petually to have, use and enjoy, maintain and operate a railroad, beginning and terminating as in the charter is declared. It was expressly declared also that the company should have perpetual right, power and authority to transport, take and carry property and persons upon the said roads by the force and power of steam, or otherwise; and also to have the power and authority to operate its said roads, or either of them, in connection with any and all other railroads which might cross, come up to, or connect with such roads or either of them upon such terms as should be mutually agreed upon by and between said companies. On the completion of said road, or any part of it, it was declared that the company should be authorized and empowered to demand and receive such sum or sums of money for the transportation of persons and property, and for the storage of property, as it should from time to time deem reasonable. Such lands as the company should obtain for the purpose of building and operating its roads, it had authority to acquire in fee simple, absolute and forever; and it was expressly invested with the title to the land and all and singular the rights, privileges and immunities granted or conferred, or intended to be granted or conferred by the act of Congress; and was to be subject also to all the restrictions, impositions, duties and obligations contained in such act; it being expressly declared in said charter that the said lands so granted by Congress were conveyed by the State, to the company, in consideration that the latter should comply with the terms of the grant thus made, and of the act of Congress. And it was also expressly provided that all the affairs and business of the company should be conducted, managed and carried on by a board of fifteen directors, who should be stockholders thereof, and that such stockholders should be entitled to one vote for each and every share of stock held by them. The corporation was also authorized to borrow any sum or sums of money from any person or persons, to make notes, bills, bonds, mortgages, and all other papers or securities of any amount or kind, as might be deemed expedient by the corporation, in consideration of any loan or any discharge of any liabilities it might incur in the construction, repair, equipment or operating of the road. And was also empowered to prescribe the sums for which each of the bonds should be issued, and the time or place, or places, when and where the principal and interest on the same should be payable, and, in its corporate capacity, to make, execute and deliver mortgage or mortgages, deed or deeds of trust upon the whole or any part of its railroad constructed, or authorized to be constructed, and upon the lands of the United States granted to said corporation, and upon any other or all of its estate, real, personal or mixed, in possession or expectancy, and to confer upon the trustee or mortgagee full and ample power to enter in and upon, and take possession of, have, use, enjoy, sell and dispose of the whole or any part of said railroad, estate, real, personal or mixed, together with the functions appertaining to said railroad, and all corporate or other franchises, rights and privileges of said railroad

company.

The duration, powers, franchises and obligations of this com

pany have been thus particularly stated, because they have been, by the legislatures of Wisconsin and Illinois, expressly conferred upon the Chicago and Northwestern Railway Company, as now organized. It is to be noted that the duty was devolved upon the Wisconsin and Superior Railroad Company by act of Congress, and the State of Wisconsin, forever to keep open the roads to be constructed, and to maintain them as a fit and proper highway for the purposes mentioned; and as a full consideration for the performance of this duty, there was vested in the corporation the title to the land thus granted in fee simple, with authority to sell the same at pleasure. From the performance of this duty and obligation, thus contracted by the corporation, it could never relieve itself. Nor, could the State of Wisconsin, having accepted this grave trust, and made the grant in conformity therewith, to a corporation of its own creation, ever so interfere with it in any manner as to deprive it of the power to perform the contract made upon sufficient consideration with the State, and which the State had authorized and required it to make with the government of the United States. To deprive it of the necessary means of performing this undertaking, would be a plain violation of the Constitution of the United States. If it shall be urged that by the constitution and laws of Wisconsin its legislature may alter or repeal this act of incorporation, the answer is: first, this corporation is not subject to such reservation; and second, it cannot do this in violation of the trust it undertook to perform for the benefit of the United States, and in violation of a contract entered into by the State with a corporation expressly created by it for the purpose of performing that duty to the United States.

I have stated that an examination of the charter of this corporation will show that the powers and duties conferred upon it were it precise harmony with the duty of the State of Wisconsin, faithfully to execute this trust. For, to enable the company to perform its obligation by keeping the railways it was to construct, perpetually open as highways, for the benefit of the government of the United States, it was indispensable that it should have the power perpetually to manage and operate them; and we find that the company was to be absolutely governed by its board of directors, to be elected by its stockholders, and might demand and receive such sum or sums of money for the transportation of persons and property, and for the storage of property as it should, from time to time, deem reasonable. It was, moreover, empowered to mortgage not only all its property and all its franchises and privileges, but by the very terms of the act the mortgagees or trustees, who might stand in that relation, were to be permitted to enter into and upon the railway and all the property of the company, to enjoy all its privileges and franchises which, of course, would include the right of charging and receiving such sums for the transportation of passengers and freight as they should see fit. And they were also authorized to sell and dispose of the whole or any part of the railroad estate, real, personal or mixed, together with the functions ap

pertaining to such railroad and all corporate or other franchises, rights and privileges thereof.

In presenting to the court the proposition that the act in question is void because it impairs the obligations of contracts in violation of the Constitution of the United States, I insist:

That the State of Wisconsin has, upon abundant consideration, so contracted with the Chicago and Northwestern Railway Company and its stockholders, that its obligations will be impaired, and the property of the company thereby rendered worthless if the act in question shall be enforced.

1st. Although a right is reserved to the State to alter certain charters of incorporation, it is under no obligation ever to do either, and hence it may perpetually refrain therefrom. It is quite clear also that this privilege of alteration is entirely consistent with the power of the State to make contracts upon a valuable consideration, as well with corporations as with natural persons; for as was said by this Court in State Bank of Ohio vs. Reop, 16 Howard, 389, There is no constitutional objection to the exercise of the power to make a binding contract by a State. It necessarily exists in its sovereignty, and it has been so held by all the courts in this country. A denial of this is a denial of State sovereignty. It takes from the State a power essential to the discharge of its functions as sovereign. If it do not possess this attribute, it could not communicate it to others. There is no power possessed by it more essential than this.' And in the same case the court said, "A contract between the State and individuals is as obligatory as any other contract. Until a State is lost to all sense of justice and propriety, she will scrupulously abide by her contracts, more scrupulously than she will exact their fulfilment by the opposite contracting party." And in Fletcher vs. Peck, 6 Cranch 135, Chief Justice Marshall said: "The principle asserted is that one legislature is competent to repeal any act which a former legislature was competent to pass, and that one legislature cannot abridge the powers of a succeeding legislature. The correctness of this principle so far as respects general legislation can never be controverted. But if an act be done under a law a succeeding legislature cannot undo it. When then a law is in its nature a contract, a repeal of the law cannot divest those rights, and the act of annulling them, if legitimate, is rendered so by a power applicable to every individual in the community."

And in the same opinion he says: "Whatever respect might have been felt for the State sovereignties, it is not to be disguised that the framers of the constitution viewed with some apprehension the violent acts which might grow out of the feelings of the moment, and that the people of the United States in adoping that instrument have manifested a determination to shield themselves and their property from the effects of the sudden and strong passions to which men are exposed. The restrictions on the legislative powers of the States are obviously founded on this sentiment, and the Constitution of the United States contains what may be deemed a bill of rights for the people of each State.'

It needs no argument to establish that a State may make a binding contract with a corporation, and it is submitted it may do so in any form either within or outside of the charter. Thus if by that instrument it should be stipulated that in consideration of the payment of a certain sum of money actually received by the State, it would levy no taxes upon the corporate property for the period of ten years, or that in consideration of a like exemption a Railway Company would during that period transport over its road all property of the State, free of charge, would not these stipulations constitute a binding contract, operative alike upon State and corporation; and would the fact of their incorporation in charters impair their force? We should not forget the purpose of the reservation in question. It was not designed to relieve the State from its obligation faithfully to perform contracts founded upon considerations paid or which might be exacted from corporations. By a fair and indeed necessary construction of the reservation, all such contracts must be excepted, and only those provisions of charters be included which come within the supposed mischief intended to be remedied; and I am sure it cannot be successfully contended that any respectable State ever deemed it a wrong to be compelled to discharge its honest obligations, whether to corporations or natural persons. The design was to be relieved from the doctrine of the Dartmouth College case, and not to be incapacitated from making contracts with corporations. Such corporate franchises as were ordinarily conferred upon the general consideration of advantage to the public, were to be subject to alteration and withdrawal; but no one can justly insist that a State which had for an adequate sum stipulated in the charter of a corporation that it should be exempt from taxation for the period of ten years, could in violation of this enforce payment of taxes within that period. Other illustrations of binding contracts embodied in charters might be put, but it is deemed unnecessary, for whenever a State for a sufficient consideration makes a contract in any form with a corporation, which if made with an individual would be binding, such contract the State must perform; and where the State has by contract with a corporation of its creation exacted from it an agreement to do certain acts for third parties who have a right to exact performance as against the corporation, the State cannot so cripple or impair the capacity of the former as to prevent it from discharging the obligations thus imposed.

2d. In view of these general observations I now proceed to call the attention of the court to facts which established such contract between the State and the Chicago and Northwestern Railway Company and its stockholders, as is protected by the Constitution of the United States, and will be impaired or rendered worthless if the act in question shall be enforced.

By the act of Congress of June 3, 1856, before mentioned, there was granted to the State of Wisconsin, to aid in the construction of railways, certain sections of land upon the express condition that it should be subject to the disposal of the legislature thereof for the purposes in the said act mentioned, but no other; and 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. On the 11th of October, 1858, in execution of said trust the legislature of Wisconsin passed "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 Superior and Wisconsin Railroad Company, and granting a portion of said lands thereto." In receiving these lands the State became bound to employ them for the purposes mentioned and no other; and this was to aid in the construction of railroads which should remain (of course forever) public highways for the use of the government of the United States, free from toll or other charge for the transportation of property or troops to them belonging; and it was expressly declared in the charter of the corporation created to execute this trust, that the lands so granted by Congress were conveyed by the State to the company in consideration that the latter should comply with the terms so made, and of the act of Congress. The corporation was by the terms of its charter endowed with power to perform the obligations thus devolved upon it by the State, on condition of doing which it was to own and possess the lands thus conveyed in fee simple. To enable the incorporation to discharge this duty, it was declared to have perpetual succession; for without this it could not maintain the railroad as a perpetual highway for the use of the government, and it was moreover expressly declared that all the affairs and business of the company should be' managed by a board of directors who should be stockholders thereof; and among other powers, that it might demand and receive such sums for the transportation of persons and property, and for the storage of property, as it should from time to time deem reasonable. Other provisions its charter contained not necessary to be here particularly stated; but from what has been set forth it is quite apparent.

FIRST. That in exacting from the corporation its pledge perpetually to maintain its railroad for the free use of the United States as stipulated, as a consideration for the conveyance of said lands, the State came under the most solemn obligation to the company to permit it to enjoy such of its stipulated privileges as would enable it to perform its contract with the United States, and with the State itself. The latter was bound and had constitutional power to use the lands it received for the construction of such a railroad for such purpose as was indicated; and until conveyed to the company, they were held in trust for that purpose. When so conveyed, the trust and duty devolved on the corporation, which undertook in consideration of the grant, and of course in reliance upon the stipulations in the charter, which should enable it so to do, faithfully to execute this trust, and to perform the obligation cast upon it to the United States, failing to do which it would be responsible for its default to the Government. And yet in the face of this agreement with the State, and with the United States, it is here asserted that the State of Wisconsin might at any time after granting the