persons, and may be withdrawn, and the corporators would then be left to conduct their business in their own names, as other natural persons conduct theirs. But the right to alter, or, in other words, the right to prescribe the manner in which the corporation shall conduct its business and use its property, is limited. This matter has frequently been before our courts; and while the exact limits of this power may not have been definitely prescribed in all cases, it is distinctly settled by all the courts that have passed upon it, except the supreme court of Wisconsin, that there are limits to its exercise, and that it must be exercised in subordination to the provisions of the Constitution of the United States, and in harmony with the other provisions of the constitution of Wisconsin; that vested rights cannot be disturbed, nor can the company be deprived of its property, or the use thereof, acquired under a legitimate construction of the powers granted in the charter.

It matters not whether this reserved power is contained in the charter, a general law, or the constitution. It is equally operative in the one case as the other, and the construction and effect the

same.

1st. This provision does not dominate the other provisions of the constitution. It has no superiority over them, and must be construed in harmong with them, and in in subordination to the federal consti

tution.

The discussions of this subject have appeared to assume that this provision was superior to all others, and that it has been construed as if it stood alone, unlimited by any other clause of the constitution. Chief Justice Ryan, speaking of this power, says: "This power is limited by its own words only. Any limitation of it must come from those words." I need not say that such is not the fact.

Section 1, of article 14 of the amendments to the Constitution of the United States, provides that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life. liberty, or property without due process of law."

The Constitution of Wisconsin provides that "the property of no person shall be taken for public use without just compensation therefor." (Sec. 13, article 1.)

"The right of trial by jury shall remain inviolate." (Section 5, article 1.)

"Writs of error shall never be prohibited by law." (Section 21, article 1.)

"Every person is entitled to a certain remedy in the laws, for all injuries and wrongs, which he may receive in his person, property. or character." (Section 9, article 1.)

All these provisions of the constitution of Wisconsin are of equal force and potency. In order to test this question, let us suppose that said chapter 273 had, in addition to its other provisions, enacted that in any suit brought under its provisions, the railroad company should not be entitled to a jury trial, or that its employees should not be entitled to a writ of error on conviction under it.

Could such enactments have been sustained under this reserved power of the constitution? Of course not. But why not? Simply because the proposed alteration would be in conflict with the other parts of the same constitution. It is therefore necessary to construe these clauses together. Let us place them in apposition, and see how they will read: "All general laws or special acts enacted under the provisions of this section may be altered or repealed by the legislature at any time after their passage, provided that such alteration shall not impair the right of trial by jury,' or 'the right to a writ of error.' Again, such laws may be altered or repealed, provided that thereby "the property of no person shall be taken for public use without just compensation therefor," or "provided, that thereby no person shall be deprived of life, liberty, or property, without due process of law, or his privileges or immunities abridged."

We have already shown that by this law privileges and immunities as American citizens have been abridged, in that, we are not allowed to fix the compensation for our services which we are compelled to render. That we are deprived of our property without due process of law, in that, we are compelled to suffer its use for an inadequate compensation. That our property has been taken for an alleged public use or benefit without just compensation. In that, we are compelled to furnish our property and services for the benefit of the public, for less than a reasonable or fair remuneration. These facts stand admitted upon the record in this

case.

1st. That the compensation allowed by chapter 273, is not a reasonable or adequate compensation for the use of the property and services required.

2d. That it compels the owners of the railroads to perform all services that may be required of them, in the transportation of freight and passengers, for an inadequate and insufficient compensation, against their will.

3d. That it enforces the performance of these duties by penalties and fines against the company, and by criminal prosecutions and imprisonment against its employees.

4th. That it actually deprives the owners of all beneficial use of their property, and takes from them one million of dollars per annum, which, but for this law, they would have rightfully and properly received for the use of their property and the transaction of their business.

Can it be pretended that such an act is not an abridgment of the privileges and immunities of citizens of the United States? Does it not deprive them, not only of their property, but of their liberty even, without due process of law? The sole pretence on the part of the legislature for the passage of such an act is the public benefit, but it is a benefit conferred only by taking our private property. It is, therefore, a taking of private property for public use, without any compensation, and in violation of just as plain and imperative a provision of the constitution, as that which declares that the right of trial by jury shall remain inviolate," or that "writs

of error shall never be prohibited by law." This court cannot hold, that the legislature are at liberty to disregard the 13th section, but not the 5th, and 21st, of article one, of the Constitution of Wisconsin, in order to give full force and unlimited power to section 1, of article 11, of the same instrument. The time may come when the 5th section, even, may be revoked in aid of the rights of corporations, and the 21st is now, one of their most reliable safe-guards.All of these sections must be construed together, so as to give each its proper force and effect, and each one is limited by the others.While section 1, of article 14, of the amendments of the Constitution of the United States, is supreme over all the provisions of the Constitution of Wisconsin, and they must bow to its mandate. Hence the reserved power, cannot be so used as "to abridge the privileges and immunities of citizens of the United States or to deprive any person of life, liberty or property without due process of law."

2d. Vested rights cannot be disturbed, in virtue of this reserved power.

I am not aware that it is claimed by the advocates of this power, that vested rights can be disturbed by legislation. But they claim that no rights can become vested, in a corporation, or in favor of it, where the reserved power exists. It is claimed that in such a case a charter from the State is not a contract, but a sort of license, revocable at pleasure, and that no rights as against the State, and in favor of the corporation can ever exist. The full meaning of which, is that it is not competent for the State to make a valid contract with one of its corporations, so that it could be enforced against the State, against its will; but that the legislature, would have full authority, at any time, to put an end to the corporation and the contract, or to alter its terms by a law, altering the terms of its existence. In other words, that the State may, at all times, plead its minority in avoidance of all contracts made with chartered companies, notwithstanding that the corporation has fully performed its part of the agreement. The whole doctrine in reference to executed contracts, and the rights accruing to the contracting parties therefrom, is wholly ignored. Corporators who have performed all the conditions of their charter contract with the State, in the estimation of our opponents, have acquired no right which the legislature, in the exercise of this reserved power, is under any obligation to respect.

It is admitted that the contract entered into by the State with the corporations, so far as it relates to the formation of the corporation, its existence, and the manner of conducting the corporate affairs, is subject to alteration or repeal at the pleasure of the legislature. But so far as it relates to the property of the shareholders, to be managed by the corporation, there is a contract which is irrepealable, and which protects the property from interference and invasion by the legislature, just as effectually as the private property of an individual. This right of property, and its enjoyment and use, in the manner prescribed by the charter, becomes vested in the corporators, and cannot be disturbed by any legislative act. For

instance, the legislature grants to certain individuals the franchise to be a corporation, and to transact business in a corporate name; and they are further empowered, in that corporate name, to construct and operate a railroad, and charge for the transportation of freight and passengers such rates as they may deem just and proper. The corporators accept the franchises granted, and from the corporation construct the railroad, and engage in the business of transportation. The legislsture may at its pleasure annul the grant to exist as a corporation, or change its organization or the management of its corporate affairs, but it cannot interfere with the railroad, or deprive the corporators of its ownership, or the right to use and control it in the manner, and for the uses and purposes specified in the original grant. The rights of the corporators in property is a vested right, that cannot be disturbed by any legislative action, and the right to use, control and fix, and charge compensation for its use, inheres in the property, and is vested in the corporators just as absolutely as the right to any property vested in any individual.

The legislature of Wisconsin, granted to the original corporators, the franchise to form a corporation, to use a corporate name, and to construct or purchase and operate a railroad, and to charge such rates of compensation for the transportation of freight and passengers as they should from time to time fix and establish. This was a proposal on the part of the State to the corporators. The acceptance of this proposal by the corporators, changed it into an executory contract between the State and the corporators. By the subsequent construction and equipment of the road by the corporators, it became an executed contract, and the right to the compensation, to the enjoyment of the use and profits of their property, within the limits of the executed contract, passed from contract to grant. "The charter fixed and determined, between the State and the owners of the property, the terms and rights of enjoyment of the property, which is inseparable from, because they constitute a part of, the estate in the property; and, therefore, any substantial invasion afterwards, by the legislature of the enjoyment of the estate and vested rights therein, would be an impairment of the obligations of a contract, the violation of an estate in property, and retroactive legislation."

We admit the power of the State over the corporation, but not over the property. In that the shareholders have a vested right of property, which no legislation under the reserved power relative to corporations, can in any manner affect.

The State, by the charter, expressly granted to the corporators the right to fix and establish their own tariff of charges for the transportation of freight and passengers. On the faith and credit of the State, thus pledged, the corporators made the necessary investment and constructed the road, and in all things performed the contract on their part, relying on the faith of the State so solemnly pledged. Among honorable men such a provision would never be displaced by a tariff of rates prescribed by a legislature, after the expenditure had been made. The companies trusted to the charter as made, 22 R R C-APP.

(Doc. 15)

and have expended their money and completed the roads. But to their surprise and injury, the contract is now repudiated under circumstances, that, as between individuals would be characterized as little better than obtaining property under false pretences.

'If the legislature intended that after citizens had embarked their private fortunes in one of these gigantic enterprises on the faith of this prescribed right of enjoyment, all the estate and ownership in it that was of any value as property was left to the caprice of the majority of the legislature at each session, and with the power to reconsider what estate the corporators should hold and enjoy in their private property, the legislature should have expressly reserved such power of invasion of property; and had they reserved it, without limitation upon their future action, I will venture the assertion that no railroads would have been constructed under it." By this act the State is now attempting to repudiate its solemn contract, and its plighted faith, and, arbitrarily, to fix a rate of compensation in violation of both, which is manifestly unjust and admitted to be wholly inadequate.

By a general law of the State of Wisconsin, approved October 10, 1856, (Session-laws, page 213,) and afterwards incorporated into the revised statutes of 1858, (sections 33 to 38, inclusive, chapter 79.) It was provided that any railroad company might borrow money and as security therefor, pledge by way of mortgage or trust-deed, their railroad track, right of way, depot-grounds, rights, privileges, franchises, immunities, and appurtenances, and that on a foreclosure and sale thereof, the party or parties acquiring title under such sale, and their associates, successors, and assigns should have and acquire thereby, and should receive and enjoy thereafter, all and the same rights, privileges, grants, franchises, immunities, and advantages in and by said mortgage or trust-deed enumerated and conveyed, which belonged to and were enjoyed by the company, making such deed or mortgage, or contracting such debt as fully and absolutely in all respects as the corporators, shareholders, officers, and agents of such company might or could have done therefor, had not such sale or purchase taken place, such purchaser or purchasers, their associates, successors, or assignees might proceed to organize anew, and elect directors, distribute and dispose of stock, take the same or another name, and might conduct their business generally under and in the manner provided in the charter of such railroad company with such variations in manner and form of organization as their altered circumstances and better convenience might seem to require: provided, however, that no greater or enlarged power should be exercised by the new organization than were conferred by the charter of said company. Many of the charters also contain express provisions authorizing a lease or voluntary sale by the companies of their railroad and its appurtenances, as in the case of the La Crosse and Milwaukee charter now forming a part of the Chicago, Milwaukee and St. Paul Railway Company.

Let us now consider the effect of these provisions and the acts thereby authorized, with respect to the operation of this reserved power upon the property, as claimed by the counsel opposed. It is