judicial remedy before tribunals where both parties can be heard and the question decided upon proofs.

Third. The insertion in the charter of this provision, authorizing the company to fix rates of compensation, was, therefore, in substance inoperative and useless except to show the intent and meaning of the parties; for it conferred no power which the company would not have enjoyed without it, and afforded no exemption whatever from the common law liability I have mentioned; for the corporation, notwithstanding this, was bound to carry persons and freight at reasonable rates, to be judicially determined at the will of those affected. It has been suggested that this would be a tardy, expensive and unsatisfactory remedy. It is quite true that the exercise of Lynch law by a mob is quick and cheap as compared with the somewhat tedious and expensive modes of judicial proceeding. But the latter has usually been preferred by just and thoughtful men, as it gives the accused an opportunity to introduce evidence and to be heard in his defence-the embarrassment of which a mob rarely permits. So in case at bar, it is certainly a more summary, and doubtless to some persons a more satisfactory mode to fix the rates of compensation a Company may charge for its risk and service as a common carrier by legislative action or by State agents, where only the popular cry is heard-than in a court of justice, where the rights of the company and stockholders can be presented and considered.

Fourth. It is, however, as before suggested, decisive against the power of the State to fix or enforce these rates, that at the time the charter was granted, the compensation which common carriers were entitled to charge was a judicial and not a legislative question-to be decided by courts of justice. It is true that if the contract between the State and the corporation the former had been expressly authorized to fix these rates, that power might have been exercised. But no such authority was given, and indeed by the very terms of the charter it was agreed that these rates should be fixed by the company-an agreement, however, which was but declaratory of a right which, in its absence, would have existed in full force. Without such right, the property of the company would be substantially worthless; for whilst men are willing to invest in railways, subject to the common law rule, to be judicially enforced, that their charges must be reasonable a rule which would, of course, recognize the justice of allowing the stockholders to receive in dividends a fair interest upon the moneys by them advanced-they would decline so to invest at the peril of having a legislature or its creatures, without appeal, without responsibity-possibly to conscience, certainly to law-prescribe rates to be varied, perhaps, by every popular breath, certainly by every outbreak of popular prejudice and clamor against railways.

In view of the judicial nature of this question of compensation -settled so to be by the law of the land, by the courts, probably, of every State in the Union; by the English courts-in view, also, of the fact that when this corporation was created, the right to control property and to fix the compensation for its use was unre

stricted in the owner thereof, by force of constitutional provisions, and also upon general principles of justice and right; and in view, also, of the fact that the parties to this contract expressly stipulated that this right should forever remain in the company, can it be doubted that both parties intended that this power to alter or amend should never be so employed by the State as to fix these rates of compensation? That the parties intended to exclude such an authority seems entirely clear; and that, independent of such intent, it could not be exercised, is apparent from the considerations before suggested, and from the further illustration that agreements between the company and persons employing it as a common carrier, it was not competent for the legislature to make; for, as was said by Bronson, J., in delivering the opinion of the supreme court of the State of New York, in Taylor vs. Porter, reported in 4th Hill, page 140, "the power of making bargains for individuals (and a private corporation, such as a railway company, acts as such -53 N. Y. Rep. 141) has not been delegated to any branch of the Government, and if the title of a man, without his fault, can be transferred to another, it may as well be done without as with compensation." In further illustration, it may be added, that if the State could, as between it and the company, fix rates of compensation, these, if unreasonable, would not be binding upon third persons employing it, who might still insist upon having the question tried and decided by the courts; and it is submitted that few lawyers can be found who would advise that to such an action, the statute of the State fixing rates of compensation, or rates fixed by its commissioners, could be pleaded in bar. (See in this connection, opinion of the Supreme Court of the U. S., in case of State Freight Tax, 15 Wallace.)

To prohibit a person or corporation from making bargains for the compensation to be received for property owned by either-to prescribe what sum may be received therefor, and prohibit the receipt of more under heavy penalties, is certainly depriving such person or corporation of property without due process of law, for to deprive one of any part of the value of the use of an estate owned by him, is to deprive him of property therein.

If, therefore, a State is powerless, as it clearly is, to fix the prices a manufacturing company may receive for the cloths it makes; powerless to fix the rent a land-owner may receive for its property, is it not equally powerless to fix rates of compensation payable to common carriers? And if in the two cases first supposed, such acts would be in violation of the constitutional provision, which declares that no State shall deprive any person of property without due process of law, which phrase means without due and orderly proceedings in a court of justice, (4th Hill, 146–7,) is it not apparent that by no reasonable construction can the reservation we are considering permit a State to commit so grave an offense as to deprive a corporation of its property under a pretext of altering or amending its charter? Will not courts charged with the construction of contracts, empowered to administer justice, struggle if need be, against a construction which leads to consequences so oppressive,

unjust and destructive to the interests of the Northwestern Railway Company, its creditors and stockholders?

Finally, the court perceives that the purpose of this branch of the argument is to establish, that for various reasons, as between a corporation, its stockholders and the State of Wisconsin, the latter cannot so alter or amend a charter under this clause of reservation as to deprive the corporation of any of its property acquired in pursuance of its charter and absolutely owned by it, or of the unrestricted use and enjoyment thereof. It cannot take such property or the possession thereof-it cannot bestow it or its use upon others; it cannot direct its application to a purpose other than that to accomplish which the charter was granted, and it cannot destroy or cripple the ability of the company to effect this, by taking through its legislature or other agents, such control of the property of the company as deprives it of such reasonable compensation for the use thereof as the law of the land, administered by courts of justice, permits common carriers to receive. And I think it will be found, that no respectable court has ever so construed this right to alter or amend charters, as to permit the State to overstep the limitations I have here attempted to prescribe.

There are several cases where alterations and amendments have been adjudged valid; and several where the contrary has been held; but in neither of the former have the courts decided that a State could seize, take control of, or prescribe the compensation for the use of property of the corporation, by it acquired in pursuance of its charter, whilst in every instance where the question has arisen, whether the State might do either of these acts, the decision has been, as I believe, adverse to its right.

(1.) I will briefly call attention to a few cases which may be relied upon by the defendants:

In that of Scott vs. The Supervisors, 16 Wallace, Mr. Justice Strong, in delivering the opinion of a majority of the court, used this language: "The railroad can therefore be controlled and regulated by the State. Its use can be defined-its tolls and rates for transportation may be limited."

It is believed that in no other decided case has such language or its equivalent been employed by a court or by any judge thereof; nor was the question as to the authority of the legislature to alter, amend or repeal a charter in any aspect of that case before the court, or necessary to its decision. The expression was employed merely to illustrate the public character of railway corporationsthe only question in the case being whether a Statute of Wisconsin, authorizing the use of county obligations in aid of the construction of a railway, which in consideration of such aid, was to carry wheat at certain specified rates-the issue of such obligations having been assented to by a vote of the county-was constitutional; and a majority of the court held it was upon the ground that State or municipal aid might be granted for such a purpose.

If the court will examine the cases of Miller rs. The State, 15 Wallace, 478; Holyoke Co. vs Lyman, 15 Wallace, 560; Tomlinson rs. Jessup, 15 Wallace, 454; Penn. College Cases, 13 Wallace, 209;

Sherman vs. Smith, 1 Black, 587; Reciprocity Bank, 22 N. Y.. 9; Dodge vs. Wolsey, 18 Howard, 336; 14 Bourbon, 449; 10 Bourbon, 260; 8 Bourbon, 363, they will be found to decide nothing against the limitation of legislative power, as I have endeavored to state it. (2) But if the court will also look at the cases of Sage vs. Dillard, 15 B. Monroe, 340; Commonwealth vs. Essex Co., 13 Gray, 239; Miller vs. Erie R. R. Co., 21 Barbour, 513, (cited and approved in 15 Wallace, 498,) they will be found fully to establish the proposition stated that under this reservation the power to desroy or impair vested rights of property cannot be exercised by the State; and indeed the doctrine of all these cases is in substantial harmony with the opinion of Chief Justice Shaw, in 13 Gray, and the principles therein laid down fully support the view I have ventured to insist upon as to inviolability of the right of the Chicago & Northwestern Railroad Company to control the property in it vested, and to fix, subject to the rule aforesaid, the compensation for its risk and services as a common carrier.

Fifth. Whether the power to prescribe rates of compensation for the services of common carriers be a legislative or judicial question; whether it is to be exercised by the State as sovereign, or as a party to the contract; and whether, in view of what has been urged, the legislature of Wisconsin. may or may not interpose and fix such rates of compensation, it is nevertheless submitted, that this power cannot be delegated to persons appointed by the State, and hence that the admitted purpose of the Railway Commissioners, defendants herein, to exercise it, is unlawful, and should be prevented.

VI. For the purpose of presenting to the court the remaining, and not the least important, questions involved in this case, which are that the act in question is utterly void, because it impairs the obligations of contracts entered into between the corporation, the State of Wisconsin, and the United States-the corporation and certain of its stockholders, who are appellants here, and also between the corporation, its bondholders and mortgagees,-I must refer to the history of the organization of the Chicago and Northwestern Railway Company, which, as before stated, is composed of at least two corporations created by the laws of Illinois, and of three or more created by the State of Wisconsin, such organization being the result not only of the Statutes of those two States, but of agreements entered into in pursuance of and upon the faith thereof between the several companies thus consolidated and their stockholders; and when we have traced this organization, it will be found that we have to consider not merely the relations of a single State to a corporation of its creation, but those of this consolidated company to its stockholders, bondholders and mortgagees, their several relations to each other, and also the relations, rights, obligations and duties of the States of Wisconsin and Illinois to each and all of these, and in view of their joint legislation to each other also.

On the 3d June, 1856, as before stated, by an act of Congress, entitled "An act granting public lands to the State of Wisconsin, to

aid in the construction of railroads in said State," and printed in volume 11, of the United States Statutes at Large, page 20, there was granted to the State of Wisconsin certain alternate sections or parts of sections of land, for the purpose of aiding in the construction of a railroad therein mentioned; and by the third section of the act, it was expressly declared that the land thereby granted to the State, should be subject to the disposal of the legislature thereof, for the purposes of the said act mentioned, but no other; and that the railroads to be constructed should remain public highways for the use of the Government of the United States, free from toll, or other charge upon the transportation of property or troops of the United States.

The State of Wisconsin accepted these lands upon the aforesaid trust, and could execute it only by constructing and maintaining the railroad as required, or conveying the lands to a corporation having capacity so to do, and thus to render the required consideration; and such capacity could only exist in a corporation having perpetual succession and power so to manage its roads as forever to keep them open and in working order.

The State, by virtue of section 10, article 8, of its constitution, had ample authority to execute the trust in either mode. That section declares that "the State shall never contract any debt for works of internal improvement, or be a party to carrying on such works. But when grants of land or other property shall have been made to the State, especially dedicated by the grant to particular works of internal improvement, the State may carry on such particular works, and shall devote thereto the avails of such grants, and may pledge or appropriate the revenues derived from said works in aid of their completion."

The legislature of Wisconsin attempted faithfully to perform this trust and duty by an act passed under authority of this clause, and approved October 11, 1856, entitled "An act to execute the trust created by the act of Congress, entitled 'an act granting public lands to the State of Wisconsin to aid in the construction of railroads in said State,' approved June 3, 1856," by incorporating the Wisconsin and Superior Railroad Co., and granting a portion of said lands thereto.

By the very title of this act the State professed to be acting in the discharge of the trust thus devolved upon it; and a careful examination of the act will show that the legislature created an artificial being, and endowed it with ample power to perform its duties in exact harmony with the requirements of the act of Congress and of the aforesaid constitutional provision. The corporation thus created was to have perpetual succession, and was to enjoy all the rights, powers and authorities, privileges, franchises and immunities necessary and proper to the full and complete possession, exercise and enjoyment of those expressly conferred. Without perpetual succession it could not have executed the trust which it was the duty of the State of Wisconsin to effectuate.

It was to be capable of contracting and being contracted with, for, and as to all the purposes in the act contained, and was per