would be enforced by a judicial proceeding, in which the alleged extortionate or unjustly discriminating character of the charges drawn into question would be judicially ascertained. Such remedies against common carriers already exist at the common law, and to these, as well as to the common law liabilities of common carriers generally, incorporated carriers, as well as natural persons, are subject by the public nature of their employment. Very different, however, from such a mode of regulation by general laws, with a liability to judicial remedy, is the attempt by a legislature to prescribe in advance a law of charges for carriers-to do which is, in effect, to take out of their hands the managment of their own business."

The case of The Commonwealth rs. Proprietors of New Bedford Bridge, 2 Gray, 339, is also directly in point.

In that case, the charter of the bridge company required it to construct in the bridge "two suitable draws, which shall be at least thirty feet wide." A subsequent act of the legislature required the company to construct a draw not less than sixty feet wide, and in a manner to be approved by a commissioner to be appointed by the governor. The company declined to obey the act, insisting that it was unconstitutional; and the question was brought before the courts. It was contended for the State that the legislature could determine what was a "suitable draw," as it is now contended that the legislature of Minnesota may determine what is a “reasonable compensation." The opinion of the court upon this point is so clear and conclusive, that we will give a considerable extract from it, commencing on page 349:

"But it is urged-and this constitutes the stress of the argument on this part of the case-that the use of the term "suitable" in the act incorporating the defendants, as applied to the construction of the draws, being a term in its nature indefinite and uncertain, did not fix and absolutely settle the duty and obligation of the defendants in this particular; that these, with the exception of the minium width of the draw, were thereby left open and undetermined; and by necessary implication the legislature have the right reserved to them of regulating, from time to time, the construction of the draw, and of prescribing what shall be suitable, as respects their location, materials and dimensions. But we cannot yield to the force of this argument. It is founded on an entire misapprehension of the relations of the parties, as created by the act of incorporation. They are but parties to a contract. Each has equal rights and privileges under it, and neither can interpret its terms authoritatively, so as to control and bind the rights of the other. The commonwealth has no more power or authority to construe the charter, than the corporation. By becomin a party to a contract with its citizens, the government divests itself of its soverignty, with respect to the terms and conditions of the compact, and construction and interpretation, and stands in the same position as a private individual. If it were otherwise, the rights of parties contracting with the government would be held at the caprice of the sovereign, and exposed to all the risks arising from the corrupt or ill-judged

use of misguided power. The interpretation and construction of contracts, when drawn in question between the parties, belongs exclusively to the judicial department of the government. The legislature have no more power to construe their own contracts with their citizens than those which individuals make with each other. They can do neither without exercising judicial power, which would be contrary to the elementary principles of our Government, as set forth in the Declaration of Rights, article 30. No better illustration of the dangerous consequences which would follow from a different doctrine could be had than is afforded by the case at bar. If the legislature have the power to decide upon the meaning of the terms of the contract, and to determine what shall be deemed suitable in the construction of the bridge and draws, there can be no limit placed upon the exercise of this power. If they have the right to prescribe a draw of sixty feet in width, they may hereafter require the defendant to extend it to one hundred feet, or to build it across the entire space between the shore and adjacent island. So, too in regard to the construction of the bridge itself. The act of incorporation required that it should be well built, at least twenty-four feet wide, of good and suitable materials.' By parity of reasoning it would be competent for the legislature to enact that the bridge should be rebuilt one hundred feet in width, and be constructed of iron. In a word, the argument leads directly to the conclusion that the legislature have the power to annex new and onerous conditions to the contract at their pleasure, and thus effectually destroy the value of the franchise granted to the defendants.

Such a doctrine can not be maintained without overthrowing all the salutary and well established principles applicable to this species of contract between the Government and its citizens. For these reasons, we are of the opinion that the act of 1851, c. 318, ex proprio vigroe, has no binding force upon the defendants, and that this indictment can not be sustained against them upon proof of a neglect and refusal to comply with its requsitions.

* * *

"Whether the defendants have, in fact, complied with the terms of their charter, by constructing their draws in a suitable manner, so as not unreasonably or unnecessarily to obstruct or impede public navigation, is a question which neither the legislature nor the defendants can determine absolutely, without the consent of the other, when it is drawn in question between the defendants and the commonwealth. Like all other matters involving a controversy concerning public duty and private right, it is to be adjusted and settled in the regular tribunals where questions of law and fact are adjudicated on fixed and established principles, and according to the forms and usages best adapted to secure the impartial administration of justice."

The same question was adjudged by the supreme court of Illinois, in the case of the Chicago & Alton R. R. Co. vs. The People, 67 Ills., 11.

The act before the court, in that case, was intended to impose a fine upon any railway guilty of unjust discrimination, and it made the fact that a railway company charged a larger sum for carrying

freight any distance than it charged for carrying the same quantity and kind of freight a greater or the same distance, though on another portion of the road, conclusive evidence of unjust discrimination. The court held the act void, on the ground that all discrimitions were not necessarily unjust, and whether they were, in any given case, reasonable and proper, was a judicial question upon which the wailway companies had a right to be heard and to take the verdict of a jury. In giving the opinion the court used the following language:

"But the act itself goes further. It forbids any discrimination, whatever, under any circumstances, and whether just or unjust, in the charges for tranporting the same classes of freight over equal distances, even though moving in opposite directions, and does not permit the companies to show that the discrimination is not unjust.' "The mere proof of the discrimination makes out a case against the railway companies, which they are not allowed to meet by evidence showing the reason or propriety of the discrimination, and then, upon this sort of ex-parte trial, the act imposes as a penalty for the offense a forfeiture of the franchise, which might be equivalent to a fine of millions of dollars. The object of the law is commendable, but such a proceeding, to be followed by such a penalty for the first offense, can not be sustained. It could only have been authorized through the inadvertence of the legislature. The law, as it now stands, makes an offense out of an act which might be shown not to be an offense, but an exercise of wise discretion, really beneficial to the people of the State, and while debarring the companies from all right of explanation, confiscates their franchises upon the first conviction. The legislature can not raise a conclusive presumption of guilt against a natural person, from an act that may be innocent in itself, taking from him the privilege of showing the actual innocence or propriety of the act, and confiscating his property as a penalty for the supposed offense.

"Those provisions of our constitution which forbid the deprivation of life, liberty or property, except by due process of law, and which guarantee the right of trial by jury, as heretofore enjoyed, and the right in all criminal prosecutions to appear and defend in person and by counsel, would all be violated by such a law. Those provisions, it is true, are designad to apply only to natural persons; but artificial persons must be permitted to invoke the spirit of justice which prompted them, so far as may be necessary to protect their property and franchises against the operation of a law that substantially condemns without a trial."

In the case of Stamford vs. Pawlet, 1 Crompton & Jervis, 57, a question was before the court of exchequer, as to the right of a corporation to take reasonable tolls. The court, after deciding in favor of the right, makes the following remarks which are very germane to the point now under consideration:

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We also think the observation that to permit a grantee to take whatever may appear to him to be a reasonable toll, is to make a grantee a judge for himself, and to expose the subject to extortion, has received a satisfactory answer. The grantee demands it at his

peril, and at the hazard of a private, as well as a public prosecution of a private at the suit of the party injured; of a public at the suit of the attorney-general, in the name of his majesty.

"The inconvenience of raising such questions can not be avoided by specifying the sum. The king can not grant an unreasonable toll; and it is competent to every subject of the realm, from whom the toll is demanded, to question its being reasonable, even when the exact sum is specified in the charter."

"This question may always be brought under discussion in whatever terms the grant may be expressed."

In the case already referred to, which was brought by the attorney general before the supreme court of Wisconsin, at its August term, 1874, to enforce obedience to this act, the court held that the original charter for a part of the road operated by the Milwaukee and St. Paul Company was granted and accepted before the adoption of the State constitution, and did not fall under the reserved power. The court therefore held that the charter gave a right to reasonable tolls, which was not affected by the law-the question of what was reasonable being a judicial question. We quote the following from the opinion of Mr. Chief Justice Ryan, page 40 of pamphlet:

"We are of opinion that the franchise is not one vesting in the corporation an absolute right of exacting whatever tolls it might see fit. The courts have authority to limit the right to reasonable tolls-to tolls reasonable, not in the arbitrary judgment of the corporation, but in fact.

"That is, indeed, as against a great railroad company, not a very effective remedy. But the law gives the remedy to all aggrieved by the exaction of reasonable tolls. The question here, however, is not what the courts can do to control the exercise, but what the legislature can do, by statute, to limit the right of a franchise so broad that it seems to invite extortion.

"We have already sustained the power of the legislature to limit rates of toll of railroads, subject to legislative control. But that power rests on the authority of the legislature, not on the reasonable rate of tolls fixed. And the restraint of a franchise to take reasonable tolls-to tolls reasonable in fact-is a judicial, not legislative function.

"But the right of the corporation here to take tolls, at discretion, being thus fixed by express franchise in their charter, there seems to us to be no room for doubt that, viewing the charter as a contract, the franchise is a positive grant to take tolls in the manner and to the extent prescribed by it, subject to such judicial construction and control as it may bear, and is a vital part of the contract of the charter within the authorities."

V.

Independently of the foregoing considerations, applicable to all railway companies in the State, the Chicago and Northwestern Railway Company occupies a peculiar position, which places it beyond

the reach of the legislative act under consideration, for two reasons: 1. The sale of the Chicago, St. Paul and Fond du Lac road, which is a part of the Chicago and Northwestern road in 1859, under a deed of trust and the authority of the legislature, vested the title to the road in certain persons as purchasers, with a right to operate it. Their subsequent incorporation conferred no additional right to operate it, and the alteration or repeal of the charter can not impair the right to operate it which they acquired by their purchase, and held as natural persons.

2. The legislature of Wisconsin has entered into a contract with a corporation of Illinois, by which the Illinois corporation has acquired rights in that road, which the act in question impairs, in violation of the tenth section of the first article of the Federal Constitution.

On the 10th day of March, 1855, the legislature of Wisconsin passed an act authorizing the Rock River Valley Union R. R, Company to consolidate its stock and franchises with the stock and franchises of the Illinois and Wisconsin R. R. Company, which was a company existing under a charter granted by the State of Illinois. This act is set forth with the bill as Exhibit 6. The company to be formed by this consolidation was to have one board of directors, and take a new name. The legislature of Illinois passed a similar act in regard to the Illinois and Wisconsin company. (Exhibit 7, of bill.)

By virtue of these two acts the companies consolidated, and took the name of the Chicago, St. Paul and Fond du Lac Railroad Company. This consolidated company issued bonds, and executed a mortgage. In 1859 the legislature of Wisconsin and Illinois passed each an act providing that, if this road should be sold, the purchasers might incorporate themselves by filing a certificate in the office of the Secretary of State, specifying the name of the new corporation, and the number and names of the directors. (Exhibits 8 and 9 of bill.)

The road was sold at Janesville, in Wisconsin, on the 2d of June, 1859.

There was not a separate sale of the portion situated in each State, but a sale of the consolidated road, as one road, extending from Chicago, in Illinois, to Fond du Lac, in Wisconsin. The purchasers, four days after the sale, incorporated themselves, by virtue of the acts above referred to, under the name of the Chicago and Northwestern Railway Company.

These facts appear in the bill.

The purchasers of the Chicago, St. Paul and Fond du Lac road were, then, from the 2d to the 6th of June, 1859, the owners, as natural persons, of the road-bed, the rolling stock, and the right to operate the road as common carriers, and necessarily to charge a reasonable compensation for services thus rendered. Was that right subject to be taken away or modified by the legislature, except in the same way and to the same degree that natural persons exercising the vocation of a common carrier could be controlled? 19 R R C-APP. (Doc. 15)