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lative or other inquiry, and without notice to the corporation to be affected, to seize upon the management of their railways, fix the rates beyond which they shall not charge for services, at a time when those are so low that no dividends can be paid upon their common stock, and but three and a half per cent. upon the preferred, and thus to utterly prostrate the credit of these companies at home and abroad, reducing the value of their bonds held by foreign and other capitalists to the extent of many millions of dollars, and causing these obligations to the amount of hundreds of millions to be dishonored for non-payment of interest. It is not surprising that in view of the national disgrace thus inflicted upon our country by this State legislation, our consul at Rotterdam, in an official communication addressed to the State Department at Washington, should have said: "Concerning the transactions in United States railroad shares which, before the catastrophe in the United States, had been so important an element in the Dutch money-market, I have but to repeat the statement of my preceding annual report. Far from showing any sign of returning confidence in United States railroad shares, the Dutch public rather manifests increasing aversion. The sale of United States railroad securities, even at the lowest rates, is limited to the smallest minimum. The laws recently enacted in Wisconsin concerning railroads have just affected those securities, in which the Dutch capitalists had invested enormous sums, namely, the Chicago & Northwestern, and the Milwaukee & St. Paul Railroads. As yet the holders of these bonds still believe that the hopes created and entertained by the directors of these railroads will be realized, and that those laws will be annulled by the supreme court. Should this not be the case, a new depreciation of these securities, as well as all other Aerican railroad bonds, may be expected. For years to come, no investment of Dutch capital in United States railroad enterprises will be made. Financiers who, in this country, have been dealing in United States railroad securities, agree in declaring that a revival of confidence in American railroad enterprises can only be expected when a radical change of the present legislation on railroad companies takes place in the different States."
To what action of foreign government for the protection of their citizens, who have invested millions in these securities, this legislation, if enforced, may lead, cannot be foretold; but it is quite certain that, if by a similar national act of confiscation, our government should thus seize the property of foreign capitalists on either of the pretexts here put forth on behalf of Wisconsin, they would be condemned as frivolous excuses for national robbery by the judgment and moral sense of the civilized world; and would afford but a poor shield against the international weapon of reprisal which may rightfully follow the refusal of our nation to satisfy the just claims of citizens of another, who have been refused protection of liberty or property by our laws. A State of our Union may plead that, as it can hold no intercourse with a foreign government, it cannot be subjected to the consequences of this doctrine; but this immunity will hardly justify a disregard of duties which every political com
munity is bound to perform toward those who place themselves or their property within its jurisdiction. Nor is it wise, or respectable for any State of our Union to bring discredit upon itself and sisters by outraging the rights of foreigners, merely because it cannot be punished for so doing? A decent pride, if not a native honesty, should rather induce it to seek the respect of foreign nations, even if denied the priveleges of international recognition and association. It should be borne in mind, however, that it will be difficult to make foreign nations comprehend, how it is, that a great people like ours, should have so organized their internal civil administration that each and all of our great State divisions should be controlled by legislatures possessing unlimited power to plunder foreign citizens without responsibility to their governments, or to any department of our own, and whilst, if this be so, it cannot fail to degrade us in the esteem of all honest men, it would afford but a poor excuse against a claim upon our general Government for restitution, should the Western legislation already existing be enforced to the substantial confiscation of hundreds of millions of railway bonds, whose foreign owners now anxiously await the decision of this court. Should this hope fail them, but one source remains; for after what has occurred it would be but mockery to ask them to rely upon the justice of States, which, although enriched by contributions of foreign capital, are nevertheless capable of seizing and appropriating it, upon the pretences here put forth. In using the words seizure, appropriation, and confiscation of this property, to indicate the acts authorized, I employ no exaggerated phrases, for if the provisions in question shall be enforced, they result in nothing less. A statute which should prohibit a person, under heavy penalties, from renting his property beyond certain rates-barely sufficient to pay cost of management and taxes-which should authorize certain persons to reduce even these at pleasure-would as effectually seize, appropriate, and confiscate it, as if the entire title were taken away. Indeed the acts here authorized are the worst possible form of confiscation, for whilst the power asserted is, to declare what may be received as income-which is the sole purpose of investment-it is made the duty of the corporation to employ the money of its stockholders in operating, at vast expense and risk, these roads; and no matter with what economy, skill and labor this may be done, there still stand ready the legislature, or its appointed agents, to reduce the prescribed rates, if by this successful management they shall accumulate beyond running expenses and taxes. No legislative outrage can exceed this; and whilst one Wisconsin Company-the West Wisconsin Railway Company-has already been crushed by it, those here represented must, as admitted upon this record, share a similar fate, if not saved therefrom be the decision of this court.
Respectfully submitting this preliminary statement, I now proceed to argue the question here involved as grave, and in their consequences as important, as any ever presented for judicial consideration.
I. The court below had jurisdiction of the parties; and if, as averred in the bill, the defendants were about to enforce execution of an unconstitutional act of the legislature of Wisconsin, to the injury of the complainants' rights of property, it was the duty of the court to restrain this by injunction.
1. Where jurisdiction depends upon the parties, the court looks only to those named in the record, and though a State may be solely interested in the enforcement by its agents of an unconstitutional law, those charged with its enforcement are the proper parties defendants, and may be restrained. Osborn vs. Bank of the U. S., 9 338; Davis rs. Gray, 16 Wallace, 203.
2. The facts stated in the bill clearly show, that if the act in question shall be executed, the property of the complainants will be sacrificed and the contracts under which the same is held impaired; and if these are protected by the provisions of the Constitution of the United States and of the State of Wisconsin, as we insist they are, the relief prayed for should be granted.
II. The statute in question was repealed by the act of March 12, 1874.
1. The provisions of the two are utterly inconsistent with each other, and both cannot stand.
2. Although by joint resolution of March 12, 1874, the Secretary of State was directed not to publish said act until April 28 of that year, this resolution has not the force of a law of the State, and could not detract from the rigor, as such, of the act, the publication of which was postponed.
It might not be operative for the purpose of enforcement until the 28th of April, but existed as a law from the time of its passage on the 11th of March; and the act of March 12 being passed expressive of the legislative will, that the law of the previous day should be repealed, the effect of that could not be averted by the passage of a joint resolution.
III. That portion of the act of Wisconsin, passed March 11, 1874, which prescribes what rates may be charged and collected by the Chicago and Northwestern Railway Company, for the transportation of freight upon and over its roads within that State, is, in the respects hereinafter mentioned, unconstitutional and void, upon the ground that it is a regulation of inter-State commerce, of which the Congress of the United States has exclusive jurisdiction, by force of that provision of the Constitution empowering it to regulate commerce among the several States.
1st. Wherever the subjects over which power to regulate commerce is asserted, are in their nature national, they may justly be said to be such as to require the exclusive legislation of Congress: and the transportation of passengers or merchandise through a State or from one State to another, is of this nature. (Case of the State Freight-Tax, (15 Wallace, 279-80.)
And it is of national importance that over such subjects there should be but one regulating power.
2d. The third section of the act in question declares that all freights thereafter transported upon any railroad or part of a
railroad in said State, shall be divided into four general and seven special classes, which classification, when carefully examined, will show that the purpose of the framers of the act was to secure advantages to those who desired to transport the principal products of that State over all others; and section 4 declares that no indidual company or corporation, owning, operating, managing or leasing any railroad or part of a railroad, shall charge for or receive a greater or higher rate for carrying the articles in said section enumerated than is therein specified. No discrimination is made by said section between freights to be carried for citizens of the State or for persons not citizens; nor is any made between articles to be transported wholly within the State and those taken up without the State and brought into it, or those taken up within the State to be carried out of it. The transportation of all freight, of all persons, whether citizens of that State or of other States, or aliens, from whatever part of the country, or of the world it may have been brought, or whithersoever it may be going, come alike under the regulation attempted to be imposed upon the carriage of merchandise by the provisions of this act. The only exception made is contained in the 18th section, framed undoubtedly upon the theory that the provisions of the act, unless somewhat restrained, would be unconstitutional; and this only exempts from the operations of the statute, freight coming from beyond the boundaries of the State, and to be carried entirely across or through it. The person who drew this section evidently supposed that Congress had no power to regulate that commerce which consists in sending merchandise from other States into Wisconsin, nor that which consists in sending products from that State into a sister State; but that this power of Congress was limited to the regulation of such commerce only as consists in sending merchandise, for instance, from the city of New York entirely across or through the State of Wisconsin into another State. This legal conception of the meaning and operation of a great constitutional provision, designed to preserve uniform and uninterrupted commercial intercourse between all the States of the Union, reduced to plain English, may be stated as follows:
(1.) The State of Wisconsin may impose any restriction it pleases upon the transportation of merchandise from any point within that State to another State; and hence the State of New York or any other may restrict at will the conveyance of merchandise from it to the State of Wisconsin or any other.
(2.) So, too, the State of Wisconsin, whilst it cannot impose regulation or restriction upon the conveyance of merchandise from any other State, entirely through and across its territory, may, if such merchandise has been sent, for instance, from the city of New York to a point within Wisconsin, cripple its progress from the moment it touches that State until it reaches its destination therein, by any restriction it may see fit to impose; and so, by a like interpretation, may the progress of merchandise which Wisconsin allows to pass unrestricted from another State through its territory 27 R R C-APP.
towards its destination in a State next beyond, be crippled in the same manner by the legislation of the latter State.
(3.) The practical result of this remarkable interpretation of the Constitution would be, that as to merchandise sent from one State of the Union to an adjoining State, the legislatures of both may unite in crippling its progress by any legislative restrictions they see fit to impose; whilst if the same merchandise be sent entirely across such adjoining State, the crippling ability of its legislature is suspended only to bring into full play the energies for that purpose of the State beyond, within whose borders the merchandise is to be finally deposited; if indeed the legislation of the State from which it started, shall not have so paralyzed its movement as to compel a halt before reaching the adjoining State, whose powers for mischief being temporarily suspended, permits it to pass on without interruption.
(4.) If it shall be urged, in opposition to the opinion of the contriver of this 18th section, that the provisions of the act prescribing what rates may be charged for the carriage of freight, do not in substance regulate commerce between the States, because they purpose to reduce and not to increase charges and burdens upon the transportation of merchandise from one State to another, and therefore do not restrict but rather encourage such commerce, the answer is
(a,) As the State is powerless to regulate commerce because of the exclusive right of Congress so to do, and as the purpose of all regulation is to encourage, not repress it, any regulation of it whatever, whether for good or evil, is a usurpation of power by the State. Of the manner of its regulation, Congress is the exclusive judge, and that body might possibly suppose that to encourage the construction of railways and other means of transportation of merchandise by permitting common carriers thereof to receive reasonable rates of compensation for their service and risk, as such, subject to their common law obligations, would be much more likely to promote commerce between the States than to permit the latter to prescribe rates so inadequate as to discourage the building of railways altogether. Congress might indeed take a broader and wiser view of the subject than is propounded by the act in question, and arrive at the conclusion that inasmuch as the railways of Wisconsin, and of the great, growing and prosperous West, would never have been built but for the aid of capital from other States and from abroad, which would not have been afforded if the legislation in question could have been foreseen, that such portion of it as attempts to regulate commerce by seeming at first blush to reduce rates for the carriage of merchandise, really tends but to cripple and destroy it.
(b) It cannot be justly said, however, that the power thus asserted by the State of Wisconsin, which pretends only to prescribe rates beyond which the company may not charge, is not in substance the exercise of a power to regulate the entire subject of charges for the transportation of merchandse from one State to another, by declaring what sum may or may not be demanded for