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tending to bring suit against said company for the purpose of enforcing said act. That said company will be harrassed with a great multiplicity of suits, and its business seriously injured and impaired, and the security of complainants greatly impaired and depreciated, unless the parties named shall be restrained.

That in consequence of the passage of said chapter 273, and the proposed enforcement of the same by the said Railroad Commissioners and the Attorney-General, and the arrest of the agents of said railway company, the value of the securities held by the complainants has very greatly depreciated; and the complainants have applied to said railway company, and requested it to cause such legal proceedings to be instituted in its name as would effectually protect the rights of the holders of the bonds of said railway company against all attempts to enforce the said act, either through the Railroad Commissioners or by prosecution of the officers of said company, because the enforcement of the act would impair the obligation of the contract made by the said railway company with the holders of said bonds, and greatly impair the value of their securities. That complainants requested said company to consider the fact that the passage of the act had already greatly depreciated the value of said bonds, and that the proposed enforcement of said act, in the way contemplated by its provisions, must inflict irremediable injury upon the property which stands as security for the bonds of said company. But said company, acting through its board of directors, have declined to take the steps necessary to protect the rights of the complainants, either by the institution of the necessary legal proceedings or in any other manner.

The complainants, therefore, charge that the defendants, Geo. H. Paul, Joseph H. Osborn, and John W. Hoyt, and A. Scott Sloan, the Attorney-General of said State, are preparing to institute, or cause to be instituted, a great multiplicity of suits against the said railway company and its agents, for the purpose of enforcing the provisions of said chapter 273; and unless said Railway Commissioners and Attorney-General are restrained by the order of this honorable court, they will cause a great number of suits to be instituted against the local agents of said company, which suits would greatly embarras said company, subject it to heavy expenses, and compel it, in whole or in part, to suspend its business, and thereby impair its means of discharging the interest due complainants and other bond-holders.

The complainants further charge that said Railroad Commissioners and Attorney-General are preparing to have the agents of said railway company, along all the line of its railroad in Wisconsin, arrested and imprisoned under the provisions of said act, and that they will do so unless restrained by order of this honorable court, and that if the agents of said company are so arrested the said company will be compelled either to operate its railroad under said act in such manner as to fail to raise sufficient revenue to pay the necessary running expenses thereof, and to pay for keeping such roads and their equipments in a proper state of repair, and to pay the interest on its bonds, and to provide a proper and reasonable

sinking fund to pay the principal on said bonds, or to cease from operating said railroads altogether, and in either case the value of the stock (bonds) owned or held or represented by said complainants, would be greatly depreciated or wholly destroyed.

Prayer, that the railroad company may be enjoined from accepting the act or complying with its terms in operating their road. That the Railroad Commsssioners be enjoined from fixing rates or classifying freight; and,

That the Railroad Commissioners and Attorney-Ceneral may be enjoined from arresting, or causing, or aiding, or abetting in the arrest of any agent of said railway company, or from instituting or causing to be instituted against said company, its agents or officers, any suit or proceeding to enforce the said chapter 273.

To this bill the Railroad Commissioners and Attorney-General interposed a general demurrer for want of equity.

The demurrer was sustained, and a decree dismissing the complaint entered, reserving the rights to the defendants to raise any question as to the jurisdiction of the circuit court or otherwise, which they might think proper.

Points, and Authorities.


The circuit court had no jurisdiction of this cause, because the State was the real party in interest.

The defendants are only nominal parties. The relief really sought is to enjoin the State from testing in its own courts the validity of one of its own laws.

By the eleventh amendment to the Constitution of the United States, the State cannot be made a party. The same exemption should be extended to the officers or agents of the State unless they do or threaten to do some act for which an action should lie against them personally.

This case is distinguished from all the reported cases, in which this court has decided that United States circuit courts had jurisdiction of action against the officers and agents of States in this; that, in all those cases some acts have been committed or threatened which would have rendered the officer or agent personally liable, in an action brought by the party injured by such act. But here the only allegations, in substance, are that the Attorney-General will institute proceedings in the courts to have the validity of the law determined, and if valid to have the penalties enforced, and that the Railroad Commissioners will classify freights, and fix rates for transportation of such as are not definately fixed by the law, and that the Attorney-General and commissioners intend to prosecute the agents of the company in the courts, to enforce the penalties given by the law.

It will be observed that there is no allegation that either the Attorney-General or commissioners have done any acts on which the fears and conclusions of the complainants are based.

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This court will take judicial notice of the public statutes of Wisconsin, and therefore know that neither chapter 273, laws of 1874, nor any other statutes of the State imposes the duty of prosecuting the agents of the company for violation of that act, upon either the Attorney-General or Railroad Commissioners, and it is submitted that the allegations are not sufficient to warrant the court in concluding that these officers are about to do any of the acts which the complainants fear they may do. But, however, that may be, the allegations in the bill furnish no sufficient grounds for the circuit court to assume jurisdiction of the cause, or to enjoin those State officers from performing their duty to the State as required by the law.

There is no pretense that they intend to take or in any way interfere with the property of the railroad company, or to do any act for which an action at law could be maintained against them personally.

In Osborn vs. U. S. Bank, (9 Wheat., 738,) the money of the bank had been actually taken and was then in the possession of the defendants. Chief Justice Marshall, in delivering the opinion of the court, says, page 842:

* *

"It is admitted that the privilege of the principal is not communicated to the agent; for the appellants acknowledge that action at law would lie against the agent, in which full compensation ought to be made for the injury. It being admitted, then, that the agent is not privileged by his connection with his principal, that he is responsible for his own act, to the full extent of the injury, why should not the preventive power of the court be applied to him? Why may it not restrain him from the commission of a wrong which it would punish him for committing? * * Now, if the party before the court would be responsible for the whole injury, why may it not be restrained from its commission if no other party can be brought before the court? Will it be said the action of trespass is the only remedy given for the injury? Can it be denied that an action on the case for money had and received to the plaintiff's use might be maintained? We think it cannot; and if such an action might be maintained, no plausable reason suggests itself to us for the opinion that an injunction may not be awarded to restrain the agent with as much propriety, as it might be awarded to restrain the principal, could the principal be made a party."

* * * *

It is apparent that there is a wide difference in the facts between that case, and the one at bar. Here there is no allegations that the Attorney-General or Railroad Commissioners, contemplate doing any act which would make them amenable to an action brought by either the complainants or the railroad company in any form or in any court. But it is proposed to the United States circuit court, to invade the offices in the State Capitol, and there suspend the functions of the State officers, and to silence the Attorney-General in the courts of the State by injunction. As well might the United States circuit court have enjoined the Governor from approving the law, or the legislature from passing it, upon the allegation that its

passage or approval would injuriously affect the securities of the complainants.

There is also a wide difference between the character of the parties in the two cases. In the reported case the complainant was the fiscal agent of the United States, created and invested with its powers and rights by act of Congress, and the case involved an inquiry as to public rights. The chief justice states the question on page 849, as follows:

"The question, then, is, whether the Constitution of the United States, has provided a tribunal which can peacefully and rightfully protect those who are employed in carrying into execution the laws of the Union from the attempts of a particular State to resist the execution of those laws."

In the case at bar private right is alone involved-rights affecting only the State and one of its own corporations, or what is the same thing, the creditors of such corporation.

This straining after power by the Federal circuit courts can only be excused upon the injurious assumption that the courts of the State are either incapable or unwilling to admisister justice fairly and impartially. The case of Dodge vs. Woolsey, 18 Howard, 331, also differs from the one at bar, in this, that the defendant, Dodge, as tax-collector threatened to seize the money or property of the bank and thus to commit an act which would have made him liable in an action of trespass, or for money had or received, thus bringing the case within the principle laid down in Osborn vs. The Bank, supra.

But here neither the classifying freights nor fixing the tolls therefor, nor the commencement of proceedings in court, would have been any interference with the rights of the property of the complainants or of the company, or rendered the Commissioners or Attorney-General liable to an action. The allegation that the Commissioners and Attorney-General were about to prosecute the agents, states a conclusion, which could only rightfully be drawn from facts, that is from their own acts or sayings, none of which are stated, for the simple reason that none existed. Courts of equity ought not to issue injunctions upon such loose statements of mental conclusions. The facts from which the pleader draws his conclusions should be stated.

We therefore protest against the exercise of the jurisdiction claimed for the circuit court in this case as being an unwarranted invasion of the sovereignty of the State, and an unnecessary and dangerous encroachment on State rights.


Chapter 273, laws of 1874, is valid. The legislature possessed the constitutional power to enact it.

Upon the subject of corporations the constitution of Wisconsin is as follows:

Article XI, Sec., 1. "Corporations without banking powers or privileges may be formed under general laws, but shall not be cre

ated by special act except for municipal purposes, and in cases where, in the judgment of the legislature, the object of the corporation cannot be attained under general law. 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."

The power reserved to the legislature to alter or repeal acts of incorporation is in its terms unlimited; the object of this reservation of power is well known. Since the decision of the DartmouthCollege case, in 1819, in which this court held that a charter of incorporation was in the nature of grant creating a contract, beyond the power of the legislature to impair, many of the States have, by general statutes, special clauses in corporate charters, or by constitional provisions, sought to re-establish over such corporations the legislative control which has always existed in England, and which previous to that decision was supposed to exist in this country.

The language employed to reserve this power in the constitution of Wisconsin is so plain and unambiguous, the intention is so obvious, and the object sought to be attained so evident, that the question whether the legislature of the State has the power to limit the tolls and charges of corporations can hardly be considered debatable.

Twenty years ago, before any of the complainants had invested money in the securities of the railroad corporations of the State, the Supreme Court of Wisconsin had occasion to state the true construction and effect of the provision in our constitution reserving to the legislature power to alter and repeal acts of incorporation. In Pratt vs. Brown, 3 Wis., 603, decided in June, 1854, the court say, p. 611:

"The doctrine that a charter of incorporation conferring certain franchises upon a company or individual was in the nature of a grant, and hence, protected from encroachment or attack by the shield of the Federal Constitution, which prohibits the States from passing any laws impairing the obligation of contracts, was established, after elaborate argument and on full consideration, by the Supreme Court of the United States, in the Dartmouth College case. This doctrine has since that decision been generally acquiesced in by nearly, if not quite, all the State courts in the Union. It is competent, nevertheless, for each State, by constitutional regulation or specific legislative enactment, to reserve the power to modify or repeal all such acts of incorporation.

"When the power of modification or repeal is reserved, either in the one mode or the other, it is obvious that the grantees must rely, for the perpetuity and integrity of the franchises granted to them, solely upon the faith of the sovereign grantor. Hence, since the decision of the Dartmouth-College case, some of the States, and our own among the number, have by constitutional provisions reserved to their legislatures the right of modification or repeal of all special acts of incorporation, and all such corporations now rest upon the faith of the State, taking care to deserve its favor or command its justice by observing strictly the limit of their powers, and accomplishing by all legitimate means the object of their creation."

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