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subject is withdrawn from the domain of judicial decision and remains only a matter for the legislative conscience.

"And so with the objection that the provisions of this law assumes control of the property of the corporation, and deprives them of its use without making any compensation, and is therefore in conflict with the constitution of the State and of the United States.

"As these corporations have no natural existence, but are created wholly by legislative enactments, their power to act, in every particular, is derived from the State; their capacity to make contracts, acquire and use property, and to charge for its use comes from the State, and is granted on such terms and to such extent as the legislature may prescribe; the power of the State to grant is given by the constitution, and coupled with this power is found in the same fundamental law, the authority to alter the act of incorporation as the legislature may think the public interests demand. The rights and privileges conferred cannot be separated from the restrictions and duties imposed. The power to take toll cannot be distinguished from the duty to take only such as the legislature shall establish. It is difficult to see how restricting these tolls within certain limits which the legislature deems just, is any more depriving the corporations of their property than it would be to repeal their charters and thus deprive them of the power of charging any rates at all, and this latter power may confessedly be exercised without making compensation.

"Whether the State can compel the companies to operate their road for such compensation as it chooses to prescribe, is another and diffierent question, not involved in this discussion. The only inquiry, while companies are openly violating the law by charging higher rates than it allows is, as to the power of the legislature to prohibit them from charging above certain fixed rates.

"If it shall be made to appear that the companies cannot operate their roads except at a loss under the rates fixed by the law, the remedy is not in an attitude of open hostility to the law, but in an application to the legislature for its modification. As suggested in relation to the other objection, this is the forum which the constitution has provided for the determination of that question, and in accepting the charters, the companies assented to be governed and bound by the legislative sense of justice. This sense of justice will undoubtedly coincide with the mutual interests of the people and of the railroad companies. These interests demand, with a force almost equal to the provisions of positive law, that remunerative rates shall be allowed for the services of these corporations; but as a mere question of legal right, full power has been reserved by the constitution, in the language of Olcote vs. Supervisors, supra, to alter or repeal the charters of these corporations, and the roads can therefore be controlled and regulated by the State, their use can be defined, and their tolls and rates for transportation limited."

While the exercise of the reserved power has been upheld in every instance in which any case involving its exercise has come

before the courts, State or national; yet, in some of the cases dicta may be found to the effect that the power of the legislature to alter acts of incorporation is not wholly unlimited.

This dicta first appears in the case of the Essex Co., 13 Gray, 239, and in the case of Miller vs. The State, 15 Wall., 478, the limitation of this power is referred to and defined as follows:

"That it cannot be exercised to take away or destroy rights acquired by virtue of such a charter, and which, by the legitimate use of the powers granted, have become vested in the corporation.










Such reservation, it is held, will not warrant the legislature in passing laws to change the control of an institution from one religious sect to another, or to devote the fund of the donors to any new use inconsistent with the intent and purpose of the charter, or to compel subscribers to the stock, whose subscription is conditional, to waive any of the conditions of their contract."

This is really only repeating the limitation which exists on all legislative power, and has no special application to legislation under the reserved power. It is simply declaring that the legislature cannot transfer by an arbitary act of legislation the property of one person or class of persons to another, whether the title to such property be in a corporation or natural person, and cannot annul valid contracts.

We do not claim that this reserved power gives to the legislature any right over the property of the corporation. It can only deal with franchises. Over them it has absolute control.

That the right of a corporation to take tolls is a corporate franchise, is too well settled to admit of doubt.

In Thorpe vs. R. & B. R. R. Co., 27 Vt,, p. 146, the court say: "The privilege of running the road and taking tolls or fare and freight is the essential franchise conferred."

In B. & L. R. R. Co. vs. S. & I. R. R. Co., 2 Gray, 27, the court


* *

"A right to maintain a railroad and take the tolls and profits is created and granted them by the government of the State It is a right or title which, if it it exist at all, is purely a statute right. It is created by law; it exists only in contemplation of


Again, on page 29, the court say:

"A toll is granted for the sole benefit of such corporation upon all passengers and property of all descriptions which may be conveyed or transported on said road at such rate as the company in the first instance shall fix. This is in every respect a public grant; a franchise which no one could enjoy, but by the authority of the Government."

In Alcott vs. Banfil, 4 New Hamp., 545, the court say: "When individuals, under a charter from the Government, construct works for the public accommodation and open the works to public use, this is, in law, a dedication of the public use, and no toll can be demanded unless it be authorized by the charter."

In Hull Dock Co. vs. Brown, 1 East., 575, "Where no tolls are

expressly imposed they are not imposed by inferences; those who seek to impose a burden upon the public must take care that the claim rests upon plain and unambiguous language."

But this question was long ago fully and fairly settled by this court, and is no longer debatable.

In Perrine vs. Chesapeake & Del. Canal Co., 9 How., 172, the court say, p. 184:

"It is the well settled doctrine of this court that a corporation created by statute is a mere creation of the law, and can exercise no powers except those which the law confers upon it, or which are incident to its dxistence. Head, et. al. vs. The Providence Insurance Co., 2 Cranch. 127; Dartmouth College case, 4 Wheat., 636; Bank of United States vs Dandridge, 12 Wheat., 64; Charles River bridge vs. Warren bridge, 11 Pet., 544; Bank of Augusta rs Earle, 13 Pet, 587.

The error consists in regarding the title of the company to the property as derived to them upon common law principles. The corporation has no right of property except those derived from the provisions of the charter. Nor can it exercise any power over the property it holds, except those with which the charter has clothed it. And whether it may demand compensation from a person whom it permits to pass over its property must depend upon the language of its charter and not upon the rules of the common law."

In view of this emphatic declaration of the law on this subject, it is vain for learned counsel to argue that the Chicago and Northwestern Railway Company possesses any right to demand or receive compensation for the transportation of persons and property upon its railroad except what is expressly granted by its charter, and such grant must of necessity be alterable under the power reserved in the constitution of the State. Chapter 273 is a strict exercise of this right to alter the franchise of the corporation to exact tolls. It changes this franchise from an unlimited one to a limited one. A strong effort is made in this case, as it was in the case last cited, to establish the power of a corporation to take tolls, as existing outside of the powers granted by the legislature, and one learned counsel, driven by the decisions of this court from the domain of the common law, appealed to the "higher law," as the source of this right, whilst another equally learned counsel thought it might be derived from the law of nations. All discussion of this question only serves to strengthen and confirm the rule of law on this subject as settled by this court. And the conclusion is inevitable that, if it be a franchise granted by the legislature, it is alterable at the legislative decision.

And while it may be freely conceded that the legislature can not appropriate the property of the corporation to the public use, or transfer it to other corporations or individuals, any more than it can the property of individuals, yet it can prohibit the corporation from using it as a corporation, or from charging any tolls, or more than fixed rates of tolls, for its use. The cases cited hold that this right of charging tolls is a franchise granted by the State, and

such franchises as the State grants it has reserved the power to alter or repeal, in unmistakable language. No one will dispute that it would have been clearly within the legislative power, when the acts creating the corporation were passed, to have limited its charges; and, under the power to alter, it may do everything which it might have done at the time of creating the corporation.


It is also claimed 'that although it be held that the legislature of Wisconsin had the constitutional power to reduce the tolls of the company, yet that power could only be exercised on making compensation to the corporation, or the stockholders thereof. In other words, that chapter 273 is a violation of the thirteenth article of the bill of rights in the constitution of Wisconsin, which is as follows:

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

It would be a sufficient answer to this claim that chapter 273 does not in any way take or deprive the corporation of its property.

But it is argued that the income or profit of property is essentially the property itself, and that by reducing the tolls below the point of compensation the property is really destroyed, if not taken.

But this result would follow the repeal of the charter to a still greater extent, and no one has ever contended that where a charter was rightfully repealed, the stockholders would be entitled to compensation, in either case of the reduction of tolls below compensatory rates or the repeal of the charter; the title to the property is unaffected. It remains a fund,

1st. For the payment of the corporate debts.

2d. The residue is to be distributed amongst the stockholders. The franchises which the State granted are alone altered or recalled; in these the corporation had no right of property, had no right to expect their continuance beyond the pleasure of the legislature. It was the condition upon which they were granted and accepted, that they might be altered or repealed at pleasure of the State, and certainly no one can complain that the condition is enforced.

This question has already been fully adjudicated in principle by this court.

In West River Bridge Co. vs. Dix, 6 How., 307, it was held that the property of a chartered company might be taken for public use upon compensation being made.

In Vermont there was no reserved power to alter or repeal acts of incorporation.

Mr. Justice McLean stated the true principle governing the franchise on page 539. He says:


'No State could resume a charter under the power of appropriation and carry on the functions of the corporation. A bank charter

could not be thus taken, and the business of the bank continued for public purposes. Nor could this bridge have been taken by the State and kept up by it as a toll-bridge. This could not be called an appropriation of private property to public purposes. There would be no change in the use except the application of the profits, and this would not bring the act within the power. The power must not only be exercised bona fide by a State, but the property, not its products, must be applied to public use."

In other words, taking the property of a corporation by the right of eminent domain is wholly different from recalling its franchises by an act of the legislature under the reserved power. The State has no us for the particular franchises granted to a corporation. They emanate, when granted, from the sovereign power of the State; when the grant is repealed, their use is wholly destroyed. It is, therefore, impossible for a State to apply the particular franchises possessed by a corporation to a practical use; when recalled, they are merged in the higher sovereign power of the State. The alteration or repeal of corporate franchise is, therefore, not in any respect an exercise of the right of eminent domain, and no compensation is required to be made.

In Charles River bridge vs. Warren bridge, 11 Pet., 420, where the question arose whether the legislature had the right to wholly destroy the value of the Charles River bridge, which was erected and maintained in pursuance of a franchise granted by the State, by authorizing the erection of a free bridge so near as to render the Charles River bridge valueless.

The same argument was urged in that case as in the one at bar; but the court say, page 545;

"But the case most analagous to this, and in which the question came more directly before the court, is the case of the Providence Bank rs. Billings, et al., 4 Pet., 514, and which was decided in 1830. In that case it appeared that the legislature of Rhode Island had chartered the bank in the usual form of such acts of incorporation. The charter contained no stipulation, on the part of the State, that it would not impose a tax on the bank, nor any reservation of the right to do so. It was silent on this point. Afterward, a law was passed imposing a tax on all the banks in the State, and a right to impose this tax was resisted by the Providence bank upon the ground that, if the State could impose a tax, it might tax so heavily as to render the franchise of no value and destroy the institution; that the charter was a contract, and the power which may in effect destroy the charter, is inconsistent with it, and is impliedly renounced by granting it. But the court said the taxing-power was of vital importance and essential to the existence of government, and that the relinquishment of such a power is never assumed. The case now before the court is, in principle, precisely the same. It is a charter from a State. The act of incorporation is silent as to the contested power. The argument in favor of the proprietors of the Charles River bridge is precisely the same, almost in words, with that used by the Providence bank, that is, that the power







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