And what has been the result of this interference with the rates? We copy the following paragraph from the annual report, made to the stockholders in August, 1875, by Mr. Keep, the president of the Chicago and Northwestern Railway Company: "An examination of the business of the year shows that more than one-half the decrease in gross earnings was caused by a reduction of passenger and freight rates, mainly induced by the operation of the Potter-Law,' and by the enforcement of other kindred statutes regulating' transportation on railroads in the States of Illinois, Wisconsin, Iowa, and Minnesota. 185 1742 "There was an average reduction of 10 cents per passenger per mile, amounting to $216,267.96; and a reduction on freight of 10000 cents per ton per mile, amounting to $791,819.95; giving a total of $1,008,087.91, taken from the revenue by reduction of rates, and not by reduction of business." This sum, more than a million of dollars, has been taken for the benefit of the public, from the annual income of a railway company which has never paid the legal rate of interest upon the money invested in its construction, and which, since the year 1872, has not been able to pay any dividend whatever to the luckless owners of its common stock. Yet we are gravely told by the supreme court of the State, that "their rights in their material property are inviolate and shall never be violated with the sanction of this court." And that court virtually censures counsel because they characterize such a legislative proceeding as "confiscation," and says "the people of Wisconsin are too intelligent, too staid, too just, too busy, too prosperous for any such horror of doctrine; for any leaning towards confiscation or communism." That the people of Wisconsin are prosperous we do not doubt. The railways have made them so. That they are as just as men in general is probably true. We trust, however, that the holders of the bonds and stocks of Wisconsin railroads may be pardoned the opinion, that the justice shown in the recent railway legislation is best expressed in the words which a great poet has put into the mouth of a Highland chieftain who lived two centuries ago: "The good old rule sufficeth me; the simple plan, And he should keep who can." The act in question has overthrown the most sacred rights of property. It has checked the growth of the State by substantially putting an end to the construction of railways. It has tarnished the reputation of the State and that of the country at large, in every community in the world where American railway bonds are bought and sold. We submit the case, relying upon the wisdom and justice of this great tribunal for the protection of rights secured, as we believe, by the solemn guarantees of the Federal Constitution. 20. RR C-APP. C. B. LAWRENCE, BRIEF OF ARGUMENT OF JOHN W. CARY, OF COUNSEL FOR THE APPELLANTS AND PLAINTIFFS IN ERROR. The bill of complaint states, in substance, that the defendant railway company has executed several mortgages or trust-deeds, upon portions of its line of railway in Wisconsin, to secure its negotiable bonds. The complainants, Farmers' Loan and Trust Company, and Union Trust Company, are trustees named in two of said deeds, and the other complainants are holders of bonds secured by those trust-deeds. The complainants are not residents or citizens of Wisconsin. The defendants are all citizens of that State. The bonds were negotiated in good faith, the purchasers relying solely upon the net income to be derived from the operation of the mortgaged property, for the payment of the principal and interest of said bonds. The railway company has no other means of paying the same. The State of Wisconsin has passed an act, set out at length in the bill of complaint, on pages 16 to 21 of record,* which assumes arbitrarily to fix the rates of compensation to be hereafter charged by said railway company for the transportation of freight and passengers. The rates so prescribed, if adopted by the railway company, and the road operated in pursuance thereof, will yield no net revenue, and in consequence neither principal nor interest of said bonds will be paid. The said act is claimed to be unconstitutional and void, the said defendants, Paul, Osborn and Hoyt, who have been appointed Commissioners under said act, and are by its terms authorized to reduce said rates, even below the figures named therein and are especially charged with its execution and enforcement, and the said defendant, A. Scott Sloan, who is attorney-general of State, thereafter to enforce said law, and to bring a multitude of suits against said railway company, its officers and agents, to compel said company to adopt the rates of compensation named in said act, and otherwise oppress said company, and that if not rectified, will compel said railway company to operate its road under said rates, so as to produce no net revenue; and that in consequence said bonds will become worthless, and great and irreparable injury result to said complainants. An injunction against all the defendants is prayed, restraining them from enforcing said act. The great question, however, involved in these suits and this controversy, is whether See pages 1 to 6 of Appendix to this vol. the legislature has the right and power to assume not only the management and control of the railroads of the State, but also of the whole business of common carriers by railroad, to fix their compensation, regulate the manner and mode of transacting their business, and prescribe the number, time and speed of trains. Said chapter 273, of the laws of 1874, of Wisconsin-either directly or through its commissioners assumes all these functions, and practically takes possession of the business transacted over them. The people instead of calling upon the officers and managers of the company for accommodations and railroad facilities, are directed to look to the railroad commissioners, not only to redress their grievances, but to order and direct the management of the ordinary business of the company, and letters are received notifying superintendents that they propose to apply to the attorney-general for orders compelling the delivery of cars off the line of the company's road, if they are not furnished at such points, when and as often as desired for the accommodation of parties requesting them. The State of Wisconsin, through its legislature, claims all these powers. Its supreme court, after a full hearing, has adjudged the claim well founded, and has hastened, by a preliminary injunction to enforce obedience to it. The average politician and granger within its borders are now jubilant over the prospect open to their view of enjoying other people's property without compensation, or if any is to be paid, then only such as they may choose to dictate, and the grave question comes before this court to determine whether such claims are to be recognized as law-whether, in fact, we are gravitating towards barbarism, or whether our course is still onward in the march of civilization and progress. The court has jurisdiction and can grant the relief prayed. 1st. It has jurisdiction of the parties. The complainants are all citizens of foreign states or countries, and therefore entitled to sue citizens of the State of Wisconsin in this court. The defendants are all citizens of the State of Wisconsin, and may be sued in this court by persons not citizens. The fact that some of the defendants hold State offices, and that the suit is against them in that character, or rather for their acts done or threatened, by virtue of, or in colore offici, does not exempt them from the process and jurisdiction of this court. Their office clothes them with no sanctity. Their acts are either legal or illegal. If legal, they will be protected in this tribunal; but if illegal, the fact that they were State officers is no justification for the injury which they threaten to commit. It is their individual action that is complained of, and it is claimed that such action is wrong and not justified by law. In U. S. Bank vs. Osborn et al., 8 Wheaton 738, the defendants were State officers, auditor, treasurer and collector, their acts official acts, in collecting a tax assessed by the State against the bank. The State was sole party interested in the subject matter of the suit. Yet the supreme court held the action properly brought, that the State was not a party, and that the court had jurisdiction In Dodge vs. Woolsey, 18 Howard 331, the complainant was a citizen of Connecticut, a stockholder in a bank, and filed his bill against the directors of the bank, the bank itself, and George C. Dodge, the treasurer, and colleetor of Cuyahoga County, to restrain the collection of a tax levied by the State of Ohio on the bank, in violation of its charter, and the injunction was granted. See also Gordon vs. Hobart, 2 Sumner, C. C. Rep. 401. 2d. This Court has jurisdiction of the subject matter of the action. The complaint sets forth that an injury is threatened by the citizens of this State, against the property and rights of the complainants, and this court is asked to restrain the threatened injury. But it is claimed that the persons threatening the injury are State officers, and the acts charged, which they are about to commit, are authorized and enjoined upon them by a State law. Therefore, that it is the State that is acting, and that the restraint of her officers is a restraint upon the State, and that the granting of the complainant's prayer, would in effect be an injunction against the State, and prevent her from carrying out and executing her laws. Suppose we admit it, what then? Is the court ousted of jurisdiction, and the complainants deprived of a remedy from the threatened injury? If so, upon what principle? The nature of the injury threatened is such that the court may be properly invoked to prevent it. The State has no more right to commit an injury against the rights of the complainants, than any other person or corporation. It has no right to enact a law in vlolation of the constitution, either State or Federal. Such a law if enacted, is no protection to the State or its officers, and all attempts to enforce it may be lawfully resisted. All acts and attempts in that direction are unlawful. And all persons whose property or rights are invaded and injured by such unlawful acts, are entitled to protection and indemnity. Prior to the adoption of the 11th article of amendments to the Constitution of the United States, the State itself might have been made a party in its corporate name, in any action to redress or prevent a wrong done or threatened to citizens of a foreign state or country. This right would still remain, but for that 11th article of the amendments. That article provides, that; "the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced, or prosecuted, against one of the United States, by citizens of another State, or by citizens or subjects of any foreign State. This amendment simply forbids making a State a formal party to the record-nothing more. It does not prohibit the making of the persons holding State offices such parties. They are amenable to the process of this court, and liable for all the consequences of their acts. The judgment in this case will not bind the State. The injunction will not restrain it, but will operate only upon the parties named as defendants. They are individually responsible for their acts, and the injunction will operate to restrain their individual, personal, action only. It is not, therefore, an action against the State, or in violation of the 11th article of amendments to the Constitution of the United States. This precise question was discussed at length, by Chief Justice Marshall, in Osborne vs. United States Bank, 9 Wheaton, pages 846 to 859. The conclusion that he arrived at is as follows: "It may, we think, be laid down as a rule, which admits of no exception, that in all cases where jurisdiction depends on the party, it is the party named in the record. Consequently the 11th amendment, which restrains the jurisdiction granted by the constitution over suits against States, is of necessity, limited to those suits in which a State is a party on the record. The amendment has its full effect, if the constitution be construed as it would have been construed had the jurisdiction of the court never been extended to suits brought against a State, by the citizens of another State, or by aliens." The case of Mayor of Baltimore vs. Pittsburgh and Connellsville R. R. Co., 1 Abbotts, U. S. C. C. Rep. 9., was a case where the city of Baltimore, had advanced money to the railroad and the charter was subsequently in part repealed and route changed. The city filed its bill in the western district of Pennsylvania, before Judge Grier, to restrain the railroad company from accepting or acting under the charter as amended, and to have the amendment declared unconstitutional. The jurisdiction was sustained and the relief grantel. The jurisdiction of the court both as to the parties and subject matter being settled, we are now to inquire whether the relief prayed can be granted. The allegations of the bill are fully supported by the affidavits. The interest of the complainants is manifest. The danger apprehended eminent and threatening. Unless the relief prayed can be granted, great and irreparable injury will result. Can this danger be averted? The defendants claim to be acting under and in pursuance of the law (chapter 273, of 1874) set out in the complaint, and that all their proposed action is based upon, and enjoined upon them by that act, and that, however injurious it may be to the iuterest of the complainants, their action is authorized and lawful, and that said act is a full justification to them in all courts and places. Such an act has been passed, and if valid as a law, authorizes all that is claimed for it. We are therefore brought to the consideration of the constitutionality of that enactment. If constitutional and valid, then the defendants are justified in their proceedings, and the complainants are remediless. But, if that act is unconstitutional and void, then the defendants are not justified in their proceedings, and the complainants are entitled to the relief prayed in the bill of complaint. The said act (chapter 273, of the laws of 1874) among other things, assumes arbitrarily, to determine the compensation which the defendant Railway Company may charge for the transportation of freight and passengers over its line of road, and necessarily assumes, to that extent, the control over, and the appropriation and disposition of the use of the property of the defendant company, without their consent. We therefore insist |