirtytwo thousand five hundred dollars, for all that portion of railroad constructed by the said River Raisin and Lake Erie railroad company, lying between the city of Monroe and the warehouse of the La Plaisance bay harbor company; a distance, as appears by the estimate of the engineer employed by the commissioners, of three miles three thousand two hundred and thirty feet; and also, all the chartered rights, privileges, &c., belonging thereto, as well as the release, by the company, of all claims for damages, that may have arisen by reason of the location of the Southern railroad. This amount has been accepted by the company, and the auditor general has drawn his drafts therefor, to be paid, as the law of 1840 provides, out of the instalments of the five million loan falling due in 1843. In the article of acceptance furnished by the company to the commissioners, there is a reservation of the right to claim interest of the state, until the said above mentioned amount is paid; and also, to claim payment of the balance, over and above the amount allowed by the commissioners, which the company conceived itself entitled to, under the act

of 1840; provided, the legislature, upon application thereto, shall be of opinion that the commissioners have misconstrued the true intent and meaning of the act. This reservation scems to constitute the grounds, and the only grounds, of the claim under consideration, which is for an amount of between eighteen and twenty thousand dollars. Now, there has either been a settlement by the commissioners on the part of the state, with the company, or there has been no settlement; if there has been a settlement, then the company has no further claim on the state for damages; if there has been no settlement, then the whole matter is open for the action of the legislature, in such manner as its sense of justice, and the public interest may dictate. The act of 1840, confers no right upon the commissioners to make any payment to the company, unless a settlement is made, and the fact of a payment having been made, is, in the opinion of your committee, prima facie evidence of such settlement, and should be conclusive, unless reasons strong, clear and convincing, should be presented, proving that some great error had been committed, or palpable injustice done to the parties.

The great delay and expense attending legislative action, upon so difficult and intricate a question, furnishes additional arguments why it should not again be thrust upon the legislaturę, unless for the reasons above referred to. Do such reasons exist? and if they do exist, where are they to be found? Your committee have attentively examined the petition of the company, presented at the present session, and referred to your committee, and the gist of the whole matter seems to lie in the supposition, or rather, allegation of the claimants, that the commissioners did not, as, in the opinion of the company, they should have done, take the act of 1837 in its unlimited sense, as their guide; but introduced into the consideration of this question of settlement, the qualifying terms used in the act of 1840, to the effect that the company should be allowed such sum as in "justice and equity it ought to have," &c. In short, that the commissioners misconstrued the true intent and meaning of the act of 1840. Well, if the commissioners did misconstrue the act of 1840, to the injury or disadvantage of the company, why did the company accept the offer of settlement made to them? That they did accept the offer so made, is pretty conclusive evidence, in the estimation of your committee, that it was considered, by the company, to have been fair and reasonable. But did the commissioners misconstrue the act of 1840? Your committee think not. It is true, that the act of 1837 provides for the payment of cost and interest of any railroad that may be injured, or rendered of no value by reason of the location of any state railroad. But it is equally true, that the company have; for a considerable length of time,

enjoyed the use of the road, and other property purchased, during which time a depreciation of value, consequent on the perishable nature of all railroads, and property of a similar kind, has been in progress, and should be taken into consideration; if this were not done, it is perfectly evident to your committee, as, indeed, it must be evident to any one who will for a moment reflect upon the subject, that it would have been in the power of the company to have retained the use of the road until it was quite decayed and worn out, and then, upon the same principle, have demanded payment of original cost and interest; a proposition too absurd to be entertained. If, then, the commissioners have not misconstrued the act, but have proceeded according to its spirit, and the intention of the legislature, that portion of the claim of the company, which is for the excess of cost of so much of railroad and other property purchased by the commissioners, on behalf of the state, does not, in the opinion of your committee, constitute sufficient grounds for further legislative action on the subject.

In reference to that portion of the claim which is for interest on the amount allowed by the commissioners, from the date of its allowance, until the same shall become due and payable, your committee are less settled in opinion, and are less able to decide. If it may with propriety be assumed, that the amount allowed by the commissioners was fair and equitable, then it would seem to follow, that the interest accruing thereon, until the same shall be due and payable, should enure to the benefit of the company. But is the amount so allowed, fair and equitable? In explanation of this branch of the subject, your committee have before them, the written detailed estimate of the chief engineer, in the employ of the state, made at the instance of the commissioners, from which they have, as appears by their report, (house document, 51,) after making the appropriate reductions for the necessary repairs needed to said road, deducted the sum of thirty-two thousand five hundred dollars, as the amount that ought to be allowed, "without reference to a prospective payment;" thus leaving it to be inferred, that interest ought to be added, though they have not, in their opinion, been invested with authority, by the law under which they acted, to grant it.

In the course of the investigation of this matter, your committee have found it necessary to examine, and have examined, the deed of conveyance from the River Raisin and Lake Erie railroad company, and it has occurred to your committee from such examination, that said deed was not as full and explicit as the future wants and interests of the state might require.

Accompanying the papers relative to this subject, there is also a deed from the La Plaisance bay harbor company, to which allusion is made in the report of the commissioners here

tofore referred to, conveying one-half of a certain bridge and the right to use the same for running the cars thereon, &c.; and also, the right to lay down and construct as many railroad tracks through the land and premises of the said company, as may be for the interest and convenience of the state, with certain conditions attached thereto, which are, in the opinion of your committee, highly exceptionable. The act of 1840, authorizing a settlement, &c., with the River Raisin and Lake Erie railroad company, confers no power upon the commissioners appointed by and under that act, to purchase any other property, or to settle with any other company than the one in the act named; and if, on a full inspection and examination, the commissioners were of opinion that the legislature had acted in the premises without a correct knowledge of the localities; it is to your committee a source of regret that they did not refer the whole matter back to the legislature for their further instructions, rather than to have done that, however well meant, which was not provided for in the act which defined their duties. In presenting these views, the committee deem it due to themselves to declare that they do not in the slightest degree intend to impugn the motives, or to question the integrity of the commissioners, who have, doubtless, done in the matter, that which they deemed would conduce to the best interests of the state.

In conclusion, your committee, on a review of this difficult and intricate question, respectfully recommend the adoption of the following joint resolution, and ask to be discharged from the further consideration of the subject.

Resolved, by the Senate and House of Representatives of the State of Michigan, That the attorney general be, and he is hereby required to view and examine, in connection with the acting commissioner of internal improvement, the railroad and other property purchased by the state from the River Raisin and Lake Erie railroad company, and to investigate the title acquired by the state, from said company, and to report to the next legislature, the result of such investigation and examination, together with his opinion of what further legislation, if any, is necessary to secure the interests of the state, and the rights of said company.

All which is respectfully submitted.

JAMES B. LARUE, Chairman.