like those here complained of, calculated to facilitate commerce and travel between the States and not impede them, and making no unjust discriminations, can be said to violate that provision of the Fed-· eral Constitution. There is not the slightest analogy between this case and that of Crandall v. Nevada, 6 Wallace, 35, nor any other in which it has been held or suggested that State regulations were invalid on the ground here taken.

VI.

The position that the legislature of Wisconsin, by authorizing the corporation of its own creation to consolidate with one of the same or a different name, incorporated by the legislature of another State, whose charter was irrepealable, thereby lost control under the reserved power, seems altogether untenable. It is wholly incompetent for the legislature in this or in any other way to release or destroy the reserved power. The power remains by the constitution, whatever the legislature may say or do. But the effect of such consolidation was not to change or affect in the least the Wisconsin corporation for all the purposes of the reserved power. Speaking of a like case, where the corporations of the different States had been authorized by laws of Massachusetts and Rhode Island to consolidate, Judge Story says: "Although by virtue of these several acts, the corporations acquired a unity of interest, it by no means follows that they ceased to exist as distinct and different corporations. Their powers, their rights, their privileges, their duties, remained distinct and several, according to their respective acts of incorporation." Farnum v. Blackstone Canal Co., 1 Sumner, 47, 62. Such still continues to be the relation of the Wisconsin corporation to the State of Wisconsin, by which it was created, notwithstanding the assent of the legislature of the State to its consolidation with a corporation created by the State of Illinois, or by any other State. It is still subject to the reserved power, and to such control over its franchises as the constitution gives.

Speaking of the effect of the consolidation of an Illinois railroad. company with a Wisconsin railroad company under the authority of acts of legislatures of each State, the Supreme Court of Illinois held: "While it created a community of stock and of interest between the two companies, it did not convert them into one company, in the same way, and to the same degree that might follow a consolidation of two companies within the same State. Neither Illinois nor Wisconsin, in authorizing the consolidation, can have intended to abandon all jurisdiction over its own corporation, created by itself. Indeed, nelther State could take jurisdiction over the property or proceedings of the corporation beyond its own limits, and, as said by the court in The O. & M. R. R. Co. v. Wheeler, 1 Black., 297, 'a corporation can have no existence beyond the limits of the State or sovereignty which brings it into life and endows it with its faculties and powers.' In the same case the court says that a corporation cannot be created by the co-operating legislation of two States, so as to be the same legal entity in both States,

and where two States have each created a corporation of the same name, for the same purposes, and composed of the same natural .persons, it must nevertheless be considered as a distinct corporation of each State." See also, McGregor, qui tam, v. Erie Railway Co., 35 N. J. Law (6 Vroom), 115, 118, and cases there cited.

In conclusion it is submitted that the State of Wisconsin has committed no wrong, violated no rule or principle of constitutional law, state or national, by the legislative act complained of. Nay more, it is submitted that the reproach of violating the principles of national justice ought not to, and does not rest upon the State. Whether the act will lessen the income of the property of the defendant company, no one can foresee. This is, or until recently has been, matter of conjecture merely. Experience-actual trials thus far had under the act, have not demonstrated that it will be so. On the other hand it is believed by many, whose judgment and opinions are based on careful examination and study of statistics and comparisons of figures, that such has not been and will not be the effect of the law. It is believed by many, well able to judge, that the incomes and earnings of the railroads of Wisconsin have increased, and will continue to increase, under the law. But should the fact be otherwise and the claim of the plaintiffs prove true, the State will be the first to recognize it, and to correct the wrong by the repeal or modification of the law. The honor of the State, her sense of justice, the interests and prosperity of her people, as also those principles of law to which all civilized nations must yield, will all equally bind the State to do this, and these are obligations from which she will never seek to escape. They are obligations which could not be disregarded by the State without forfeiting her honorable position among the States of the Union. Let it be shown that the act is oppressive and wrong in the particulars complained of, the plaintiffs will not appeal to the State in vain for redress. Their objections will be listened to with respect, and examined with that impartiality and care which justice and equity demand. As yet it is believed that the conduct of the State has been neither undignified nor unjust, whilst she has been met at every point by the railway companies, and those interested in them, only in a spirit of open and uncompromising defiance and hate. The excited popular sentiment, if any such exists in the State of Wisconsin against railroad corporations, and which has certainly been greatly exaggerated, is attributable, therefore, to the conduct and attitude of the corporations themselves. The cause being removed, the days of calmer judgment and wiser counsels will soon be restored. The people of Wisconsin will submit to anything rather than a sacrifice of their honor, or that any stain should rest upon their name. They are fully conscious that the great elements of public liberty lie in the firm protection of private vested rights. They are deeply interested, too, in the preservation of those principles by which such rights shall not be unsettled, or subjected to mere popular whim or caprice, as any people can be; and yet they are at the same time sensible that vested rights, so called, may be urged to such extremes

as to become grievous public burdens, and inconveniences intolerable to the State. Such, they submit, is the character of the rights, improperly so denominated here, and such would be the consequences of a decision upholding them as claimed by the plaintiffs in these actions. Cheerfully submitting their rights to the determination of this honorable court, and confiding in its judgment, the people of Wisconsin cannot believe that the doctrine of vested rights will be carried to such dangerous extremes, or that there is to be any presumption here that the State is incapable of guarding her own honor, or will pursue, towards her own corporations or citizens, any but an enlightened, liberal and just policy. L. S. DIXON, Of counsel for the defendants.

OCTOBER 18, 1875.

BRIEF OF ARGUMENT OF I. C. SLOAN,

OF COUNSEL FOR THE RESPONDENTS AND DEFENDANTS IN ERROR.

Abstract of Case.

The complainants are non-residents of the State of Wisconsin, and are owners of first-mortgage bonds of the Chicago & Northwestern Railway Company. They file their bill of complaint to restrain said railway company from obeying; and the defendants, George H. Paul. Joseph H. Osborn, and John W. Hoyt, who are Railroad Commissioners, and A. Scott Sloan, who is Attorney-General of the State of Wisconsin, from enforcing a law of the State, (chapter 273, laws of 1874,) which limits the rate of charges for transporting passengers and freights on all the railroads in this State.

The bill sets out the various acts by which the said railroad company was incoporated.

That the company was authorized to borrow money and to execute mortgages to secure the payment of the same.

That the complainants are severally the owners of bonds issued or guaranteed by said railroad company and secured by mortgages upon various portions of its railroad, executed in pursuance of the laws of the State.

That the tariff of rates charged by said company before the passage of chapter 273, laws of 1874, did not produce sufficient income to pay operating expenses, repairs, interest on the debt, and the legal rate of interest allowed by the laws of this State to its stockholders.

Sets forth in full chapter 273, laws of 1874.

That the enforcement of said act "will be either the failure of the company to pay its bonded debt and interest, or a suspension of the operation of its railroad in Wisconsin, and the consequent destruction of the securities held by the complainants."

That the classes of freight established by section three of said. act are different from the classes of freight established by the laws of Illinois, Iowa, and Minnesota, for the transportation of freight upon the railroads of said company in said several States, and that it is practically impossible to carry on the business of transporting freight from Wisconsin to either of the other States mentioned.

That the complainants are advised that the enforcement of said act would impair the obligation of the contract entered into between

the said railway company and the complainants, and for that reason the said law contravenes the Constitution of the United States. That said act is in violation of the thirteenth article of the bill of rights of the constitution of the State of Wisconsin, viz:

"The property of no person shall be taken for public use without just compensation therefor."

That the legislature of Wisconsin had no constitutional power to pass said act.

That the eighteenth section of said act is a regulation of interState commerce, which the legislature of Wisconsin had no power to enact.

That said railroad company has never accepted said act, but that it will be obliged to accept the rates of fare and freight specified in said act, or cease the operation of its road in Wisconsin, unless said act shall be held to be unconstitutional and void, as the complainants are advised and believe, "and in either event the security which is held by your orators severally for the payment of the bonds owned by them would be wholly destroyed." (Page 45.)

That by chapter 341, laws of 1874, being an act of the legislature of Wisconsin, passed March 12, 1874, which was a day subsequent to the passage of said chapter 273, said railroad company was authorized to charge reasonable rates; and submit whether said firstnamed act did not repeal the latter.

Also, that chapter 292, laws of 1874, State of Wisconsin, repealed said chapter 273, laws of 1874.

That George H. Paul, Joseph H. Osborn, and John W. Hoyt have been appointed railroad commissioners of the State under said chapter 273; have accepted the appointment, and entered upon the discharge of their duties. That the complainants greatly fear that said commissioners will proceed to classify in some one or other of the classes named in the act, the articles of freight which are not specifically classified by the act; and that said commissioners will also proceed to reduce the rates of freight and fare upon the railraod of said company, unless restrained by an order of the court.

That sundry prosecutions have already been commenced against the agents of said company, at different places in the State, for alleged violations of said law in charging greater rates of toll than those prescribed by chapter 273; that said agents have been arrested, and would have been imprisoned if the company had not procured bail for them.

That the Governor of the State has issued two proclamations since the law took effect, in which he states his intention to enforce all the provisions of said act by all the means in his power; and in one of said proclamations requests and enjoins all district attorneys promptly and vigorously to prosecute to conviction and punishment, all offenders against said law; and further states that "printed forms and instructions for the prosecution of such actions will by promptly furnished on the request of any officer of the law made to the Attorney-General at Madison."

That other persons, whose names are unknown, but whom leave is asked to make parties when discovered, are prepairing and in