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the carriage of each one hundred pounds in weight. If the legislature may define a sum beyond which the company shall not charge for such a service, it may of course declare what it may charge and receive, and consequently the extent of lien to be discharged before the merchandise is permited to enter the borders of another State. If this is not a regulation of inter-state commerce, it is difficult to find an illustration of what is.

(5) The exceptioned contained in the 18th section but makes the unconstitionality of this act the more obvious and striking by clearly presenting one of the very mischiefs which it was the purpose of the framers of the constitution to prevent. Thus this section professes to allow the railroad companies to charge such rates as they please for all merchandise by them carried entirely across Wisconsin, for instance from Illinois to Minnesota or to Michigan, but absolutely prohibits them from charging beyond certain specified rates, for carrying the same merchandise into any part of Wisconsin from either of those States, or from any part of Wisconsin to the borders of either. The effect of this would be to encourage the companies to charge exhorbitant rates for the transportation of merchandise, from New York, for instance, or any other State, across the territory of Wisconsin, that they might be able thus to sustain themselves, under the ruinous rates of compensation imposed by the act for the carriage of the products of that State to the borders of an adjoining one, or such merchandise as the citizens of Wisconsin might need coming into it from another State.

Let us suppose, for illustration, these railways to be navigable rivers, and in the broad and general sense public highways, and that the State of Wisconsin should prescribe rates of compensation for the carriage of all merchandise thereupon coming from the State of Illinois to some place within Wisconsin, and of all products going from the latter State to Illinois, and should also provide that as to all merchandise transported from the latter State along those rivers through the State of Wisconsin, the carriers thereof might charge such rates as they saw fit. Would not such an act be deemed not only a regulation of commerce, but one most hostile to the State into whose territory such merchandise was to be transported after passing through that of Wisconsin?

(6.) The provisions of the act which attempt to prescribe the compensation to be charged for the transportation of passengers upon the railways of the company within the State, are also unconstitutional and void by force of decision of the Supreme Court of the United States, in Crandall vs. State of Nevada, 6 Wallace, p. 35. The doctrine of that case is based upon the theory that there can be no interruption whatever, by means of State legislation, of the free passage of persons from one State to another, and throughout each and all of the States of the Union. If the power to declare what shall not be charged involves, as it necessarily does, the power to say what may be exacted for the carriage of passengers, it follows that the State of Wisconsin may require each to pay, to use in substance the illustration of the court in the case cited, instead of three cents a mile, three dollars, or three thousand dollars, and thus, in a great national emergency, prevent persons

from leaving the State by means of railways, to go to other portions of the Union in aid of their government. In support of the proposition that no such right to cripple commerce or travel exists in the States, the supreme court in the case of the State freighttax before cited, propounds with much force, in addition to other considerations, the utter absence of right on the part of a State to fix rates of compensation for the carriage of freight or passengers, inasmuch as it neither owns nor has an interest in the property, the use of which it thus attempts to control; but in both these cases that court puts its decision upon high constitutional and national grounds, and these, it seems to me, are as applicable to this case as to either of those.

IV. The provisions of the act in question do not purport to be, and are not an alteration or amendment of the charter of the Chicago & Northwestern Railway Company; but if executed constitute a legislative confiscation of its property-a taking thereof for public use without compensation therefor, in violation of the constitution of Wisconsin-and a taking thereof without due process of law, in violation of the constitution of the United States.

FIRST.-Let us suppose that there existed no provision in the constitution or laws of Wisconsin authorizing the alteration or amendment of charters; and that this act had nevertheless been passed. Would it not be judicially defined as a law attempting to take property for public use without compensation; as one seeking to appropriate it without due process of law? Clearly such would be the effect of its provisions, and by these it would be defined and condemned. Looking at its language we vainly search for an expression showing an intent to alter the charter of any corporation; but instead is found a peremptory prohibition, under heavy penalties, against demanding or receiving greater rates than those prescribed, with the command to submit to that measure of compensation, until the commissioners appointed prescribe less, and then, under similar penalties, to submit to that. This act is in the usual form of penal legislation. It submits nothing for the approval or acceptance of the corporation. It is unequal and partial in its operation, and therefore should be condemned as void. It permits no participation by its directors or stockholders in fixing compensation for services and risks as common carriers, but in form and effect takes from them not only the control and management of the property in this vital respect, but actually prescribes rates of fare and freight so low-so utterly inadequate-that what has cost its owners more than $28,000,000, is rendered practically worthless; whilst the people of the State, and others who use the road, enjoy the proceeds of this legislative plunder. If the law, instead of fixing rates of compensation and appointing agents of the State to reduce these at pleasure, had simply provided that the charter of the corporation should be so amended as to permit the appointment by the legislature of a majority of directors not stockholders, who should sit as such, and possess all the powers of those chosen by the stockholders, such change would have been, in form at least, an alteration of the charter-whether valid or invalid-and such legislation would have been eminently just and respectable when com

pared with that we are considering; for directors thus injected might have possessed ordinary intelligence and honesty, and if so, would have acted in subjection to these qualifications, and so acting would have informed themselves of the cost of operating the road, and if not unduly ambitious of political advancement in Wssconsin, would, doubtless, have fixed upon rates less ruinous than those adopted by the statute in question.

SECOND. In this connection it should be borne in mind that the power to alter charters contained in the constitution of Wisconsin, was adopted in connection with the provisions therein contained, that "the property of no person shall be taken for public use without just compensation," and in subjection to that provision in the Constitution of the United States, which declares that "no person shall be deprived of property without due process of law. It cannot be supposed that the framers of the constitution of Wisconsin intended that the right reserved to the legislature to alter the charters of corporations could be so exercised as to violate either of the two fundamental constitutional provisions to which I have referred -adopted for the protection of property, in affirmance of the natural rights of men. Compared with these sacred guarantees, that of altering or amending charters was of trifling importance; and whenever it can be discerned that a legislative enactment, if enforced, will take property for public use without just compensation, or deprive any person of it without due process of law, such provision is in no just sense an alteration of a charter, and is never, by any construction, to be deemed such; and whenever either of these wrongs may be perpetrated under a statute, whatever may be its form, it is the duty of courts judicially to declare it void, and they should struggle to do this whenever its enforcement will lead to the taking or depreciation of property. In other words, such a statute should be construed strictly, and brought within the condemnation denounced by the two constitutional provisions I have invoked. In the language of Mr. Justice Story, in Wilkinson vs. Leland 2 Peters, 65, "The fundamental maxims of a free government seem to require that the rights of personal liberty and private property should be held sacred. At least no court in this country would be warranted in assuming that the power to violate and disregard them -a power so repugnant to the common principles of justice and civil liberty-lurked under any general grant of legislative authority, or ought to be implied from any general expressions of the will of the people. The people ought not to be presumed to part with rights so vital to their security and well being, without very strong expressions of such an intention." "We know of no case in which a legislative act to transfer the property of A to B without his assent, has ever been held a constitutional exercise of legislative power, in any State in the Union. On the contrary, it has been constantly resisted as inconsistent with just principles, by every judicial tribunal in which it has been attempted to be enforced.' to the same effect is the language of the supreme court of the State of New York, in Taylor vs. Porter, 4 Hill, 145, where it is said, "The security of life, liberty and property lies at the foundation of the social compact, and to say that this grant of legislative power'


includes the right to attack private property, is equivalent to saying that the people have delegated to their servants the power of defeating one of the great ends for which the government was established."

It should be here added that the prohibition in the Constitution of the United States, and in most all of the States, taking private property for public use without just compensation, and aginst depriving any person of property without due process of law, is but declaratory of the law as it existed and was declared by courts of justice, antecedent to any constitutional provision on the subject. Pumpelly vs. Green Bay Co., 13 Wall., 166, all cases there cited.

And in view of this, and of the declaration of this court in State Bank of Ohio vs. Koop, 16 Howard, 385, adopting the language of Chief-Justice Marshal in 6 Cranch, 135, "that the Constitution of the United States contains what may be deemed a bill of rights for the people of each State," it is clearly the duty of courts of justice so to apply the constitutional provisions I have mentioned as to include all cases in which a State legislature attempts to deprive a person of property without due process of law, irrespective of the form or pretext under which such deprivation is attempted.

THIRD-Is this attempted by the statute in question? It is well settled that where the property of a corporation is private-that is contributed by private persons, the corporation itself is private; and it is also firmly established that incorporated companies for the construction and operation of railways, by means of capital contributed by private persons, are private corporations, and their property, private property. State Bank of Ohio vs. Koop, 16 Howard, 381; Olcott rs. The Supervisors, 16, Wall., 678; People vs. Batchelor, 53 N.Y. R., 140.

Of this property the corporation can be deprived only when it is taken for public use on payment of just compensation-and this cannot be fixed by the legislature taking it-or when the deprivation is by due process of law. If the property of the Chicago and Northwestern Railway Company will be taken, if the act of March 11, 1874, shall be enforced, such taking certainly cannot be justified under the pretext of altering its charter; for we have already seen that authority to do this is reserved in subjection to the other two much more important constitutional provisions, and hence the reservation must read thus: that the legislature shall have power to alter the charters of corporations, provided that in so doing they shall not be deprived of their property. The question, therefore, recurs: Will the act in question, if executed, work this deprivation? for if so, it is not the alteration of a charter, the right to do which is reserved.

It was held in Taylor rs. Porter, 4 Hill, 142, before cited, in determining whether property had been taken without due process of law, that it was not material to inquire what quantum of interest had been taken. It is enough, said the court, that some interest-some portion of his estate--no matter how small-has been taken from the owner without his consent. In that case a right of way over land had been taken by legislative enactment, leaving the fee in possession of the owner; and this was held a violation of

that provision which forbids depriving any person of property without due process of law. So it was held in the case of Pumpelly vs. Green Bay Co., before cited, 13 Wall, 174, that where real estate is actually invaded by superinduced additions of water, earth, sand, or other material, or by having artificial structures placed on it, so as to effectually destroy or impair its usefulness, it is a taking within the meaning of the constitution. Can it be doubted that the enforcement of the act in question, which it is admitted would deprive the company of all income or profit from the use of its property, would also be a taking withing the meaning of the constitutional prohibition? Such a consequence is utterly distinct from alteration of its charter, and until courts are ready to disregard all solid distinctions, they will, it is respectfully submitted, determine, that whenever legislative interference with private corporations deprives them of property, to any, even the least degree, without due process of law, it is a violation of the Constitution of the United States not to be permitted, and not the alteration of a charter. It is not difficult to bear this distinction in mind, or judicially to enforce it. For what purpose did the legislature of Wisconsin frame and pass the act in question? The answer is quite obvious-it was to take from the company its income, and bestow it upon the public-upon those who should use the road. If it be said, the income was not taken because never received, the answer is, such might be the case if a person should be forbidden by the legislature to rent his house beyond a sum sufficient to pay taxes instead of as heretofore obtainining a rent sufficient to pay these, and a fair interest on the investment. In that event the act would not take his income literally, but it would effectually deprive him of it by giving the use of his property to another. So here the corporation is denied the privilege of demanding or receiving any income whatever from its railway, or for services as a common carrier, and is, therefore, as effectually deprived of its property without due process of law, as if the road and cars were forcibly taken.

I submit therefore, that neither in form or substance is the act of March 11, 1874, an alteration of the charter of the Chicago and Northwestern Railway Company.

V.-Under the reservation contained in the Constitution of Wisconsin to alter charters of incorporation, its legislature had no authority to prescribe rates of fare and freight chargeable by the corporation for services, as a common carrier; for the right to receive a reasonable compensation for such service, whether performed by an individual or corporation, is sacred and indefeasible, reposing upon foundations more solid and ancient than any corporate privileges, and not to be disturbed, or denied, except upon express assent of the party performing them, or by force of judicial decisions. The act we are now considering is, it is believed, the first legislative attempt ever made to fix this compensation without express authority in the charter so to do; and if it shall succeed upon the theory that it is in judgment of law an alteration of the charter of the Chicago & Northwestern Railway Company, it must be on the

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