iness. Being common carriers of persons and property, the law requires them to transact business for all applicants, at reasonable times and for reasonable rates of compensation. But a railway corporation when crrrying on the business of common carrier at its own expense and risk and for its own profit, cannot be distinguished from any other common carrier. Its duties, its liabilities, and its rights are the same, whether they transact the business over a road which they own, or which they hire, or which nature has made for them in the shape of a navigable river, or which the public has built at its expense and thrown open for the common use, and unless it can successfully be maintained that the legislature may, by what is in truth a legislative decree, establish for the future prices for personal service and expenditures and risks incurred in rendering it, I am unable to see how this law can be brought within the field of legislation."

It is claimed that the State has the right to fix the tolls to be charged on bridges and ferries, turnpikes, canals and railroads, and that this gives them the right to fix the compensation to be charged by a common carrier by railroad. If this be true, could they not also fix his charges on turnpikes or canals? Where is the difference? Toll is the sum required to be paid by the common carrier or other persons for crossing a bridge, or ferry, or traveling over a turnpike, or for the right to navigate his boat on a canal, but it in no instance includes the compensation to be paid to a common carrier. In fact, it is the tribute paid, mostly by common carriers, to the owners of a bridge, ferry, turnpike, canal, or other like improvement for the privilege of using such improvements in transacting their business as common carriers. It is not a term used to express the compensation to be paid to a common carrier. Applying it to a railroad it would express only the compensation to be paid for the use of the railroad, and that alone. It would not include the compensation to be paid to the company, for discharging the duties and functions of a common carrier, for the labor and services necessarily bestowed, the risks incurred and the expense attendant on the proper transaction of the business. These are the proper duties of a carrier, and for performing which, he would have the same right to charge his compensation, in addition to the tolls paid for the use of the railroad, as he would to charge for like services, in addition to the tolls paid on a canal, turnpike or any other like improvement. The fact that the same company is common carrier and owner of the road, makes no difference. He is entitled to pay for the use of his road, and he is also entitled to his compensation as a carrier. If, therefore, for the sake of the argument, we admit the right of the State to fix the amount of toll to be paid for the use of the road, still it would have no more right to fix the compensation of the company, or its lessee as a common carrier, than it would to prescribe the compensation of all other carriers. Hence granting the right, as to fixing tolls, does not give the State the right to fix the pay of a common carrier, and this law could not be sustained. But the right of the State to fix tolls even, arbitrarily after the improvement has been made, and against the will of the

owner, is by no means admitted, and we believe that a careful examination of the cases will show that such fixing of tolls of ferries, bridges, and canals by the legislature, has, only, been done in the original charter, or in pursuance of some right reserved to fix or prescribe them, and not in violation of vested rights in property.

Fourth. It is claimed that the furnishing of the means of communication between different localities of a State is a prerogative right, and belongs to the State, and that no subject or citizen can establish a road, bridge, ferry, canal or railroad, without the express leave of the ruling authority of the country in which it is to be done, nor charge for the use thereof, or for transporting passengers and freight, without such express license of the State.

If it is meant by this, that the government has the right and power to establish such means of communication, and that it is one of the important ends for which government is established to provide, or cause to be provided, suitable highways of trave land inter-communication between the different parts of a country, we do not dispute it. But, if it is claimed that a citizen or citizens of a State where there is no statute prohibiting it, cannot establish a bridge, ferry, road, canal, or railroad, and receive pay for its use, the proposition is denied. Suppose that a citizen of Wisconsin should desire to build a bridge across the Wisconsin River, or establish a ferry at any point on it where he owned the land on each side-would there be any legal objection to his doing it? Of course, he could not obstruct the navigation of the river, but, aside from that, what legal objection could there be to his placing a bridge on his own land across said stream? Or placing a ferry-boat thereon? Who could object? How could he be prevented? Whose rights would be infringed by his so doing? Is there any prerogative right vested in the State that would render such acts illegal, if there was no statute prohibiting it?

After his bridge was built or his ferry established, would there be any legal objection to his allowing teams to pass over his bridge, or to his transporting them across his ferry? Could he not make a reasonable charge for this service and use, and collect it from those availing themselves of his improvements? If not, why? Could the parties using his bridge or ferry avoid paying a reasonable charge therefor? Or could the State by any proceedings prevent his transacting the business or receiving a reasonable compensation for his services and use of his property? Again, could not a citizen open a road through his own premises, whether one mile or fifty in length, and construct thereon a turnpike for the purposes of travel? And when constructed could he not legally charge a reasonable compensation for its use, to be paid by those who saw fit to use it? And might not this road cross other highways which it intersected in its course? Could not all this be done without any special authority from the State, provided there was no law prohibiting it? I confess that I know of no law that would prevent it. I am aware of many decisions in which the right to establish a bridge or ferry has been drawn in question, and where the declaration has been made that the subject could not establish a ferry

without the authority of the King, but in all these cases I think it will be found that the controversy was with the owner of another ferry, who claimed that his rights were infringed; or if with the government, it was because some regulation in respect to revenue or license was involved. I know of no law that would prevent such action in this country, nor do I know of any authority by which the State could interfere by an act of legislation, arbitrarily, to fix the compensation to be paid for the use of such improvement below a reasonable amount.

I am aware also that the impression appears to prevail that in order to build, own and operate a railroad, it is necessary to have permission from the legislature, and that a railroad could not be operated without such authority. I know of no reason why any natural person, if possessed of the requisite means and ability, might not build, own and operate a railroad in the State of Wisconsin, and receive pay for the transportation of freight and passengers. It is true that the charters for railroad companies always contain provisions authorizing them to build, own, operate and receive pay for transportation of freight and passengers. These provisions are necessary to authorize a corporation to do it, but an individual could do all these acts of natural right, the same as he could engage in the business of a common carrier in any other manner.

In the case of Bank vs. Edgerton, 30 Vermont, R. 182, the court say: "There is indeed nothing in the right of constructing and operating a railroad, and taking charges for use which is necessarily of a corporate character, or which might not with perfect propriety belong to, or be exercised by natural persons."

And Mr. Justice Allen, now of the court of appeals of New York, in discussing this question in Beardsley vs. Ontario Bank, 31 Barbour, 625, says: "Aside from the right of eminent domain, which, to a certain extent, and to enable them to acquire the title to real property, is delegated to railroad corporations, I think of no privilege enjoyed by them which might not be exercised by individuals without express permission from the government. Carriage of persons and property by railway is a business open to all who can acquire title to the roadway, and construct and equip the road, and the fact that a railroad, for the purposes to which they are applied, is deemed to be so far public, or for public purposes, as to justify the delegation of this right of acquiring property upon just compensation to the owner, without his consent, does not affect the character of the property which a railroad company may acquire." In Hall vs. The Sullivan Railroad, 22d Law Reporter, 138, Mr. Justice Curtis, says: "But the franchises to build, own, and manage a railroad, and to take tolls thereon, are not necessarily corporate rights; they are capable of existing in, and being enjoyed by natural persons; and there is nothing in their nature inconsistent with their being assignable. See also second, Redfield on Railway's, 517 and 570; Coe vs. Columbia, Piqua & Ind. L. R. Co., 10th Ohio St. 372.

Any person therefor who could get, or who was possessed of sufficient means or ability might build a railroad anywhere through

the State of Wisconsin, where he could secure the necessary grounds and right of way, and could operate such road and carry on the business of a common carrier, without any permision or aid from the law-making power of the State, such property would be private property and the State would have no more right to fix the charges which should be made on it, than it would have to fix the charges for a line of stage coaches engaged in carrying passengers, or wagoners engaged as carriers of merchandise. Neither a railroad company or an individual can exercise the right of eminent domain except as the State confers it upon one or the other, and this power may be conferred upon one as well as the other. It is now conferred by our law on individuals by the mill-dam act, and it is competent for the legislature to confer it either on individuals or corporations as the interest of the public may require. And Judge Cooley, p. 538, says;

"Accordingly, on the principles of public benefit, not only the State and its political divisions, but also individual and corporate bodies have been authorized to take private property for the works of public utility, and when duly empowered by the legislature so to do their private pecuniary interest does not preclude their being regarded as public agencies in respect to the public good which is sought to be accomplished." Again he says, p. 536. "Although property can only be taken for a public use, and the legislature must determine in what cases, it has been long determined that it is not essential; the taking should be to or by the State itself. If by any other agency in the opinion of the legislature the use can be made equally effectual to the public benefit. Again, on page 537, he says: "Although the practice is not entirely uniform on the subject, the general sentiment is averse to the construction of railways by the State, and the opinion is quite prevalent if not general that they can be better managed, controlled and operated for public benefit in the hands of individuals than by State municipal agencies." It may be assumed therefor as the settled belief and practice that railroads can be better built, managed, controlled and operated for the public benefit in the hands of individuals or private corporations, than by the State or municipal officers or agents. Consequently the wisest and best exercise of the right of eminent domain for that purpose is to commit it to the hands of such individuals or corporations."

I therefore insist that not only might an individual build a railroad without grant or permission of the government, except so far as the power to exercise the right of eminent domain might be necessary, but he migh purchase, own and operate any of the railroads now built, and charge for the transportation of freight and passengers without interference or control from the government other than that his charges should be reasonable.

Fifth. The so-called reserved power of the constitution does not authorize the enactment of a law establishing rates to be charged for transportation of freight and passengers.

Section 1, of article 11 of the constitution of Wisconsin, is as

follows: "Corporations without banking powers or privileges may be formed under general laws, but shall not be created by special act, except for municipal purposes, and in cases where, in the judgment of the legislature, the objects of the corporations cannot be attained under general laws. All general laws or special acts enacted under the provisions of this section may be altered or repealed by the legislature at any time after their passage."

This section relates exclusively to the formation or creation of corporations, and provides that it may be done by general laws, and in some cases by special act, and further provides, that all such general laws or special acts may be altered or repealed at any time after their passage. That is, laws forming or creating corporations. It is not that all laws relating to or affecting corporations may be altered or repealed, but only those under which they are formed or created. What is the correct construction of this clause? It certainly does not, by its terms, give that unlimited power over corporations, which is claimed by our opponents, but is confined to laws under which corporations are formed or created.

In order to properly understand and construe this clause of the constitution, we must consider, 1st. What are corporate franchises or privileges? 2d. What was the object to be attained by this provision? 3d. The distinction between corporate property and corporate franchises.

1st. What are corporate franchises or privileges? A corporation is a legal entity, or ideal existence, created by the legislature; an artificial being, clothed with certain franchises or privileges. These franchises are, 1st. Continued or indefinite existence, with perpetual succession of membership. 2d. The right to transact the business for which the corporation is created, in its corporate name. Under our constitution, such artificial beings are created by the legislature, and may be altered or abolished by the legislature at its pleasure, except where rights have become vested, or the alteration would violate some portion of the constitution, either State or federal. Without the clause above quoted, the power to create would have belonged to the legislature, the same as now, but not the power to alter or abolish. Natural persons always form or constitute the corporation. It is a franchise granted to a certain number or society of individuals, and the business to be carried on is in fact their business, and by organizing the corporations, they are authorized and enabled to transact it in the name of the corporation. These two are the essential franchises necessary to their creation or formation as corporations. Other powers or franchises are conferred upon corporations, such as the power to exercise the right of eminent domain, but they are not essentially or necessarily corporate rights, and may with equal propriety be conferred upon and exercised by natural persons as by corporations. I am not aware of any business transacted, or authorized to be transacted, by a corporation, except, perhaps, issuing currency, which natural persons might not do as a matter of right, without statutory anthority. It is not necessary that any business carried on by corporations should