Petition for upholding the 1838 law that gives rights and powers to the Milwaukee & Rock River Canal Company

Memorial of the Milwaukee & Rock River Canal Company

Mr. Lonstruct

Ordered to be laid on the table Dec 9th

Referred to the Com on internal improvements.

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, AD 1838 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 mixed estate" without restricting or restraining them from the purchase of any particular property either of a real or personal character; and in the sixth section it is enacted "that said corporation shall have the right to construct, maintain and continue a navigable canal or slack water navigation from the town of Milwaukee to Rock river on such routes and of such dimensions and to terminate at such point as shall be determined on by said corporation", without in any manner restricting them in relation to the persons whom they might employ to execute said work.

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 preceding 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 employ.

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 consequently 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 stock-holder of the canal company or engineer 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 therefor," which provision your memorialists conceive to be in violation of their rights, injurious to the progress of the work, and injurious to the best interests of the country, as connected with the advancement and early accomplishment 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 work must languish. Your memorialists conceive that the true interests of a country are to be committed by bringing out the energies of her own people and directing them to subjects of general utility, instead of paralyzing them by such restrictions as tend to dampen their energies, and arrest or retard their action.

Some of our most enterprising citizens have been restrained from taking the stock of the company, who were anxious to be 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 to do this least 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 cannot 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 something 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 performed out of said canal fund." It appears to your memorialists that this provision secures effectually the interests of the Territory without encroaching on the rights of the company, and without operating to the prejudice of the enterprise.

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 duties required and possess as high responsibility as any other bidder, 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 opposite course of policy, by a system of unnecessary restrictions much injury may be done without any contravening good being effected as any effect 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 enterprising citizens who came forward in the commencement of this measure, subscribed stock, and invested their means to considerable extent, were settlers on the lands which afterwords 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 kind, many of which could if necessary be pasteurized, 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 allowing 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 impolite 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 at any sale made in pursuance of the above provision of the act of