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and the corporation, and places under legislative control all rights, privileges and immunities derived by its charter directly from the State. Rights acquired by third parties, and which have become vested under the charter in the legitimate exercise of its powers, stand upon a different footing; but of such rights it is unnecessary to speak here."

A question which seems identical with this in principle has already been decided by this court, in the well-known case of Curran vs. The State of Arkansas, 15 Howard, 304, already cited in another connection.

The State of Arkansas owned the entire stock of the Bank of Arkansas, and was its creditor for a large amount. The legislature passed an act, appropriating all the property of the bank to the payment of debts due the State, leaving no means of paying private creditors. The question of the validity of that act came before this court, and it was held unconstitutional, because impairing the obligation of a contract.

The court, after stating the contract of the bank with its billholders, proceeds in its opinion as follows:

Such were these contracts and their obligations; and it would seem to require no argument to prove that a law authorizing and requiring such a corporation to distribute its property among its stockholders, or transfer it to its sole stockholder, leaving its bills unredeemed, would impair the obligation of the contracts contained in those bills. The cases of Bronson vs. Kinzie et al., 1 Howard, 311, and McCracken vs. Hayward, 2 ibid, 608, which will be more particularly averted to hereafter, leave no doubt on that point. Indeed, it has not been attempted to maintain that such a law, operating on the property of a mere private corporation, whose charter the legislature could not repeal, would be valid. But it is argued that this is a different case; that the legislature has power to destroy the corporation, and thereupon its contracts are no longer in existence, and can not be enforced against the property of the corporation, which, upon the repeal of its charter, reverts to the grantors of its lands and escheats, so far as it is personalty, to the State, and that if it be in the power of the State thus to destroy the remedies of creditors, by repealing the charter, their rights must be considered to be entirely subject to the will of the State, and no law can impair the obligation of their contracts, because subjection to any law which may be passed, belongs to the very existence of such contracts. Or, to express the same ideas in different words, that the State created and can destroy the corporation and all its contracts, and, as it can thus destroy them by repealing the charter, it can modify, obstruct, and abridge the rights of creditors and the obligations of their contracts, without repealing the charter.

"Neither these premises, nor the conclusion deduced from them, can be admitted.

"This banking corporation having no other stockholders than the State, it is not doubted that the State might repeal its charter; but that the effect of such a repeal would be entirely to destroy the

executory contracts of the corporation, and to withdraw its property from the just claims of its creditors, can not be admitted."

It will be perceived the court expressly admits that, the bank being wholly owned by the State, its charter could be repealed, and of course could be altered. The State of Arkansas had then at least all the power over the charter which the State of Wisconsin has over the charters of railway companies which it has incorporated. The parallel, thus far, is complete. The State of Arkansas undertook to appropriate the property of the bank to the payment of a debt due to itself-that is, to the people. The State of Wisconsin has undertaken to appropriate the property of the railway company, or its income, which is the same thing, to the benefit of the people, without even the excuse which Arkansas had-that there was a debt due the State. Arkansas took the property under pretense of paying a debt due to itself. Wisconsin takes the property without any pretense at all, except that of power. This court interfered, and said the State of Arkansas could not do this as against the creditors of the bank. Why should not the same thing be said in reference to the State of Wisconsin?

Mr. Chief Justice Ryan, in the opinion already cited, says, in reference to this position, on page 35 of his opinion:

"These defendants took their franchises, and their creditors invested their money, subject to the reserved power, and suffer no legal wrong when that is exercised."

Equally true was it that the creditors of the Arkansas bank took the notes of the bank, subject to the power of alteration or repeal, and that position was taken in the argument of that case, as shown in the extract from the opinion above given. Nevertheless, this court held this power could not be so exercised as to take from the bank the means of paying its creditors.

It is said by Mr. Chief Justice Ryan that the obligation of the railway company to its creditors remains, and is not impaired by lessening the means of payment.

The same position was taken by Mr. Justice Daniel, in his dissenting opinion in the Arkansas case, but the majority of the court, speaking through Mr. Justice Curtis, held otherwise, and said:

"The obligation of a contract, in the sense in which those words are used in the constitution, is that duty of performing it which is recognized and enforced by the laws; and if the law is so changed that the means of legally enforcing this duty are materially impaired, then the obligation of the contract no longer remains the same. (Page 319.)

A very similar question arose in the late case of Baring vs. Dabney, 19 Wallace, 8.

In that case, an act of the legislature of South Carolina in regard to a State bank-in which the State was the sole stockholdercame under review, and the principles announced in Curran vs. State of Arkansas were re-affirmed.

The case of Von Hoffman vs. city of Quincy, 4 Wallace, 548, is also strikingly analagous to the case at bar.

The city of Quincy, in Illinois, had incurred a large indebted

ness, by subscription to railway stock, for which it had issued its bonds.

By the law in force when the bonds were issued, the city had power to levy and collect a special annual tax sufficient to enable it to pay the annual interest on any bonds it might issue for railway purposes. Subsequently to the issuing of the bonds, the legislature passed an act limiting the rate of taxation for the city. The revenue raised, under the new law, was not sufficient to enable the city to pay the interest on its bonds, after meeting all the expenses of municipal administration. Thereupon the holders of certain of these bonds, having obtained jndgment, applied to the circuit court of the United States for a mandamus to compel the city to levy a special tax sufficient to pay the judgment. The city answered, setting up that it had levied and collected all the taxes which its charter, as amended, would permit.

We pause here a moment to note the almost exact parallelism between that case and the one at bar. In that case, the legislature of Illionis had all the power to alter or repeal the city charter, the corporation being public, that the State of Wisconsin can have under any construction, to alter or repeal a railroad charter. It exercised its power in the same way that Wisconsin has sought to do. It limited the rate at which the municipal corporation should tax its citizens. The State of Wisconsin has attempted to limit the rate at which the railway corporation may charge the public for services rendered. A creditor of the municipal corporation appealed to the courts, and asked that this attempted limitation of the city's power should be pronounced invalid, because it impaired the obligation of his contract. A creditor of the railway corporation now makes a similar appeal. In the former case, this court held the limitation invalid. Must it not do so in the case at bar?

It is true, in that case, the creditor did not come to the courts until the city had actually defaulted as to its interest. In this case, the creditor has not waited until an actual defalcation has occurred. But the question in the two cases is the same. It is merely brought before the court by different methods. If the Wisconsin act would be held invalid after the railway company had defaulted in its interest, it must be held equally so before such defalcation. It is the principle of the act that is in question. Its validity must depend on that, and not upon events subsequently to occur. If the railway company, rather than destroy its credit, borrows money for the payment of its interest, the fact of payment does not change the character of this act. In the case cited, the court said:

"It is equally clear that where a State has authorized a municipal corporation to contract and to exercise the power of local taxation to the extent necessary to meet its engagements, the power thus given can not be withdrawn until the power is satisfied. The State and the corporation, in such cases, are equally bound." (Page 554-5.)

I respectfully submit that no solid distinction can be drawn between that case and the case before the court.

Hawthorne vs. Calef, 2 Wallace, 10, and Woodruff vs. Trafnal, 10

Howard, 190, are also cases in which it was held that an amendment of a charter could not impair the rights of creditors of a corporation.


The act of the Wisconsin legislature under consideration is roid, because it is a regulation of inter-state commerce.

The 18th section of the act of the Wisconsin legislature is as follows:

"Sec. 18. Nothing contained in this act shall be taken as in any manner abridging or controlling the rates for freight charged by any railroad company, in this State, for carrying freight which comes from beyond the boundaries of the State, and to be carried across or through the State; but said railroad companies shall possess the same power and right to charge such rates for carrying such freight as they possessed before the passage of this act."

The court will observe, the act being general, and the exception being only as to freight coming from beyond the limits of Wisconsin, and traversing the State to some point without its limits. it of course follows that as to all freight shipped within the limits of Wisconsin, and destined to a point beyond its boundaries, the act applies. Whatever the object of this provision may have been, it is directly in conflict with the Constitution of the United States, inasmuch as it is a regulation of inter-state commerce. On this point this court has spoken, and it is only neccessary to quote the language of the decision.

In the case entitled "State Freight Tax," 15 Wallace, 232, the court said:

"If, then, this is a tax upon freight carried between States, and a tax because of its transportation, and if such a tax is in effect a regulation of inter-state commerce, the conclusion seems to be inevitable that it is in conflict with the Constitution of the United States. It is not necessary to the present case to go at large into the much debated question, whether the power given to Congress, by the Constitution, to regulate commerce among the States is exclusive. In the earlier decisions of this court, it was said to have been so entirely vested in Congress that no part of it can be exercised by a State. It has, indeed, often been argued and sometimes intimated by the court that, so far as Congress has not legislated on the subject, the States may legislate repecting inter-state commerce. Yet, if they can, why may they not add regulations to commerce with foreign nations beyond those made by Congress, if not inconsistent with them, for the power over both foreign and inter-state sommerce is conferred upon the Federal Legislature by the same words. And certainly it has never yet been decided by this court that the power to regulate inter-state, as well as foreign commerce, is not exclusively in Congress. Cases that have sustained State laws, alleged to be regulations of commerce among the States, have been such as related to bridges or dams across streams wholly within a State, police or health laws, or subjects of a kind

red nature, not strictly commercial regulations. The subjects were such as in Gilman vs. Philadelphia, (3 Wallace, 713), it was said. 'can be best regulated by rules and provisions suggested by the varying circumstances of different localities, and limited in their operation to such localities, respectively.' However this may be, the rule has been asserted with great clearness, that whenever the subjects over which a power to regulate commerce is asserted are in their nature national, or admit of one uniform system or plan of regulation, they may justly be said to be of such a nature as to require exclusive legislation by Congress. Surely transportation of passengers or merchandise through a State, or from one State to another, is of this nature."

In another part of the opinion, the court speaks as follows:

"Nor is a rule prescribed for carriage of goods through, out of, or into a State, any the less a regulation of transportation, because the same rule may be applied to carriage which is wholly internal. Doubtless a State may regulate its commerce as it pleases. If a State chooses to exact conditions for allowing the passage or carriage of persons or freight through it into another State, the nature of the exaction is not changed by adding to it similar conditions for allowing transportation wholly within the State.'

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No language of ours can add force to the above quotations. The court says, in terms: "Surely transportation of passengers or merchandise through a State, or from one State to another, is of this nature "that is, of such a nature as, in the language of the court, "to require exclusive legislation by Congress." This act, in terms, regulates the transportation of freight from within the State of Wisconsin to points without the State, and is therefore void, under the express language of this decision. This point is decisive of the invalidity of this law, and we can not add to its weight by further


We do not know that the jurisdiction of the court will be questioned. It is settled by the following cases: Osborn vs. U. S. Bank, 9 Wheat., 738; Dodge vs. Woolsey, 18 How., 331.

In connection with the act under consideration, we wish to bring to the cognizance of the court another act, which went through the legislatuae of Wisconsin side by side with the one now drawn in question, and became a law on the following day. We insisted, in the case decided by the supreme court of Wisconsin, that this act worked a repeal of the act first passed. That court held otherwise, and upon this question we suppose this court will be governed by that ruling. We bring this act before the court, because it shows how railway companies in Wisconsin may be confined within reasonable charges by constitutional legislation. and because it is a legislative recognition of the fact that what are reasonable rates is a judicial question. It also shows that there were intelligent men in the legislature, who had no faith in the validity of the first act, and therefore insisted upon the passage of the second.

This second act contains various provisions in regard to railways, and declares that any railway company, which shall charge more than a fair and reasonable rate of compensation, shall be deemed

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