result as alleged, in serious injury to those rights. It was not necessary to wait until the commissioners had put the law in full operation, and its effects upon the railway company had become complete, before the application against them was made to a court of equity. A very important function of that court is to prevent threatened wrongs to the rights of property.

*

2. We are of opinion that the act of the 11th of March, mentioned above, was not repealed by the act of the 12th of March, 1874, the second section of which declares "all existing corporations within this state shall have and possess all the powers and privileges contained * * in their respective charters;" and the act of the 12th of March, 1874, the ninth section of which imposes a penalty for exorbitant charges. There are apparent inconsistencies between these last two named acts and that of the 11th of March; but it becomes a question of intendment on the part of the legislature. And on the same day a joint resolution was passed (March 12th) directing the secretary of state not to publish the act of the 11th of March until the 28th of April, (acts of 1874, pages 599, 693, 758, 773). In this state no general law is in force till after publication. We think we may consider the joint resolution, in order to determine whether the legislature intended that two acts passed on the same day should repeal the act of the 11th of March, and from that it is manifest such was not the intention of the legislature.

3. The charters of the railroad corporations under the constitution of Wisconsin "may be altered or repealed by the legislature at any time after their passage." In legal effect, therefore, there was incorporated in all the numerous grants under which the Northwestern Railway Company now claims its rights of franchise and property in this state, the foregoing conditions, contained in the constitution. It became a part, by operation of law, of every contract or mortgage made by the company, or by any of its numerous predecessors, under which it claims. All share and bondholders took their stock or their securities subject to this paramount condition, and of which they, in law, had notice. If the corporation, by making a contract or deed of trust on its property, could clothe its creditors with an absolute, unchangeable right, it would enable the corporation, by its own act, to abrogate one of the provisions of the fundamental law of the state.

4. This principle is not changed by authority from the legislature of the state to a corporation to consolidate with a corporation of another state. The corporation of this state is still subject to the constitution of Wisconsin, and there is no power anywhere to remove it beyond the reach of its authority.

5. As to the rates for the transit of persons and property exclusively within the limits of this state, the legislature had the right to alter the terms of the charter of the Northwestern Railway Company, and the fact that such alteration might affect the value of its property or franchises, cannot touch the question of power in the legislature. The repeal of its franchises would have well nigh destroyed the value of its tangible property; and while the latter, as such, could not be taken, still, its essential value for use on the railroad would be gone.

6. The fact that grants of land were made by congress to the state cannot change the rights of the corporators or of the creditors. If the state has not performed the trust it must answer to the United States.

7. The act of the 11th of March, 1874, while not interfering with the rates of freight on property transported entirely through the state to and from other states, includes within its terms property and persons transported on railroads from other states into Wisconsin, from Wisconsin into other states. This act either establishes or authorizes the commissioners to establish fixed rates of freight and fare on such persons and property, The case of "The State Freight Tax," reported in the 15th Wallace, p. 232, decides that this last described traffic constitutes "commerce between the several states," and that the regulation thereof belongs exclusively to congress. It becomes, therefore, a very grave question whether it is competent for a state arbitrarily to fix certain rates for the transportation of persons and property of this interstate commerce, as the right to lower rates implies also the right to raise them. There may be serious doubts whether this can be done. This point was not fully argued by the counsel, and scarcely at all by the counsel of the defendants; and, under the circumstances, we do not at present feel warranted, on this ground alone, to order the issue of an injunction. If desired

by the plaintiffs, it may be further considered at a future time, either on demurrer to the bill or in such other form as may fairly present the question for our consideration.

The motion for an injuction is overruled.

SUGGESTIONS BY JUSTICE DAVIS.

In view of the decision just rendered, we trust it will not be considered out of the line of our duty to make a suggestion concerning this litigation to the counsel for the defendants. It is manifest that the questions involved are grave ones, and that the courts of last resort will ultimately have to pass upon them. It is equally manifest that a speedy decision, in which all parties are vitally interested, cannot be obtained unless there is harmony of action on the part of both the complainants and defendants. In the meantime, while this litigation is in progress, would it not be better for the defendants, as far as lies in their power, to have prosecutions for penalties suspended? These prosecutions are not required to settle rights. They are attended with great expense, and if enforced while an effort is making in good faith, to test the validity of this legislation, must cause serious irritation, and cannot be, as it seems to us, productive of any good results.

PETITION OF THE ATTORNEY GENERAL FOR AN INJUNCTION.

In Supreme Court.

THE STATE OF WISCONSIN VS. THE CHICAGO AND NORthwestern RAILWAY COMPANY.

A. Scott Sloan, Attorney General of the state of Wisconsin, who sues for the said state in this behalf, and in its name, comes here into the supreme court judicature of said state, before the justice thereof, at the capitol, in the city of Madison, on the eighth day of July, in the June term of said court in the year one thousand eight hundred and seventy-four, and for and in the name of the said state, gives the court here to understand and be informed, and shows and alleges that the above named defendant in this action, the Chicago and Northwestern Railway Company is a corporation duly created, organized and existing under and by virtue of the laws of the said state of Wisconsin. And the said Attorney General, in the name and in behalf of the said state, further gives the said court here to understand and be informed, and charges and alleges the truth to be that the said defendant, the Chicago and Northwestern Railway Company was incorporated by an act of the legislature of the state of Wisconsin, entitled "an act to incorpo rate the Madison and Beloit Railroad Company, approved August 19, 1848, and an act of the legislature of the state of Wisconsin, entitled "an act to amend an act, entitled 'an act to incorporate the Madison and Beloit Railway Company," approved February 19, 1850, and the acts amendatory of the aforesaid acts, and supplementary thereto.

And the said Attorney General further gives the court to understand and be informed and avers that by an act of the legislature of the state of Wisconsin, entitled an act to authorize the railroad companies therein named to consolidate their capital stock, approved March 10, 1855, the said railroad company was authorized by its board of directors to select, choose and adopt for itself any name that a majority of the directors might see fit, and that subsequently a majority of said directors did duly select, choose and adopt the name of the Chicago and Northwestern Railway for said company.

And the said Attorney General further, as aforesaid, gives said court to understand and be informed, and states the fact to be that the said defendant on the first day of January, 1874, owned and operated about five hundred miles of railroad within the said state of Wisconsin, and ever since that time has used, operated and managed, now does use, operate and manage the same in the transportation of freights and passengers upon its said railroad.

And the said Attorney General further, as aforesaid, gives the court to understand and be informed, and shows now here that the legislature of Wisconsin, at its annual session in the year 1874, duly passed an act entitled "an act relating to railroads, express and telegraph companies in the state of Wis. consin," approved March 11, 1874, which said act was duly published on the twenty-eighth day of April, 1874, and took effect on said last mentioned day, and thence hitherto has been and still is in full force and operation.j

And the said Attorney General, further, as aforesaid, informs and gives the court to understand, and alleges that in and by the provisions of the said last named act, it is, among other things enacted that the railroads of the said state be, and are divided into classes, and that all freights to be transported upon said railroads, or any parts thereof, within the state of Wisconsin, after the passage of the said last mentioned act, be, and are classified, and the compensation to be charged and received by the companies owning, managing and operating said railroads for the transportation of freight and passengers over their respective roads, are fixed and limited as here in prescribed.

And the Attorney General further, as aforesaid, informs the court, and shows that the said defendant, the Chicago and Northwestern Railway Company, instead, as he had well hoped and believed it would do, of conforming the use, operation and management of its said railroad within the limits and conditions, and according to the regulations and presentations of the last aforesaid act, and without attempting to exceed the powers granted to and conferred upon it by law, and particularly, without attempting to disregard the provisions and requirements of the last aforesaid act in the the transaction of its said business and in the operation of its said road, did immediately after the said act took effect, namely, on the 29th day of April, A. D. 1874, file in the office of the Governor of the state of Wisconsin, a communication in writing, signed by Albert Keep, President of the said railway company, in which, among other things, announced its intention to disregard the provisions and requirements of the said last mentioned act, being chapter 273 of the laws of 1874, so far as the same provides and fixes the rates of compensation for the transportation of freight and passengers within said state, and to man. age and operate its railroad to and from and between its various stations within said state regardless of the requirements of said act of the legislature and in defiance of law.

And the said Attorney General further, as aforesaid, avers and gives the court to understand and be informed, that the said defendant, combining and confederating with divers persons, at present to the said Attorney General unknown, whose names when discovered, the said Attorney General prays, that he may be at liberty to insert herein, with apt and proper words, to charge them as parties defendant hereunto, and contriving how to wrong and injure the plaintiff and all the people of the state of Wisconsin in the premises, has hitherto also lately refused, and still does so refuse, to comply with the requirements of the aforesaid act, and has adopted and issued a tariff of rates for freight between local stations within the said state, and a tariff of rates for freights and passengers transported over its roads within said state, and a classification of freights, each and all of which are in disregard of the classification and rates fixed by the said last mentioned act, and contrary to the requirements thereof. That said defendant has also issued to its officers, agents and servants (each and all of whom the plaintiff prays may, when their names shall be discovered, be made parties defendant to this action, with apt and proper words, to charge them) instructions to charge, demand and receive of ail persons passing over their road or shipping freights thereon, the rates and compensation therefor, in the said tariff and schedules so issued by the said defendant, which said last mentioned rates and compensation are different from and higher, and greater than those fixed, limited and authorized by the said act, and in excess of the power and authority conferred upon the defendant by law, and that the said defendant, its agents, servants, officers

and employés have, during all the time since the said 28th day of April, 1874, charged, demanded and received, and now and still do charge, demand and receive of and from persons carried on their said railroad, and of and from persons shipping goods, wares and merchandise to be carried thereon between places within this state, rates and compensation therefor, higher and greater than those fixed and authorized by the said last mentioned act of the legislature, and greater and higher than said defendant is empowered by law to ask, demand or receive.

And the said attorney general further as aforesaid alleges and shows to the court, that the said defendant has ever since the said 28th day of April, 1874, used and operated its railroads within the state of Wisconsin, in direct violation of the act last above mentioned in defiance of law and contrary to the authority granted to a by law, and that it still does so use and operate its railroad, and now is daily and habitually charging and receiving greater and higher rates and compensations for the transportation of freight and passengers upon its said railroad within this state, than are fixed established and allowed by the said last mentioned act of the legislature, and that said rates are so charged and received by said defendant, as aforesaid for carying freight and passengers which do not come from beyond the boundaries of the state of Wisconsin, to be carried across or through the same and which do not come from plaees without the state of Wisconsin, to be carried to or delivered at places or stations within this state, and which are not received for the carriage or transportation of freights or persons from stations or places within the state of Wisconsin, to places or stations without said state.

In consideration whereof, and to the end that the said defendant may be enjoined from exceeding its powers in manner and form as above stated, and from asking, demanding or receiving rates of fare for the carriage of persons and of toll or compensation for the transportation of goods, wares and other articles received at or taken from any one station or depot within said state and carried to and delivered at any other depot or station therein, the said Attorney General, appearing and suing in the name of and on behalf of the said state, as aforesaid, prays the justices of this court to grant unto the said plaintiff the writ of injunction issuing out of and under the seal of this honorable court, to be directed to the said defendant to restrain it, its officers, agents, servants, workmen and employees from exceeding the powers hereby conferred upon the said defendant, and from violating and disregarding the laws in the manner above stated and complained of, and the said plaintiff prays judgment that the said injunction may be made perpetual by the final order of this honorable court.

And the state of Wisconsin, by its Attorney General, will ever pray, etc. A. SCOTT SLOAN,

Attorney General.

The State of Wisconsin-In Supreme Court.

THE STATE OF WISCONSIN, Plaintiff, vs. THE CHICAGO AND NORTHWESTERN RAILWAY COMPANY, Defendant.

To the above named defendant:

Take notice that I intend to move the honorable, the Supreme Court of the state of Wisconsin, holden at the capitol in the city of Madison on the 14th day of July instant, at the opening of the court on that day, or as soon thereafter as counsel can be heard, that an injunction be issued in accordance with the prayer of the annexed information or complaint, and for such other or further order or relief as the court may think proper to grant, which motion will be founded on the said annexed information or complaint.

Dated July 8, 1874.

A. SCOTT SLOAN,
Attorney General.

PETITION OF THE ATTORNEY GENERAL FOR AN INJUNCTION.

In Supreme Court.

THE STATE OF WISCONSIN VS. THE CHICAGO, MILWAUKEE AND ST. Paul RAILWAY COMPANY.

A Scott Sloan, Attorney General of the state of Wisconsin, who sues for the said state in this behalf and in its name, comes here into the supreme court of judicature of said state, before the justice thereof, at the capitol in the city of Madison, on the eighth day of July, in the June term of said court, in the year one thousand eight hundred and seventy-four, and for and in the name of said state gives said court here to understand and be informed, and shows and alleges that the above named defendant in this action, the Chicago, Milwaukee and St. Paul Railway Company is a corporation duly created, organized and existing under and by virtue of the laws of the state of Wisconsin. And the said Attorney General, in the name and in the behalf of said state, further gives the said court here to understand and be informed, and charges the truth to be, that the Milwaukee and St. Paul Railway Company was incorporated under the statute laws of the state of Wisconsin, under the name of the Milwaukee and St. Paul Railway Company, by filing articles of association in the office of the Secretary of State of the state of Wisconsin, on the 5th day of May, 1863, which said articles of association were demanded by an act of the legislature of the state of Wisconsin, entitled "An act to amend the articles of association of the Milwaukee and St. Paul Railway Company," approved April 2, 1864. That said articles of association were ratified and confirmed, and said company, with among other things, declared to be a corporation by an act of the legislature of the state of Wisconsin, entitled "An act ratifying the organization of the corporation therein named," approved April 10, 1865; that at a meeting of the stockholders of the said Milwaukee and St Paul Railway Comyany, held in the city of Milwaukee on the 7th day of Feburary, 1874, at which were present, in person or by proxy, a majority of all the stockholders of said company, the name of said corporation was changed to the Chicago, Milwaukee and St. Paul Railway company by a resolution unamiously adopted, which resolution was duly recorded in the office of the Secretary of State of the state of Wisconsin, cn the 11th day of February, 1874.

And the said Attorney General further, as aforesaid, gives said court to understand and be informed, and states the fact to be, that the said defendant, on the first day of January, 1874, owned and operated about six hundred miles of railroad within the said state of Wisconsin, and ever since that time has used, operated and managed, and now does use, operate and manage the same in the transportation of reight and passengers upon its said railroad. And the said Attorney General further, as aforesaid, gives the court to understand, and offers and shows that the legislature of the state of Wisconsin, at its annual session in the year 1874, duly passed an act, entitled "An act relating to railroads, express and telegraph companies in the state of Wisconsin," approved March 11, 1874, which said act was duly published on the twenty-eight day of April, 1874, and took effect on said last mentioned day, and thence hitherto has been, and now is, in full force and operation, and that the said defendant, mentioned and described in said last named act, as the Milwaukee and St. Paul Railway Company, by which name it was then theretofore and still is commonly known and called, and that there is no corporation in this state by the name of the Milwaukee and St. Paul Railway Company, and has not been since the change of name as above stated, except as the road applies to the defendant, and whenever the Milwaukee and St. Paul Railway Company is mentioned in said act, the defendant is meant and attributed to the company referred to and spoken of.

And the said Attorney General further, as aforesaid, informs and gives the