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and they have no right to complain when the condition is enforc ed. Their rights in their material property are inviolate, and shall never be violated with the sanction of this court. But they are no more violated by this act, and its enforcement than by foreclosure of a mortgage or ejectment by paramount title. It is a right over property which is enforced, not a wrong to right in property." (Page 35 of opinion.)
That is, the chief justice does not see that it lessens the amount to be paid for use and services thirty per cent., yet he does not know that it will decrease their income. He knows that experts, skilled in the operation of the road, have tistified that it would decrease the income of the road, and render it valueless to the owners, and there is no evidence to contradict it. Yet he does not know that it will render the property less valuable to the owners, and insists that so long as the law does not authorize a manual touching of the dirt, wood and iron constituting the road, the property is not interfered with. The fact, that we actually are, or may be, deprived of all right or ability to use it or enjoy it by this action of the legislature, is not an inteferance with the property in the estimation of the chief justice.
It is submitted however, that to any ordinary mind, not a chief justice, it is entirely clear that the property may be interfered with and utterly ruined, and its value substantially destroyed, without manual interference with the material property and without ousting the owners therefrom. If, as it is claimed, the road can only be operated in virtue of the franchise granted, and that franchise does not inhere in the property, so as to be irrepealable, and such repeal can be effected in virtue of the reserved power; then most assuredly section 1, of article 11, of the Constitution, does dominate all other provisions of that instrument, and while overriding the vested rights of the owners of this property also overrides the provisions of the Constitution of the United States. If the legislature were authorized to pass chapter 273, they are equally authorized in the coming session to pass another act, taking away all right to compensation, and still compel the company to continue to operate its road under pains and penalties of new fines and imprisonment. They were not bound to stop at thirty per cent., they could by the same authority, have taken fifty per cent., or the whole. If they had the right to take thirty per cent. of our earnings, there could be no limit to their action, and if the doctrine laid down by the chief justice is correct, they would not have interfered with our property, when they had deprived us of all right to compensation. Our material property would still remain and our vested rights would not have been disturbed.
The chief justice says, "the reserved power in our constitution is a positive provision, entering into all charters under it." This is admitted as to all matters relating to their creation or formation, as corporations and their existence as such. But the right to build, own, and operate a railroad, whether it be held a natural right or a franchise granted by the State, is not a corporate right, pertaining or relating to the creation or formation of a corporation. If a fran
chise, it may be granted to an individual or to individuals as well as to a corporation, and when granted to either, and accepted and acted upon on the faith and credit of the State, and an investment made that cannot be withdrawn, and can only be used and made available through a continuance of the franchise, it needs no argument to demonstrate that a withdrawal of or prohibition to use the franchise operates just as effectively to destroy the property as it would for the State to withdraw from the owners the material part of the property, or prohibit its use by them, and this is equally true whether the grant is made in the first instance to a corporation or to an individual.
There is no doubt that the legislature might grant this franchise to build, own or operate a railroad to an individual or to individuals, without an act of incorporation, and that on such a grant they might build and operate a railroad. There is just as little doubt that after they had constructed their road, their rights thereto, with all its privileges, would become vested rights, of which they could not be divested by an act of the legislature. Now, in the case of the La Crosse and Milwaukee Railroad Company, the State of Wisconsin created that company, and authorized it to build, own and operate a railroad from Milwaukee to La Crosse, and also authorized said company, at its discretion, to mortgage, lease or sell its road, when constructed, with all its rights and franchises, and that the purchaser or lessee should, on a sale or lease, take all its rights and franchises. That road was afterwards sold on a decree of the United States court, entered on a mortgage given by said company, and at the sale was purchased by Pratt & White, and the sale duly confirmed. Now what title did they get by that purchase? Did they not get precisely the same title to that road and its franchises, to own and operate it according to the grant originally made to the La Crosse company, that they would have had, had the State made the original grant, to build, own and operate that road, to said Pratt & White, and they had constructed the road under such grant? Did not the title to said property, including the franchise to operate it as a railroad, according to the original grant, become vested in them as an estate, of which they could not be divested, except by due process of law?
It is true that the chief justice of Wisconsin denounced this position as "a mere petitio principii, and hardly worthy of notice," yet it is modestly submitted to this honorable court as worthy of their consideration.
Again, the chief justice says (page 35 of opinion):
"Of the same type is the argument that chapter 273 violates the contracts of these defendants with their creditors. This position appears to us to rest in the absurdity that the mortgagor can vest in his mortgagee a greater estate than he had himself. Perhaps the statute may lessen the means of payment of the defendants. So would a fine for homicide, under the police power of the State. But to lessen the means of payment of a contract is not to impair the obligation of the contract. These defendants took their fran
chises, and their corporators invested their money, subject to the reserved power, and suffer no legal wrong when that is exercised." Is it not also true, that every creditor trusts his debtor with full knowledge that the State possesses the reserved power, at any time it sees fit, to extent the exemption-law so as to cover all the debtor's entire property? Yet the courts have held such extension exemptions, and all similar laws, unconstitutional as to existing debts. Danks vs. Quackenbush, 1 Denio, 128; Denio, 594: 1 Comstock, 129; Bronson vs. Kinzie, 1 Howard, 311.
And although the very learned chief justice of Wisconsin, in his able opinion, speaking for the supreme court, reprimanded the counsel engaged for denouncing chapter 273 as an act of confiscation unworthy of that great State, we still adhere to the opinion then expressed that it is, in all essential particulars, an act partially confiscating the property of the railroads of that State for the benefit of a certain portion of the community, and if sustained by the courts, opens wide the door through which the total confiscation will be consummated whenever it shall please the parties interested to effect it. It is the beginning of the operations of the commune in the legislation of this country, and if not checked at the threshold, will ultimately overthrow not only all rights of property, but personal liberty and independence as well. Our last appeal is to this honorable court.
This chapter 273, of the laws of 1874, is void, because it is in violation of that principle of constitutional law, which prohibits unequal and partial legislation upon general subjects.
The law arbitrarily names certain corporations which it says shall charge one price, certain other corporations named shall charge another price, and others shall charge a different price for performing the same services and doing the same acts. This is an arbitrary proceeding, and is partial legislation. Some of the companies are allowed to charge twenty-five per cent. more than others, for no apparent reason. The pretended classification of the companies by the law into A, B, and C, is no classification. It is based upon no reason or principle, but simply changes the names of certain companies, and says they are A, and certain othars B, and still others C. It is the same as though no classification was attempted, and the discrimination is arbitrary and partial, and for that reason the law is invalid. If it were possible to classify the roads and then prescribe different rates for the different roads, still the classification must be made on some principle or recognized basis. Non constat, but that the roads allowed to charge the highest price are receiving the greatest income per mile, or have been specially favored by the State.
"This law has not even the merit of uniformity. It imposes burdens upon one class of corporations not placed upon another of the same class. It grants to one privileges denied to another of the
same class. It enacts that the Wisconsin Central Railway Company may so use and enjoy its property as to derive an income, while this right is dened the Chicago, Milwaukee & St. Paul Railway Company. It is class legislation in all its nakedness and deformity, without even a shadow or color of equity."
"A statute would not be constitutional which should proscribe a class or party for opinion's sake, or which should select particular individuals from a class or locality, and subject them to peculiar rules, or impose upon them special obligations or burdens, from which others in the same locality or class are exempt." Cooley's Constitutioual Limitations, page 390.
"Mr. Locke has said of those who make the laws, they are to govern by promulgated, established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favorite at court and the countryman at the plough, and this may be justly said to have become a maxim in the law, by which may be tested the authority and binding force of legislative enactments." Civil Government, Sec. 142; State vs. Duffy, 7 Nev., 349.
But if the legislature shall undertake to provide that persons following some specified lawful trade or employment should not have capacity to make contracts, or to receive conveyances, or to build such houses as others were allowed, or in any other way to make such use of their property as was permissible to others, it can scarcely be doubted that the act would transcend the due bounds of legislative power, even if it did not come in conflict with express constitutional provisions. The man or the class forbidden the acquisition or the enjoyment of property in the manner permitted to the community at large, would be deprived of liberty in particulars of primary importance to his or their pursuit of happiness."
In Wally's Heirs vs. Kennedy, 2 Yerg., 554, it is said, "the rights of every individual must stand or fall by the same rule or law that governs every other member of the body politic, or land, under similar circumstances; and every partial or private law which directly proposes to destroy or affect individual rights, or does the same thing by affording remedies leading to similar consequences, is unconstitutional and void. Were it otherwise, odious individuals and corporations would be governed by one law, the mass of the community and those who made the law by another, whereas the like general law affecting the whole community equally could have passed." Also Durham vs. Lewiston, 4 Greenl., 140; Holden vs. James, 11 Mass., 396: Piquet, appellant, 5 Pick., 64; Budd vs. State, 3 Humph., 483.
See also on the subject Cooley on Constitutional Limitations, 389 to 394.
But this matter has been fully considered by the supreme court of this State, and the late chief justice in an able and exhaustive opinion, in which all the authorities are collected, has applied and enforced the principle with his usual ability and learning. Drake vs. City of Janesville, 28 Wis. 464; Bull vs. Conroe, 13 Wis. 238
This act is also in violation of the 7th subdivision of the amend
ment of the constitution of this State, adopted in 1871, which prohibits special legislation, "for granting corporate powers or privileges, except to cities." This act is special legislation. Corporate powers and privileges cannot be granted by special act. This act is special in its character, and in violation of that amendment. One company is authorized to charge three cents, another three and a half, and another four. This is special legislation and is prohibited by the amendment. In this particular it is not general law.
The act of March 12, 1874 which was passed subsequent to chapter 273, which assumes to fix rates, is repugnant to said chapter so far as it prescribes rates and repeals it.
Chapter 273 was passed and approved March 11, 1874. It assumes to fix arbitrary rates to be charged for the transportation of freight and passengers and made it a criminal offence to charge more than the rates so fixed punishable by fine.
On the next day, March 12, 1874, an act was passed entitled "an act in relation to railroads," which purports to be a revision of the whole subject matter in regard to railroads and their charges, and prescribes a new and different set of penalties for violation thereof. The act of March 11, chapter 273, fixes the rates to be charged, and imposes a penalty of not exceeding two hundred dollars for a violation of the rates there specified.
The act of March 12, 1874, provides that railroads are highways, and the companies common carriers, and shall transport all passengers and freight without unreasonable delay; prohibits favoritism and unreasonable discrimination; consolidation; leasing parallel lines; prohibits free passes to State officers and others; provides that any officer, agent, or employee of the company who shall violate any of the provisions of the act, shall be guilty of a misdemeanor and punished by fine or imprisonment, or both-the fine to be not less than five hundred dollars or more than five thousand dollars, and the imprisonment not less than thirty days or more than one year. It provides for punishing State officers for accepting a pass. Then follows sections 9 and 10, in these words: Sec. 9. If any railroad company or corporation, organized or doing business within this State, shall charge, collect, demand or recover more than a fair and reasonable rate of compensation upon any line of road within this State, which it has the right, license, or permission to use, operate or control the same, shall be deemed. guilty of extortion, and, upon conviction thereof, shall be fined in any sum not less than five hundred ($500) or more than two thousand dollars ($2,000) for each offense, with costs of suit, and reasonable attorney's fees, to be fixed by the court; provided that in all cases under this act either party shall have the right to trial by jury.
SEC. 10. All acts or parts of acts contravening or conflicting with the provisions of this act are hereby repealed.'