Hfl/J ^mm\{ Slam ^rlynol Sjibraty The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024762019 K=CBte Chief Justices of th« Supreme Court of Wisconsin Edited with ANNOTATIONS HISTORICAL, CRITICAL AND LEGAL By GILBERT E. ROE Of the New YorK «ar ' ILLUSTRATED WITH PORTRAITS CHICAGO CALLAGHAN 6 COMPANY 1907 COPTEIG-HiT, 1907, CALLAGHAN & COMPANY. STATE JOUENAL PE1■^^TING OOMPAIT?, Printkks and Sterbotypees, ttADISON, -WIS. PREFACE. This compilation of leading opinions of Chief Justices Dixon and Eyan, of the Wisconsin Supreme Court, was prepared at the suggestion of some of the memhers of the Wisconsin Society of ITew York, who desired in this man- ner to testify their admiration for these great jurists, and is now published in the htip"fe' tibat it will prove of interest to laymen, as well as to members of the legal profession, both in Wisconsin and throughout the country. The opinions themselves both in literary quality and legal learning, rank, it is believed, among the best of those delivered by American judges, and they admirably illus- trate the growth and development of the jurisprudence of one of the great Western States. It is intended in the note which foUows each case, to give every decision in which the case has been cited and to indicate whether the reference to it was with approval or disapproval, and where several points are involved in the case to also indicate the precise point to which it was sub- sequently cited. These notes enable anyone to form some judgment of the value of the opinions as precedents and their influence in shaping the law of the country, while they direct the lawyer to the sources from which he can Preface. iv determine the present state of the law upon any of the subjects covered in the opinions included in this compila- tion. In this respect it is hoped that this volume will prove of practical use to the members of the legal profession. Such historical information has also been added concern- ing the various cases as seemed to be necessary to a correct understanding of the case. IvTo effort has been made to confine the opinions tp any particular question or class of questions; but on the con- trary the endeavor ha's been to cover as wide a range of im- portant subjects as possible. In selecting the opinions to be published, the editor has been embarrassed only by the wealth of material from which to choose, and while it is doubtless true that different selections might have been made with value to the work, it is certain that each of the opinions here presented possesses a distinctive interest and deserves high rank in legal literature. Grateful acknowledgment is made to numerous friends, both laymen and members of the legal profession, for val- uable suggestions and assistance in the preparation of this work and particularly to Hon. Kobert G. Siebecker, of the Wisconsin Supreme Court, and Hon. Hugh Eyan, of Mil- waukee, the son of Chief Justice Eyan, and Mr. Henry C. Davis, of New York City. G. E. E. New York, December, 1906. TABLE OF CASES AND CONTENTS. BioGBAPHicAx Sketch op Chief Justice Dixon 1 Opinions of Chiep Justice Dixon ; 11-245 Pheups v. Roonet 11 Question of what constitutes tiomestead — Doctrine of principal use — ^What should he the test. Knowlton v. Supervisors of Rock County 33 What constitutes uniform taxation — iPower of legis- lature to tax land in a village at a different rate when used for agricultural purposes. Von Baumbach v. Bade 61 Alteration of remedies as impairing obligation of ■ contracts — Constitutionality of such legislation. Ablbman v. Booth 69 Fugitive Slave Law — Constitutionality. Town of KLilwaukeb v. City of Mjlwaukeb 102 Reorganization of Town of Milwaukee by the legis- lature — ^Land belonging to town incorporated in the city — ^Power of legislature to deprive a mu- nicipal corporation of its property. Hasbbouck v. City of Milwaukee 126 Power of municipality to issue bonds for the pur- pose of constructing a harbor when authorized by the legislature — Power must be specifically granted. Kellogo v. The Chicago & Northwestern Railway. . 145 Negligence of railroad in leaving dry grass and stubble on its right of way — Proximate cause- Contributory negligence. Table of Cases and Contents. vi HoTT V. The Citt of Hudsoh' 202 Kesponsibllity of municipality for damages from surface water caused by grading — ^Rules as to surface water and water courses. Sdtton v. Town op Waxtwatosa 215 Contributory negligence — ^Violation of Sunday law" no defense to an action for injuries received on that day in consequence of defendant's negli- gence. MoESB V. The Home iNstTRANcaB Company 232 Citizen of foreign state may estop himself from setting up right of removal to Federal court by a previous stipulation to that effect. BlOGBAPHICAL SKETCH OP CHIEP JUSTICE RYAN 247 Opinions ow Chief Justice Ryait 259-556 Attorney Genebal v. The Railboad 259 Regulation of rates — Original jurisdiction of Wis- consin Supreme Court — Power to issue manda- mus in certain oases — Common law and equity writs — Information of attorney general— iE*ublic nuisance — ^Reserve power in state constitution — Corporation charters, contracts — The Dartmouth College Case — Violations of charters enjoined, etc. Cbakeb v. Chicago & NoETHWESTBatN Railway 385 Rules of damages — Compensatory and punitive — Mental anguish — Respondent superior — Rail- road's duty to passengers. Sawyeb v. Dodge County Insurance Company 401 Insurance policies — Insurable interests — Blanket policies — Wager policies — ^Ungrown wheat on un- bought land insurable, etc. State v. Doyle ■. 417 Power of legislature to impose conditions on for- eign corporations — Waiver of right to remove suit from state to Federal court a valid condi- tion—Voluntary waiver and denial by state dls- vii Tabk of Cases and Contents. tingulshed — Morse v. Ins. Co. commented on and distinguished — Mandamus issued to secre- tary of state to cancel license of foreign Insur- ance company — Merely ministerial oflSce — Powers of Federal and state courts — ^Review of EHeventli Amendment. DiEDKICH V. NOETHWESTEEN UNION RAILWAY 462 Riparian rights — ^Fee to the bed of Lake Michi- gan — Land built out into Lake Michigan — In whom the fee — Exercise of eminent domain by railroad — Piers built in aid of navigation, etc. Maesh v. Stjpeevisoes of Claek County 485 Taxes — ^Assessment — Assessors, their duties — Inva- lidity of taxes on irregular assessment — ^Uniform- ity in taxation, etc. DOESEY V. P. & C. CONSTBUCTION COMPANY 502 Negligence of railroad In building collateral struc- tures close to track — Contributory negligence — Knowledge of employee — ^Assumption of risk. Wight v. Rindskopp 515 Internal Revenue Law commented on — Immorality of — Power of revenue officers to compound of- fenses — Accomplice turning state's evidence — Invalidity of contract with such accomplice for professional services — Duties of a lawyer — Right of witness as such to counsel. Peideaux v. City of Mineeal Point 641 Principal and agent — Imputation of negligence- Contributory negligence — Public and private con- veyances distinguished — ^Responsibility of town for defective condition of highways, etc. CCBBY i). C. & N. W. Ry. Co .- 557 Railroads — Fences ' — Contributory Negligence — Statutes as to liability of railroad companies for injuries to animals from failure to fence, held cumulative — Contributory negligence a defense in all such cases — ^When question of plaintiffs negligence for the jury. ILLUSTRATIONS. PoBTBAiT OF Chiep JUSTICE DixoN' FroJittspiece POETEAiT OF Chief Justice Ktan 247 LIFE OF CHIEF JUSTICE DIXON. SKETCH OF THE LIFE AND SERVICES OF CHIEF JUSTICE DIXON AS CONTAINED IN THE MEMORIAL PRESENTED TO THE WIS- CONSIN SUPREME COURT ON HIS DEATH. At a meeting held at the state capitol of Wisconsin on the 19th day of Decemher, 1891, to take action upon the death of Honorable Luther S. Dixon, formerly chief jus- tice of the supreme court of Wisconsin, a committee was appointed to prepare a memorial to be presented to the court. On the 29th day of December, 1891, the Hon. Geo. H. Noyes, Esquire, on behaK of the committee addressed the court and presented the memorial hereinafter set out, which not only contains the leading events in the life of Chief Justice Dixoii, but also testifies to the estimation in which he was held by the bench and bar of Wisconsin. The following is the memorial presented : Luther S. Dixon, for over forty years prominent in the legal profession, and during more than fifteen years of most eventful history the chief justice of the supreme court of this state, died at his residence in Milwaukee on the 6th day of the present month. 1 Life of Chief Justice Dixon. 2 Among the many distinguished names on the roll of our profession in Wisconsin, none shines with brighter luster than his ; none is more prominently associated with its judicial history, and he has graven deep and lasting lines of influence upon the jurisprudence of the state. Among our great jurists none will be longer remembered for the qualities that command admiration and kindle warm attachment than he, whose manly personality won the regard and confidence of men in every walk of life. To the members of the bar of the supreme court whose work reaches back to the period of his service there re- mains a memory of one who presided with eminent abil- ity, with a befitting dignity so blended with kindness, pa- tience, consideration for every advocate who appeared be- fore him as to make him loved and honored by the whole brotherhood of the bar. To all these the announcement of his death brings a deep sorrow. The world seems more lonely when so manly, so strong and helpful, and so gen- tle a spirit passes out of it; and our profession suffers a loss, the sense of which will long abide. We, of the State Bar Association, at a meeting called for the purpose, in behalf of our brethren throughout the state, and the people at large, unite in the expression of our sorrow, and would offer our tribute of veneration and affection for one whose fame as a jurist, we well know, is above need of eulogy. Luther S. Dixon was born in Milton, in the valley of the Lamoille, in the state of Vermont, June 17, 1825, of the sturdy stock of the New England farmers of the early part of the century. After laying the foundation of a good English education in common schools and academies, he entered the military school at Norwich in that state, then under the conduct of instructors of marked ability. 3 Life of Chief Justice Dixon. There lie ranked high as a cadet, and was an excellent scholar in Latin. He received the thorough instruction, severe mental and physical discipline so valuable in form- ing character. After teaching school to procure the means of prosecuting his studies, he entered upon the reading of law in the office of Honorable Luke P. Roland; then of high standing among the lavs^yers of Vermont. He was admitted to the bar in 1850. The West was then the in- viting field to the young men of l>J'ew England ; and Wis- consin was regarded as well out on the frontier. The young lawyer established himself at Portage in this state, about the year 1851, and entered upon the practice. His sterling qualities drew him clients, and he was twice elected district attorney of Columbia coimty, serving with zeal and fidelity. In 1858, upon the retirement of Hon- orable A. L. Collins, he was appointed judge of the Ninth judicial circuit, the duties of which office he discharged with such marked ability as to give great satisfaction to the bar, then composed of some of the most distinguished ' and able practitioners of the state. The death of the eminent Chief Justice Edward V. Whiton in 1859 cast upon Governor Eandall, then the ex- ecutive, the duty of appointing a successor to hold office until the vacancy could be filled by election. He selected, with the general approbation of bar and people. Judge Dixon. The appointee was then but thirty-three years of age; and his previous professional and judicial experi- ence — ^the latter less than a year on the circuit — though full of promise, had hardly foreshadowed his great abili- ties. But, assuming his seat April 19, 1859, he entered upon a career which soon made plain that he was bom for a judge. He loved the law as a study. He loved the right, and with pure heart sought to find justice. En- Life of Chief Justice Dixon. 4 dowed by nature with a strong, vigorous mind, native sense and clear intuitions, with great capacity for mental labor, the power to grasp and analyze, the faculty to quickly develop a subject and perceive the point on which a controversy depended, he studied hard, steadily grew,, and while yet a young man was recognized among the able judges of his time ; his fame extending beyond the state in a constantly widening circle. He was happily constituted for judicial labor. If there was aught in him of the par- tisan it was completely subordinated in the judge. Free from all bias or prejudice, his mind serenely sought the right of the niatter, never swayed, even unconsciously, by thought of popularity or personal consequences. No judge could more fully appreciate the words of the great Mar- shall, that "judicial power is never exercised for the pur- pose of giving effect to the will of the judge, but always for the purpose of giving effect to the will of the law." Devoid of what is called political ambition, he declined advancement in those fields so inviting to most men — in which he was admirably endowed to succeed — and wrought in th^ mope laborious and, in a sense, less con- spicuous labors of the bench. He was four times elected to his exalted place. Those who in honest difference op- posed his first election were his warm supporters ever after, and his later elections were with virtual unanimity. He retired volimtarily in 1874 in the midst of his term, to the general regret of bench, bar, and people, for he then stood admittedly among the foremost judges in the Union. His judicial Avork, to which he gave the best years of his life, will endure. His decisions will ever attract and charm the profound, for they were wise expositions of the law, professional in learning, logical in strength, and never wanting in an unstudied eloquence and beauty of expres- 5 Life of Chief Justice Dixon. sion. Wto can read them without being impressed with the virtues of the man — ^his originality, sincerity, honesty, love of justice ? The manliness and sweetness of his na- ture are reflected in his written judgments. The judicial temper and quality of his mind were ad- mirable. When he had reached his conclusion he had the strength of conviction of an earnest, honest soul, and naught coidd swerve him but to show him his error. And no man was freer from mere pride of opinion. In the texture of his firmness was no coarse fibre of obstinacy. With noble candor he reviewed his own decisions, frankly acknowledged his own errors, pointing them out himself where others had not found them. Herein his largeness of mind was exhibited. He reached his conclusions after long, patient investigation, his mind open to light from every quarter. He listened considerately to every argu- ment with attentiveness that encouraged the advocate to do his best. He weighed well, reviewed carefully, know- ing always how fallible is human judgment, how danger- ous summary decision. None who argued causes before him ever felt for a moment, whatever the result, that the argument had been unheeded. Some of the decisions which he wrote, or in which he concurred, or from which he dissented, bore upon controversies which stirred the deepest popular feeling at a, time when the bands of Union strained to their utmost tension were about to snap asim- der. Yet, then, however emphatic the dissent of those in adverse interest or belief, his sincerity or purity of motive was never questioned. It may truly be said that time has vindicated his judgment, or at least that aU have accepted as the law of the land some of his rulings which at the time evoked the most dissent. How fearless he was in following his convictions, with what moral courage he ad- Life of Chief Justice Dixon. ^ hered to them, even to the alienation of political friends and the peril of his seat, then but recently assumed, all wiU remember who but recall the intense excitement that culminated in the great civil war. The virtues above ascribed to him are common to our American judges, and ever conspicuous on the bench which he so long adorned. In him they were so manifest in the amplitude of his understanding, the simplicity, strength and perfect balance of his character as to mark him for distinction on any bench or in any group of the great men of our profession. He came to the bench at an important and critical time in the history of state and nation. Questions involved in the contentions of political parties must be decided and the judgments of courts could but provoke fierce criticism. Questions were pending which directly affected the inter- ests of large classes of citizens, arising out of the early efforts in railway development, and the involvement in that behalf of public-spirited men. Fortunes and even homes were imperiled. Decisions were demanded favora- ble to those in jeopardy, and judges were threatened with the displeasure of masses if decisions gave disappoint- ment. The then recent adoption of the Code had dis- placed the ancient, familiar practice, and thrown much labor on the court in settling the new procedure. New and important questions sprang up in the period of rapid development during and following the war; and the growth of the state largely increased the labors of the court. Chief Justice Dixon and his illustrious associates in that formative period worked with noble diligence for the welfare of the state. "Looking far behind them and far before them" they wrought with master hands in build- ing a system of jurisprudence, mild and benign, of which 7 Life of Chief Justice Dixon. the materials were the excellences of the common law, the enlightenment, progress, and humanity of later times and legislation. Says the Majestic Webster: "Whoever labors on this edifice with usefulness and distinction, whoever clears its foundations, strengthens its pillars, adorns its entablatures, or contributes to raise its august dome higher in the skies, connects himself in name and fame of society." The work of Chief Justice Dixon and his eminent co-laborers on the bench, it may truly and we hope not inappropriately be said, placed our supreme court well forward among the strong, able tribunals of the coun- try. His decisions embraced in twenty-six volumes of OUT court Reports constitute a record imperishable, and his ennobling influence upon the body of our law wiU be felt and acknowledged, as it now is, in the long future. In private life stainless, in the domestic relations and those of the neighbor and citizen irreproachable, he lived among us. In social intercourse, when professional toil could for a brief space be laid aside, it was pleasure to meet him. Of commanding presence, taU but well formed, with a natural grace of deportment perfected by his early military education, he bore nature's stamp of superiority. But he was unostentatious, simple and direct in manner as a child, cordial and generous ; and there was something in him that won and held friends and gave him wide but unsought popularity. He had the sparkling wit without trace of bitterness, the buoyancy of spirit and keen sense of humor, so often observable in great lawyers. An agreeable converser, attent and sympathetic listener, he was the charm of a social circle. His kindly grace put aU at their ease, and he could be interested in slU with whom he came in contact. His career after he left the bench was in keeping with his noble work upon it. He Life of Chief Justice Dixon. ° remained true to his profession at the last, though political honors were within his reach. Avoiding all notoriety, shunning all display, he modestly went ahout his work, at once assumed high rank at the bar, and enjoyed the re- wards of extensive and important practice. His health forced him, some years ago, to leave a large and lucrative business here, and seek the higher altitudes and rarer at- mosphere of the western mountains. Thereby, although he retained his residence in Milwaukee and considered this state his home, the profession here lost for the most part his delightful companionship and his powerful aid. It was almost as an exile that he went to Colorado, banished by the rigor of our climate. He went at a period of life when men are not wont t6 form new attachments, and, if engrossed in care, are unlikely to attract new friends. De- pressed by suffering, for his asthmatic ailment deprived him of the blessedness of refreshing sleep, the cheerful ness which was one of the charms of his nature might well be quenched. But he entered at once upon an extensive practice, and amid the strife of constant legal controversy he came to be loved by his professional brethren there no less than here. In the resolutions passed at a large meet- ing of the bar in Denver, called when the announcement of his death reached them, they expressed in words of ten- derness their "reverent respect and heartfelt affection." He returned to his family in Milwaukee a few weeks since after a professional visit to Washington, so worn out by the long struggle with the malady which finally overbore his superb physical constitution, that age and the hand of death seemed visibly upon him. A short iUness brought the last great change, and after a life of unsullied honor, faithful service in the highest field of usefulness, with a lasting fame firmly assured, life's work well done. ■9 Life of Chief Justice Dixon. his body sleeps in the soil of the state he served so well, near the scene of his judicial labors and by the graves of his children. His immortal part, with God who gave and imbued it with much love of justice, such high intelli- gence, such sweetness and charity, now, as we devoutly trust, sees the right, not in the* crepuscular dimness of human imperfection but in the clearness of eternal day. To U£ who survive him, and to the long line who shall follow, his character as it shall live in memory and in his enduring labors will ever be an exquisite picture of the pro- found lawyer, the good man and the just. To his grieving widow and family, whose. sorrow cannot be lightened by being so largely shared, we extend our heartfelt sympathy. We know, too, how profound a sor- row his death has brought to the members of the court all of whom knew him so well in life, and especially to those veterans in service, "still shining in use," with whom he so long labored. To them as to us is left but the mourn- ful pleasure of speaking his praise. "Mingling our sorrows and regrets" with those of the court, we ask that this memorial — ^faintly as it portrays our sense of his worth and his service, and feebly as it ■expresses our affection and our sorrow — ^may be spread upon the records of the supreme court. Edwin E. BETAiirT, Moses Hoopee, Geo. a. If dyes, A. A. Jacksow, James B. Tatioe. Committee. SELECTED OPINIONS OF CHIEF JUSTICE DIXON. Phelps T. Booney, et al. June Term, 1859. (9 Wis. 70.) Sections 51 and 52, chap. 102, Wisconsin Eevised Stat- utes 1849, in force at the time of .this decision, provided : "Sec. 51. A homestead consisting of any quantity of land not exceeding forty acres used for agricultural pur- poses, and the dwelling house thereon, and its appur-' tenances, to be selected by the owner thereof, and not in- cluded in any town plot, or city, or village; or instead thereof, at the option of the owner, a quantity of land not exceeding in amotmt one-fourth of an acre, being within a recorded town plot, or city or viHage, and the dwelling house thereon, and its appurtenances, owned and occupied by any resident of the state, shall not be subject to forced sale on execution, or any other final process from a court, for any debt or liability contracted after the first day of January, in the year one thousand eight hundred and forty-nine. "Sec. 52. Such exemption shall not affect any laborer's or mechanic's lien, or extend to any mortgage thereon, law- fully obtained; but such mortgage, or other alienation of •Opinions of Chief Justice Dixon. 12 such land by the owner thereof, if a married man, shall not be valid without the signature of the wife to the same." The majority of the court in this case held that a build- ing constructed externally and internally in the style of a store and desigued for use as a store, except that the second and third stories were finished off into rooms for use as a •dwelling and were and had been used by defendant, Kooney, and his family as a dwelling house at the time :the mortgage in question was given, was a homestead within the meaning of the above statute, and that the mortgage, therefore, which defendant Rooney had given on the prop- •erty, not being signed by his wife, was void. From this position Chief Justice Dixon vigorously dissented. The following are the propositions of law announced by "Chief Justice Dixon in his dissenting opinion : That the words "homestead" and "dwelling house," in their natural and ordinary import, cannot be con- strued to embrace the building above described ; that these words are used in the statute in their plain and obvious signification, and not as synonymous with the mere general terms "habitation," "residence," "home" or "abode." That the 52d section under which the defense is made , in this action, is a disabling act and should be strictly construed in this case. That if the effect given to the "exemption law" in 'this case by the majority of the court be that which the legislature intended, then the law to that extent vio- lates section 9, article 1, of the constitution, which provides that "every person is entitled to a certain remedy in the laws, * * * ; he ought to obtain justice freely * * * completely and without do- 13 Phelps V. Roone^, et aL nial," etc. It is also repugnant to the requirement of section lY, axtide 1, of tlie constitution, that "the privilege of the debtor to enjoy the necessary comforts ■ of life shall be recognized by wholesome laws exempt- ing a recLsonoMe amount of property from seizure or That these two sections must be construed together and are intended to guard the rights and interests of both debtor and creditor. It is a well settled rule of constitutional construction, that every affirmative prescription implies a negative of everything contrary to, or inconsistent with it, and section 17 above quoted, therefore, by necessary im- plication, denies to the l^slature the power to pro- tect the debtor in the enjoyment of those things which are not of the necessary comforts of life, or to exempt an unreasonable amount of property or to enact laws unwholesome in their nature and tendencies to secure the privileges of the debtor. The power and duty of the courts, in proper cases to construe and give effect to these sections of the con- stitution is as unquestionable as in any other case of l^slative usurpation. The presumption is always that the legislature has not intended to infringe the provisions of the constitution, and as by that instrument the l^slature had no power to exempt "stores" or other places purely or princi- pally devoted to trade or business, and as the act pre- scribing exemptions does not provide that such prop- erty should be exempt, but on ihe contrary its lan- guage indicates that which is entirely different, an intention to exempt it cannot be inferred nor can suck effect be given to the act Opinions of Chief Justice Dixon. 14 Dixow, Chief Justice. The question involved in this case is of very great importance, not only to the parties in interest, but as establishing the, proper construction of the statute under consideration. It is one affecting the gen- eral interest of society as much, or more perhaps, than any other single question which could axise at this time; and disagreeing, as I do, entirely in the conclusions to which the majority of the court have arrived, I feel it my duty to state some of the reasons for my so doing. The facts in the ease are stated as fully in the opinion of the court as I would desire, excepting in two or three particulars; but believing that the report of the case will contain a full, statement of them, as well as the very able argument and points made by the appellant's counsel, I will not here at- tempt to supply them. In my opinion the question is not so much one of doubt or ambiguity as to the general scope or purport of the statute, as one regarding the meaning to be attached to the word "homestead," and "dwelling house." These are words of very frequent and familiar use, and in ordinary language have, or ought to have, a iixed and definite mean- ing, which would convey nearly the same ideas to the mind of every person reading them, or hearing them spoken. Eor myself, I have no doubt that they have such meaning, and for the purpose of my argument, I shall assume that they have; that being a proposition which I cannot dis- cuss. Common sense will readily teach every man whether I am right or wrong in this assumption. Upon its correctness the truth or falsity of my conclusions will in a measure depend. Whatever abstruse or technical rules may heretofore have been laid down and followed for the purpose of giv- 15 Phelps V. Rooney, et al. ing construction to statutes or other instruments, I under- stand that it has now become the settled and universal rule, sanctioned by the highest authority, that whenever words of a general nature occur in a statute, or other in- strument, that they are to be understood according to their natural and obvious import, unless such meaning is clearly repugnant to the intention of the framers, or would lead to great inconvenience or absurdity. In Jones v. Harrison, 6 Exch. K. 327, Parke B., says : "The rule which the courts have constantly acted on of late years, in construing acts of parliament, or other in- struments, is to take the words in their ordinary gram- matical sense, unless such construction would be obviously repugnant to the intention of the framers of the instru- ment, or would lead to some other inconvenience or ab- surdity." "The current of authority at the present day," says Bronson, J., in Waller v. Harris, 20 Wend. 555, "is in favor of reading statutes according to the natural and most obvious import of the language, without resorting to subtle and forced constructions for the purpose of either limiting or extending their operation. Courts cannot cor- rect what they may deem either excesses or omissions in legislation, nor relieve against the occasional harsh opera- tion of statutory provisions, without the danger of doing vastly more mischief than good." "The fundamental reason of the rule," says Sedgwick (Sedgwick on Statutory Law, page 261), "is that unless the courts, as a general thing, construe language in the same sense in which it was used by the legislature, that is, according to its ordinary and natural import, it would be in vain to attempt to preserve any harmony between Opinions of Chief Justice Dixon. 16 tjiese two great co-ordinate branches of government; and the contrary doctrine would open the door to intolerable looseness of construction." It is for the purpose of applying these principles that I assume as the legislature did, and as every one must, that the words in question have a natural and generally ac- cepted signification. Lexicographers agree in defining the word homestead, primarily and naturally to mean, the place of the house, the incloswe or ground immediately connected with the house or mansion; not the house or dwelling itself, but the place of or for it; the ground or land on which it stands, and which is directly connected with it. It is therefore necessary to the existence of a homestead that it should be a piece of land designed or used as the place of the house. Although the word is sometimes used in an enlarged sense so as to include both the house and the land, yet such I apprehend is not its usual signification, or that in which it was used by the legislature. That they used it in its primary sanse ap- pears plainly from their language, "a homestead consisting of any quantity of land," etc. I am thus particular in endeavoring to ascertain the true and primary meaning of this -word, because I think the majority of the court, both in their reasoning tod opinion in this case, have confounded this natural and obvious signification of the word with that of the words "abode," "dwelling house," "home," "residence," and the like, which do not necessarily mean the same thing. I can better illustrate by putting a case which is very likely to happen. Suppose the house of a debtor having a house and homestead, that is, the quantity of land exempt by statute, should, by some accident, such as fire or storm, be destroyed, and the debtor and his family be thereby 17 Phelps V, Rooney, et al. oUiged to seek shelter and protection elsewhere, wOiild the homestead be thereby subjected to seizure and sale, to sat- isfy the demand of some merciless creditor, whilst the unfortunate debtor was in good faith gathering the means and endeavoring to rebuild? I confess that in view of the benevolent spirit which actuated our exemption laws, and with my understanding of the word "homestead," I could never sanction such a proceeding and thus double his misfortunes. If, however, the word "homestead" means abode, residence or house, he would lose it, for it would not then, by reason of his~ misfortune, be his abode, residence, or house. But if the word is construed in its ordinary sense, it might well be construed to be within the language of the statute ; as it certainly would be vyithin its spirit. Johnson gives an instance of the distinctive use and sense of the words "house" and "homestead^" in the: following lines from Dryden : "Both house and homestead into seas are borne, And rocks- are from their own foundation torn." In ordinary conversation, or in giving a construction to written instruments, I imagine that few people would dis- agree as to the meaning of the words "dwelling house," when used. If, when taken tbgether, they have not a fixed and definite signification, then I knbw of no, words in our language that have. Webster defines the two words taken together, as "the house in which a man lives." The w^rd! "house," he says appropriiately, signifies "a building or edifice for the habitation of man; a dwelling place, man- sion, or abode, for any of the human species;" that is, a building or edifice, or place, designed or constructed for the habitation of man, aS distingtii'shed from those other buildiingB, edifices, etc., constructed by man for other pur- poses. This I believe td be the oldinary; and obvious im- 2 Opinions of Chief Justice Dixon. 18 port of the words, and to be the sense in which they were used by the legislature. It need not, it is true, be built of any particular materials, or in any particular style of architecture or workmanship, but it must be constructed and used for a dwelling for man, and not for other pur- The building in question is, by its location and external and internal construction, designed for a store, or place of business, and ever since its erection has been used by the defendant, and tenants holding under him, principally for that purpose. It seems to me that the error lies in mis- interpreting the words "dwelling house." It is assumed that they are synonymous with "habitation," "residence," ""home," or "abode." A dwelling house may be either of these, but it does not follow, therefore, that the words are convertible. The statute exempts a dwelling house, eo nomine. If the legislature had by name exempted every man's residence or habitation, there might be some propri- ety in extending the provision of the act to a case like the present; but even then I do not think it would be within its spirit. Man may take up his residence in any place which will afford him shelter or protection. Suppose a family were to reside in a steamboat (which very often happens) , would that make the steamboat a dwelling house within the ordinary meaning of that word ? It is true that the boat might not, owing to its being personal property, be exempt within the meaning of our statute, yet I think the illustration a fair one, for the purpose of showing the absurdity of calling everything which may be used as a place of abode, a dwelling house. Yet such seems to be the reasoning of the court; and the same magical power of construction which can convert what is essentially a store, constructed, known, and used as such, into a dwell- 19 Phelps V. Rooney, et al. ing house, in the ordinary or grammatical sense of the "wordsj because some members of the human family hap- pened to take up their abode therein, could, and if con- sistent, would be bound, under the same state of facts, to convert into dwelling houses, churches, warehouses, depots, barns, miUs, manufactories, boats, vessels, and every other structure or edifice, though still occupied for the purposes for which they were designed. Thus, what is to-day a mill or factory, kaown and called such in ordinary lan- guage, would tomorrow become a dwelling house, upon some person making a residence of some remote nook or corner of it. When this loose rule of construction is once established, where is it to end ? All the witnesses concur in saying that the building is principally designed and used as a store, and that its use as a residence is merely incidental. The proof shows that at the time of the execution of the mortgage in question, and long before and after, the maiu portion of the building was leased by Booney to tenants, who occupied it as a wholesale and retail clothing store, at an annual rent of $1,500, and that the annual value of the portion occupied as a residence was $250. Thus, it appears, not only that the building is by construction a store, but that six-sevenths of its value and use is devoted to that purpose. Now, if one-seventh of a building, being used as a residence, converts it all into a dwelling house, it is important that the court should define what lesser fraction would not. This is a calculation into which I confess my utter inability to enter; but as it is an im- portant question, in which all the citizens of the state, and many out of it, have a deep interest, I insist that the court, which has adopted such construction, should define, by some means, arithmetical or otherwise, just how far this Opinions , of ,Qhi0f iJusUoe Dixon. 20* system of transmutation may be carried. I mention this because it is intimated in the opinion of the court that a case might happen of a party occupying a part of' a hotel, or a mill, where they would not feel bound to consider it T^rithin the rule. It seems to me that such an intimation when compared with the principle's established by the de- cision in this case is irrational, and that there can be nO' consistent limit except that fixed territorially by the statute. The defendant's lot is 20 by 150 feet. He might own,, on either side of him in the same block, two and two- thirds more stores, and still- be within the statute limit. He might also very conveniently occupy the whole of tha third or fourth stories for the various purposes of a kitchen, bedrooms, parlors, etc. If such were the case, he would, at the same rate, be in the enjoyinent of an an- nual income of $5,500. Would the court interfere in be- half ■ of a creditor in such a case ? If so, how, and upon what principle? I think it an utter perversion of language to call this building a dwelling house. It is not, in any fair sense of the word. !N'o one knows it as such; no one calls it such, A circumstance worthy of note here, and which ap- pears from the case, is, that neither the defendant, nor any of the witnesses called to testify, not even those called by him to prove that it was his dwelling house, call it by th^t name. No one ever seems to have imagined that it was a dwelling house. It seems to have been left for the courts to make that discovery. The defendant, in his mortgage, called it "store Wo. 107 East Water street," and every witness spoke of it in that way, or as "the Kooney store." If the defendant had possessed a water power upon ' the premises, which he had improved by the erection of a. 21 Phelps V. Rodney, et 61. mill or a 'factory, in "some part of whieh he resided, the result must have been the Samfe. We are told iu history that Diogenes, 'the 'fedehrated cynic ^philosopher, at one time tbok up his abode in a tub belongiBg to the temple of Gybele; I suppose the tub be- came vpse facto a dwelling house in the ordinary sense 'of thart word, and that hereafter strict propi'iety Of language will require us to say that he lived in a dwelling 'house be- longing to the temple instead of a tilb. S'ay,'more, I sup- pose' the moment the philosopher -gbt into the tiib, the whole temple instantly became a dwelling house, and that he might, had he been so inclined, have claimed it as ex- empt under the'bperation of a statute like Ours. If tomorrow a man in Madison should sell to another a lot in the city of Milwaukee, Which the puTchaser 'had never seen, and should represent to the purchaser that it had a dwelling house upon it, and should convey it as a house and lot, and the next day the pTirchaser should gO to Milwaukee to see his property, I sincerely believe, if he had n.ever hekrd of the decision in this ease, that he would be surprised to find himself the owner of a lot With a shot toWer upon it. If afterwards he should teturn to the ■seller and complain of fraud and misrepresentation, I suppose the justificaljion of the Seller Would be that the courts had decided that whatever building a man lives in, is a dwelling house ; that at the time he sold, his f ainily resided in the tower, and therefore the purchaser 'had got what he bargained for. I mention theSe things for no other purpose than to show what appears to me to be the absurdity of the meaning attached to the Words 'dwelling house,' and how totally variant it is from our common un- derstanding of them. Opinions of Chief Justice Dixon. 22 A reason strongly urged for the contruetion given by the court, is that any other construction would operate harshly on a large class of small tradesmen, artizans, and shop- keepers in some of our large towns, such as seamstresses, shoemakers, and others of kindred occupations, who, it is said, are oftentimes under the necessity, to a limited ex- tent, of combining business and residence in the same building. My answer to this is, first, that if such would be the result, which I by no means admit, it furnishes no reason for the violation of well settled rules of statutory construction ; and, secondly, that that question is not at all involved in this case. When a case arises where a resi- dence is the principal, and the business the incidental use of a building, I will be prepared to discuss that question ; but I do not feel called upon now to do so. The design of the legislature was to give to the debtor a home, and not to create in his favor a source of revenue. In this respect, I think, the construction given is not only a violation of the letter, but of the spirit of the statute. By pursuing the obvious import of the language, every object intended would be attained with no substantial inconvenience. But by the construction given, the fraud and injustice which dishonest debtors will be enabled to practice upon their creditors, is beyond calculation. The door to them is opened beyond the power of the courts to remedy. It is suggested by the court, that the law is defective in allowing debtors to build large and expensive houses, and to hold them against their creditors. How much is the evil remedied by the decision in this case ? It is laid down as a rule in construing statutes, that courts are to presume that the legislature intends only what is just and equitable. But here, because the law has some defects, (as what law has not?) it seems to be presumed that the legislature 23 Phelps V. Rooney, et al. intended to perpetuate all the iniquity in their power. If debtors have heretofore taken advantage of this defect in the statute, by building large and expensive houses, in- stead of devoting their means to the payment of honest debts, when it has been universally understood that they could use their houses for no other purposes than as resi- dences for themselves, how much more will they do so now, when it is declared by this court, that they can make them a source of revenue by converting the greater portion into places of business to be occupied by others. By this un- just construction, the evil is enhanced one hundred fold, and that too, it seems to me, without the slightest shadow of sanction by any language used by the legislature. In addition to the decision being contrary to public policy, and public justice in general, it is in direct viola- tion of the rights of the plaintiff in this case. He ad- vanced several thousand dollars on the security of this property. It was described and in actual use as a store. His own senses told him it was a store. It does not ap- pear whether he knew the defendant's family lived in it or not. That fact might have been concealed from him. At all events there was nothing to put him on inquiry. If he' ]^ad known it, however, and had sought advice, I very much doubt whether any one would have advised him that the signature of Mrs. Kooney was necessary to the validity of the mortgage. The defendant intended and supposed he had given the plaintiff security. The plaintiff believed he had it, and courts will not annihilate contracts and de- stroy the rights of parties except in clear cases. They will rather adopt such a construction as will promote the ends of justice and equity. Although I am in favor of a fair, I might say liberal, construction of the statute in question, in aid of the inten- Opiimas of 'Chief Justice Dixon. 24 tion of the legisllatupe, yet as the fifty-second section, un- der which the def ejise in this action is made, is a disabling act, it should he in this case strictly construed. , This rule of construction is well settled. In Smith j, or debts or choses in ac- tion due to the old town, should thereafter be owned and enjoyed by, and cpllected for the said towns, of Montpelier and East Montpelier, in proportion to the gra,nd list of tlie persons and property within the territorial limi,ts of said towns, for the year when said act was passed. In a suit by Montpelier against East Montpelier (\srhich latter h,ad obtained the whole of the funds prising from the rents pf suPh lands for the year 1851, and refuspd to pay over to the former any portion thereof), to ireeove^ its share of such ivj^As, in proportion to said gi:an4 li^*? ^\ ^^^ held, that such trust funds were not within the lyords of the act, ai^d that neither of said new towns had any Ipgal interest, there- in. In the opinion, the court refer to, and comnieAlj upon the case pf Dartrnpii^th College, v. "W^op.dward, and several Opinions of Chief Justice Dixon. 120 others, and say that if the words of the act had extended to these trust funds, it would, without the assent of the in- habitants of the old township, who were to be regarded as the beneficiaries, or cestuis que trust, have been liable to constitutional objections. If this be so, and such assent could not be obtained, it would seem that the old corpora- tion, for the purpose of such trust, must be still regarded as in existence. For otherwise it is difficult to perceive how the legislature might not defeat the charity, which all agree it cannot do. To the same effect is the case of the Trustees of the !N"ew Gloucester School Fund v. Bradbury, 11 Me. 118, where an act of the legislature of Maine, au- thorizing the town to choose a new set of trustees, and di- recting the first trustees to deliver over the property to them, was held unconstitutional. The fund had the effect to reduce the amount raised by taxation for support of schools in the town, whose inhabitants were thus benefi- cially interested in it, and the case was said to be within the very language of the case of Dartmouth CoUege v. Woodward. An attempt to distinguish between a munic- ipal corporation and a corporation merely private, in re- spect to such funds, was repudiated. The court observe that Chief Justice Marshall, in de- livering the opinion of the court in that case, says: "Strictly speaking, public corporations are such only as are founded by the government, for public purposes, where the whole interests belong to the government;" and that no authority exists in the government to regulate, control or direct a corporation or its funds, "except where the cor- poration is in the strictest sense public; " that is, where its whole interests and franchises are the exclusive property and domain of the government itself." To the same effect, likewise, is the case of Plymouth v. 121 Town of Milwaukee v. Cit'^ of Milwaukee. -Jackson, 15 Penn. St. 44, where officers elected by the owners of land within the original township of Plymouth, to take charge of funds arising from lands appropriated for the religious, literary and charitable uses of its in- habitants, which officers had, by an act of the legislature, been declared to be a body corporate by the name of the "Proprietors of Plymouth," were held to be in esse as such ■corporation, notwithstanding a subsequent act of the legis- lature, dividing the township of Plymouth and erecting two new townships out of it and some adjoining territory, by the names of Plymouth and Jackson, and authorizing the inhabitants of Jackson to elect officers who were to take ■charge of a portion of said funds within that township, and to be a corporation by the name of the "Trustees of the township of Jackson." See, also, the cases of Harrison v. Bridgeton, 16 Mass. 16 ; Commonwealth v. CuUen, 1 Har- ris, 133 ; Brown v. Hummel, 6 Barr. 86 ; and Poultney v. Wells, 1 Aik. 180, cited by the court of Vermont. For the reasons which we have thus imperfectly at- tempted to give, and upon the authorities we have cited, we answer the first question in the negative, and give it -as our opinion that the legislature has not the power, under the provision of our constitution and that of the constitu- tion of the United States to which we have referred, either directly or iadireetly to divest a municipal corporation of its private property, without the consent of its inhabitants lawfully obtained. Our answer to this question renders it unneeessary for us to notice the other. We will do so only so far as it is necessary, in the opinion of the court, to ac- quit the legislature of all intention, by the act extending the limits of the city of Milwaukee, to injure or deprive the town of any of its just rights. It is evident to our minds, from all the circumstances, that at the time of the Opinions of Qhi^f Jxistic^ Dixoin. 122 passage of t^^t act tl;ie. interests of the town in tlie, lan,^ were either unjqiown, or not tho,ijig];i^ of, a^icid th^t, there- fore, its possible ?:(fects npon thena were npt taken ii^to co;^- sider4tip:n. Contrary to our intention at the ontset, we ]p,ave ex- amii^ed ma^y authorities, scixA. disposed of the case before no;tieing those cited and relied upon by the counsel for the city, which we will now proceed, to, do. And, first, we may notice a view taken by the counsel, upon which hinges, to a great extent, the application which he seeks to mak^ of them to this case. The land in question, was purchased on the 14th day of January, 184^. The city was originally cha,rtered on the 31st day of the same i^ojith. So that, in reality, the territory constituting thp,^ city was, at t^ie tim^ the land was acquired, ^ part of the town. Upon these facts he says it is to be presumed Ijhat the land was paid for with funds raised from tl\e Aj^hole, ta,xable property of the town. He furthermore states, that the present limits- p;f the city embrace a much large? portion o^ the, taxable property of the town, as it was before the. city "was incor- po];a,ted, than that which was left in the towiji after suc^ act of incorporation of the city. He therefore contends, that it was the intention of the legislature, by the separa- tion of 1852, to transfer the property to the city, because the city, having contributed more towards' the purchase money, has a better right in equity than the town. In an- swer to this argument,- we may say, that it does not ap- pear from the record that the city paid ajiy portion of the purchase money, no;c does the record, show, wh,at the value of the taxable property of the city, as compared with tha.t of the town, is. "W^ cannot indulge in tbe presumption that the city paid any portion of the pui;chase money. Th,e purchase of the land and pri|gin|a], incorporation of the 123 Town of Milwaukee v. Cit'^ of Milwiaukee.. city were very nearly contemporaneous acts, and it is quite as natural to suppose that the town paid for the land out. of money after^yards, raised by the inhabitants, ^s with funds realized ii^ any other way. But suppose it was paid for in the manner which the counsel invitps us to presume, still tjie inhabitants of the city, by procuring it to b,e in- corporated as such, without any provision as to the land,, and by an acquiescence of six years apd upwards, must be presumed to have released their interest in it, and to have consented that it remain the sole property of the town as it was after such division. The charter of the city must be presumed to have ^een granted at the request of its inhab- itants, and the loss tp the town of so much of its taxable property, without a corresponding diminution of the ex- penses of its government, together with the advantages gained to the inhabitants of the qity by their new form of government, furnishes amplp ppnsideration for such re- lease, which, under the circumstances, must be presuraed. By incorporating the city, without dividing the land, it; became the sole property of the town; and, if such effect was inequitable, it was not in the power of the legislature, without the consent of the town, afterwards to remedy the evil. See Hampshire ?;. Franklin, 16 Mass. 76, where the doctrine of such presiimptions, and the power of the leg- islature, are fully discussed. With these remarks, it will be readily perceived that the cases of Hempstead v. Hemp- stead bear very remotely upon the question we are consid- ering, and,' with the exception of a single remark, merely obiter made by the chancellor in 2, Johnson, and subse- quently repeated in Hopkins and Wendell, their authority dpes! not at all conflict with the conclusions to which we have arrived or the cases to which we have referred. It is» Opinions of Chief Justice Dixon. 124 said ttat a town cannot "possess any control or rights in or over lands lying within another town." As applied to the facts in those cases, or if understood as limited to the rights of towns to acquire lands outside their boundaries, it is very proper. But, farther than this, we are unwill- ing to go. There was nothing in the facts of those cases which called for the remark or the establishment of such a principle. Each turned upon the doctrine, in favor of which the courts make many strong arguments, that the act dividing the town of Hempstead and creating the town of North Hempstead was passed at the request of the in- habitants, and that with their assent it operated as a legis- lative partition of the common property, which was di- vided according to the limits of the towns as they existed after the division. Chancellor Kent, in the case in 2 Johnson, says expressly, that "the erection of a new town cannot impair the rights of the old one, and the new town has none but what are given to it at the time of creating it, or subsequently." That it was a legislative partition with the consent of the inhabitants, is sustained by the language of the act, long acquiescence, and many express acts on the part of the towns themselves. It was upon this ground the cases were decided. In Hopkins, the chancellor says, that "the legislature, acting upon the application of some, -and with the acquiescence of all, divided the town," and concludes his opinion in these words : "The general con- clusions from all these views are, that the division of the original town of Hempstead, in 1784, was a legislative par- tition of the lands of the town between the two new towns ; that the partition of these lands by the division, of the town must have been within the contemplation and with the as- sent of those who solicited and those who acquiesced in the 125 Note to Town of Milwaukee v, Cit'^ of Milwaukee^ division ; and that the partition so made was not inequita- ble or unjust, in the state of things which then existed." It follows from the views we have taken, that the judg- ment of the circuit court must be reversed, and a new trial awarded. NOTE. Milwaukee v. Milwaukee, supra, has been cited with^ approval in Wisconsin, as follows : State ex rel. etc., 'v. Haben, 22 Wis. 666; Mills v. Charlton, 29 Wis. 415; Town of Depere v. Town of Bellevue, 31 Wis. 125 ; Atty.- Gen. V. City of Eau Claire, 37 Wis. 436; Oathcart v^ Comstock, 56 Wis. 600; Schriber v. Town of Langlade, 66 Wis. 631 ; Forest County v. Langlade County, 76 Wis. 610; School Directors of Pelican v. School Directors of Eock Falls, 81 Wis. 438 ; City of Columbus v. Town of Columbus, 82 Wis. 381, 16 L. R. A. 698; School Direc- tors of Town of Ashland v. City of Ashland, 87 Wis. 536; Joint School Dist. ISTo. 8 v. School Dist. ISTo. 5, 92 Wis.. 612 ; State ex rel. Princeton v. Maik, 113 Wis. 246. It has been cited with approval outside of the Wisconsin Supreme Court as follows: Pearson v. State, 56 Ark. 153, 35 Am. St. Eep. 93 ; Lucas v. Bd. of Comrs. of Tip- pecanoe County, 44 Ind. 532, 538 ; City of Wellington v. Wellington Township, 46 Kan. 221, 39 la. 44; State v. Foley, 30 Minn. 357 ; City of Winona v. School Dist., 40 Minn. 18, 3 L. R A. 48 ; Board v. Board, 30 W. Va. 430. Valuable collections of authorities citing Milwaulcee v^ Milwaukee, supra, will be found in notes to the follow- ing cases reported in L. E. A. : State ex rel. Eichards v. Cincinnati (52 Oh. St. 419), 27 L. E. A. 738; State ex rel. Bulkeley u. Williams (68 Conn. 131), 48 L. E. A. 486; State ex rel. White v. Barker (116 la. 96), 57 L.. E. A. 251. Opinions of CRi^ ■Justice l)i^on. 126^' Hasbrouck v. The City of Milwaukee. June Term, 1860. (13 Wi§. 37.) It appears in this case that the Legislature of Wisconsin iij chapter 111, Laws of 1853, authorized the City of Mil- waukee to issue the bonds of said city to an amount not ex- ceeding fifty thousand dollars, ($50,000), to raise money id he expended in the construction of a harbor in that city. By an Act of March 18thj 1856, the Legislature increased the amount of bonds the city could issue for the above purpose to One hUndrfed thousand dollars, ($100,000). By a furthei" Act of the Legislature approved February 2Srd, 1857, it was provided that the city could issue such ah amount of bonds as might be necessary to complete the harbor. Action was brought by Hasbrouck in the Circuit Court of Milwaukee County to recover a balance of some- thiiig over Seventy-three thousand dollars ($73,000), al- leged to be due him from the (3ity, for labor and materials furnished in the constructioh of Said harbor. It appeared from the complaint that Hasbrouck was the assignee of various contracts entered into with the city for the con- struction of the harbor, prior to the passage of said Act of February, 1857, and that said contracts provided for pay- ments for the construction of such harbor far excefeding in amount the sums the city was authorized to expend by said Acts of 1853 and 1856, and the amount sued for by Hasbrouck was a portion of such excess. The Circuit Court sustained a demurrer to the complaint on the ground that it stated no cause of action. The other facts sufficiently appear from the opinion. ^27 , Hasbroack v. The Gty of Milwaukee. The following 'are the propositions of law decided : A municipal corporation does not possess the power to engage in works of internal improvement, such as the construction of railroads, canals, harbors and the like, unless that power is specifically granted by the legis- lature. The "act to authorize the mayor and common council of the city of Milwaukee to issue bonds," etc., ap- proved April 1st, 1853, and the act of March 18th, 1856, amending the same, did not confer upon the city of Milwaukee power to construct a harbor, the expense of which should exceed $100,000; and a contract for the construction of such harbor, which provided for,a greater expenditure, was void as to the excess, for want of corporate power in the city to make such contract. A subsequent legislative ratification of such contract was not sufficient propria vigore, and without evi- dence that such ratification was procured with , the assent of the corporation, or had been subsequently acted upon or confirmed by it, to make the contract obligatory upon the corporation. Dixon, Chief Justice. The power of municipal corpo- rations, when authorized by the legislature, to engage in -works of internal improvements, such as the building of railroads, canals, harbors and the like, or to loan their ■credit in aid thereof, and to defray the expenses of such improvements and make good their 'pledges by an exer- cise of the power of taxing the persons and property of their citizens, has always been sustained on the ground that such works, although they are in general operated rand controlled by private corporations, are nevertheless. Opinions of Chief Justice Dixon. 12S by reason of the facilities which they afford for trade, commerce, and inter-communication between different and distant portions of the country, indispensable to the public interests and public functions. It was originally supposed that they would add, and subsequent experi- ence has demonstrated that they have added vastly and almost immeasurably, to the general business, the com- nlercial prosperity, and the pecuniary resources of the inhabitants of the cities, towns, villages and rural dis- tricts through which they pass, and with which they are connected. It is in view of these results, the public good thus produced, and the benefits thus conferred upon the persons and property of all the individuals composing the community, that courts have been able to pronounce them matters of public concern, for the accomplishment of which the taxing power might lawfully be called into action. It is in this sense that they are said to fall so far within the purposes for which municipal corporations are created, that such corporations may engage in, or pledge their credit for their construction. Upon no other principle can the exercise of the power of taxation for such objects be sus- tained. And in doing so the courts have never, to my knowledgCj extended it to cases where it was not apparent that the members of the corporation concerned would be benefited by the construction of the work contemplated. The building of the harbor at Milwaukee comes clearly within this principle, and upon it there can be.no doubt that so far as the corporation has acted within the limits of the authority granted by the legislature, it is bound to . a strict performance of its contracts. But whilst the power of such corporations when authorized, thus to en- gage in or loan their credit for the making of such im- provements, has been almost invariably upheld, it has not 129 Hasbrouck v. The City of Milwaukee. as yet, I believe, been adjudged in any case, tha,t they could do so without such legislative authority. No court or writer upon the subject, so far as I know, has ever claimed or intimated that they could do so in the absence of such authority. On the other hand, the general ex- pression of opinion has been that they are incompetent, by virtue of their ordinary powers, and without such spe- cial legislative authority, to contribute to such enterprises. Mr. Pierce, in his, treatise on American Railroad Law, re- cently put forth, says that no attempt on their part, with- out such special legislative authority, to exercise such ex- traordiuary powers, has yet been the subject of judicial ex- amination, and adds his opinion that it could not be sus- tained. In several cases which have heretofore been be- fore this court, it has been conceded by counsel that it could not be. In this ease, the counsel for the plaintiff in error expressly waived its discussion, and virtually ad- mitted that the rights of their client must stand or fall upon the true construction of the several acts of the legis- lature by which the city was permitted to engage in the work. They rested the case upon the effect to be given to those acts and the action of the city under them. Its de- cision, therefore, depends upon the construction which they shall receive, and the several steps taken by the city in pursuance of them. Ajid here it will become more convenient for me to re- verse the order of argumtent pursued at the bar, and of time in which the several acts were passed, and to examine the last position taken by the counsel for the plaintiff in error under the last act first, and in connection with it the authorities by which they seek to support it. It is said by them, that if it be conceded that under the two previous statutes the city was only authorized to enter into 9 Opinions of Chief Justice Dixon. 130 a contract for the construction of a harbor, the expense of which should not exceed $100,000, and that the municipal authorities were not, at the time they attempted to do so, empowered to make an agreement, or bind the corporation for the payment of a greater sum, the defect is cured by the operation of the act of February 23rd, 1857, (chapter 66, Private Laws, 1857), and that from and after the passage of this act, the agreement for the excess became valid and binding upon the city. To this position counsel cite several authorities, and as I am unable to agree with them, an examination of those authorities will become necessary. In the iirst place, it will be observed from what has already been said, and should be borne in mind, that the subject with which we are dealing is not one of public policy merely, but of corporate power, and that the inquiry is whether, where the supposed contract of a pub- lic corporation is absolutely void for want of capacity to enter into it, a subsequent legislative ratification or recog- nition of it is sufficient, propria vigore, and without any evidence that such ratification or recognition was procured at the instance or with the assent of the corporation, or that the corporation had subsequently acted upon or con- firmed it, to give such contract life and validity, and make it obligatory upon the corporation. Conceding that the previous statutes did not confer upon the city the power to enter into the contract, which I shall discuss hereafter, then I understand such to be the true nature of the inquiry here presented. I 'do not understand that the city, by ;any appropriate action, petitioned or asked for the passage ■of -the act; nor is it averred that it subsequently ratified or assented to it. On the contrary, I infer from this pro- ceeding, that it has refused to be bound by it, or the con- tract to which it had reference. Under these circum- 131 Hasbronck v. The City of Milwaukee. stances the question, is, can the legislature, by recognizing the existence of a previously void contract, and authorizing its discharge by the city, or in any other way, coerce the «ity against its v^ill into a performance of it, or does the law require the assent of the city as well as of the legisla- ture in order to make the obligation binding and effica- cious ? I must say that, in my opinion, the latter act, as well as the former, is necessary for that purpose, and that without it the obligation cannot be enforced. A contract void for want of capacity in one or both of the contracting parties to enter into it, is as no contract ; it is as if no at- tempt at an agreement had ever been made. And to ad- mit that the legislature, of its own choice and against the wishes of either or both of the contracting parties, can give it life and vigor, is to admit that it is within the scope of legislative authority to divest settled rights of property, and to take the property of one individual or corporation and transfer it to another. It is certainly unnecessary at this day to enter into an argument or to cite authorities to show that under a constitutional government like ours the legislature has no power. ■ It is undoubtedly true that in cases like the present, where there is a strong moral but no legal obligation to pay, courts have often seized, and may again seize upon very slight circumstances of assent in order to give effect to the contract. And in this case, if it appeared that the city did, by some authorized action, procure the passage of the act, or had subsequently acquiesced in it by ratify- ing the contract, there would be little difficulty in the way of holding it bound by its terms. In such cases it is the contemporaneous or subsequent assent of the parties to be found, coupled vsath the power or ability on their part to Opimom of Chief J^Uce DizdA. iSt give such aBstent, which makes thfe contract oHigatdfya But the giving of such assent is a matte* which depends, upon their own free will. It is A volufitary act which they may do or not as they see fit, and in case they think proper to withhold it, the legislature has no power to com- pel it. If in a transaction between private parties, a contract made by them should be declared void by the pro- visions of some statute, as for instance, a statute against usury, no one I think would insist that the legislature could, without the consent of the borrower, remove the in- firmity and make the agreement obligatory Upon him. It might change the entire policy of the State upon the sub- ject of interest, and declare that no rate however exorbitant should avoid the security, but it could not, without the assent of the parties, interfere with past transactions. Corporations, whether public or private, are within the same rule of protection, and I can see no substantial ground for a distinction betweeli contracts which are void for a want of capacity in one or both of the contracting parties to enter into them, and those which are void for some other cause. If the city in this instance had ac- cepted and approved the act of the legislature, in whole or in part, there can be little doubt that to the extent of such acceptance and approval it would have become bound. The case would then have fallen within the prin- ciples of the case of the City of Bridgeport v. The Hous- atonic Railroad Company, 15 Conn. E. 475, where the bonds of the city issued to aid in the constructioli of the company's road were held valid, because the confirmatory resolution of the general assembly Was af tetWards accepted by the fteemen of the city. It would also come within the doctrine of this court laid down in the recent case of 133 Hasbromk o. The QUy of Mikoauke?. Millg V. Crleasoa ; but 1111111 there be such aceeptauee I kaow of no authority for saying that the city is bound. The mistake of the counsel for the plaintiff in error oon- siits in their supposing it to be a mere question of public policy. If it were, and the court were only called upon to detoTmine what was the policy of the State with refer- ence to allowing municipal corporations in general, and the corporation of Milwaukee in particular, to engage in works of that kind ftt the time the contract was enlarged, then I would admit that their position is supported by the cases of Shaw v. !N"orfolk County Railroad Company, 6 the constitution in the grant of jurisdiction. And we were aided in arriving at this conclusion, by decisions of the supreme court of Missouri, in somewhat analogous cases, .«xcluding original jurisdiction of causes of merely private interest. State v. Stewart, 32 Mo. 379 ; State v. Lawrence, Opinions of Chief Justice Ryan. 282 38 id. 536; Foster v. State, 41 id. 61; Vail v. Dinning, 44 id. 210; State v. Vail, 53 id. 97. In our view, the jurisdiction of the writ is of a qvMsi prerogative writ. The prerogative writs proper can issue only at the suit of the state or the attorney general in the right of the state ; and so it must be with the writ of injunction, in its use as a quasi prerogative writ. All may go on the relation of a private person, and may involve private right. It is- the duty of the court to confine the exercise of its orig- inal jurisdiction to questions puhlici juris. And hereafter the court will require all classes of cases, as it has hitherto done some, in which it is sought, to put its original juris- diction in motion, to proceed upon leave first obtained,^ upon a prima facie showing that the case is one of which it is proper for the court to take cognizance. Although the writ of injunction was at no time properly a jurisdictional writ, and it has long been held to be a judi- cial writ only, used to give effect to the general jurisdiction of courts of equity, yet in the early history of the English Chancery, the use of the writ rested on a jurisdiction of its own, borrowed from the Roman law by the churchmen who first sat in that court. 1 Spence, 668. And this early use of the writ as a quasi jurisdictional vn-it has aided us ia giving to it the construction and use in the constitution, which we adopt. We ought, perhaps, earlier in the discussion, to have in- dicated another section of article VII of the constitution, which has aided our conclusion. Section 8 gives jurisdic- tion to the circuit courts, original in all matters, civil and crim i nal, within the state, not excepted in the constitution or thereafter prohibited by law, and appellate from all in- ferior courts and tribunals, and supervising control over the same, and also power to issue writs of habeas corpus^ 283 Altorney General v. Railroad Cos, mandamus, injunction, qu-o warranto, certiorari and all other writs necessary to carry into effect their judgments, etc., and a general control over inferior courts and jurisdic- tions. A great jurisdiction, comprehending, as 0. J. Stow remarked, in Putman v. Sweet, the united powers of the English courts of the King's Bench, Common Pleas, Ex- chequer and Chancery. The same writs are granted to those courts as to this. It is impossible for a lawyer to suppose that they are granted in the same sense and with the same measure of jurisdiction, to this court as to those courts. Such a proposition would shock the legal sense of any professional man. And the distinction is to be looked for, and is readily found, in the general constitution and functions of those courts and of this. The writs are given to the circuit courts as an appurtenance to their general original jurisdiction ; to this court, for jurisdiction. Those courts take the writs with unlimited original jurisdiction of them, because they have otherwise general original jur- isdiction. Other original jurisdiction is prohibited to this court, and the jurisdiction given by the writs is essentially a limited one. Those courts take the prerogative writs as part of their general jurisdiction, with power to put them to all proper uses. This court takes the prerogative writs for prerogative jurisdiction; with power to put them only to prerogative uses proper. The circuit courts take the writ of iujunction with all the powers and uses of the English Court of Chancery. This court takes it as an integral ele- ment of its jurisdiction of prerogative VTrits. And it would be a rude and criminal emasculation of the judicial charter of the state, to disfranchise this court of all jurisdiction or use of injunction, as it would be a wild and reckless delu- sion, undiscerning the symmetrical distribution of judicial powers ia the constitution, to attribute to this court the Opinions of Chief Justice R^an. 284 same jurisdiction and uses of the writ which the circuit courts have. And so the difficulty which seemed so great, becomes so little, and is overcome, as difficulties often are, by being directly met and carefully examined. And thus we find that Smith, J., was more apparently than really inaccurate in Attorney General v. Blossom, when he classed injunction with the other writs given, and called the whole group pre- rogative and original writs. Tor, in our view of its use, the injunction given to this court seems to become a quasi prerogative writ, and founds jurisdiction as if it were an original writ. It is certainly competent for the constitution to give new writs, or to put old writs to new uses ; to make any writ, by the use to which it puts it, prerogative or orig- inal ; and to found jurisdiction on any virrit, as in case of a prerogative or original writ. And this it appears to have done, in effect, with the injunction which it gives to this court. We therefore hold that this court has original jurisdic- tion of an information on behalf of the state in the nature of an injunction bill in chancery, in all cases coming within the scope of the original jurisdiction conferred on this court by the third claiise of section 3, article "VII of the constitution, in which injunction is the appropriate reme- dial writ. The original jurisdiction of the court by way of injunc- tion being thus settled, no question was made. on the argu- ment, and it is not perceived how any could well be, of our jurisdiction to entertain the informations in these causes, if they make a case for equitable cognizance. II. But equitable jurisdiction of such informations was denied. It was atgued that courts of equity have no juris- 285 Attorney General v. Railroad Cos. diction, at the suit of the attorney general, to enjoin usur- pation, excess or abuse of corporate franchises. This question was argued very ahly and at large, and has been carefully considered, although we have had no diffi- culty in coming to the conclusion that courts of equity have- such jurisdiction, and that it is a very beneficial jurisdic- tion, almost essential to public order and welfare. It was hardly denied that the English court of chancery entertains jurisdiction in such cases; and indeed the Eng- lish books leave little room for such a denial. But it was said that, in England, the attorney general' has a right to elect his forum, legal or equitable. And it is so said in some of the cases. Attorney General v. Mayor of Gal way, 1 MoUoy, 103. But it appears to us that this- logically follows, everywhere, upon equitable jurisdiction to restrain corporate violations of charters or other public law. In such cases there is always a remedy at law. The- attorney general may proceed at law by qvx) warranto to forfeit the charter of the offending corporation; and, if there be a penalty, as often happens, he may sue for it at law. And the concurrent remedy by injunction inevitably gives the election imputed to the attorney general. And; we see no reason why the attorney general here has not the same election. To deny him such an election is only an- other way of denying the jurisdiction. The equitable jurisdiction precludes the objection that there is an adequate remedy at law. It admits the remedy at law, but administers its own remedy in preference, when' the state seeks it in preference. It seems to proceed on the presumption that it may better serve the public mterest to restrain a corporation, than to punish it by penal remedies' or to forfeit its charts; and that, in that view, the proper- •Opinions of- Chief Justice Ryan. 286 oiEcers of the state should have an election of remedies. And we may as well say in this connection, that the juris- diction to entertain these informations is wholly independ-_ ent of an adequate remedy at law; and that, were that otherwise, we could not consider the informations in the nature of a quo warranto, pending in this court against these defendants, as an adequate remedy at law, which could be a substitute for a bar to the injunction asked. Judgments of ouster on those informations might not only be of far more grave consequence to the defendants, but might be far less beneficial to the state, and less accordant with its policy, and altogether less equitable and proper, than the injunctions sought to restrain the defendants from doing what is alleged to work a forfeiture of their charters. Doubtless the court has power, in granting in- jimctions, to prescribe conditions controlling the action of the attorney general in the quo warranto cases. But if this court can enjoin, it can do so without regard to any remedy at law ; and the attorney general has a right of elec- tion to resort to the more lenient remedy of injunction, in preference to the harsher and more dangerous experiment of forfeiture. It was further urged for the defendants, against the au- thority of the English cases, that the jurisdiction of the English chancery in such cases, rests largely on recent acts of parliament. And we are referred, in support of that position, to the Kailway and Canal Traffic Act of 18 5i, and to the Common Law Procedure Act of the same year (17 and 18 Vict. ch. 31 and ch. 125). We have carefully examined these statutes, and Mr. Joyce's comments upon them. We find that 1i.e former of them enlarged the pow- ers of some of the common-law courts, and gave them ju- risdiction of certain summary proceedings, and the equi- 287 Atiomey General v. Railroad. Cos. table Avrit of injunction for certain purposes, against rail- way and canal companies. The second of these acts gives some equitable powers, and the writ of injunction, in cer- tain cases, to courts of common law. But we fail to dis- cover that either of these statutes adds anything to the ju- risdiction of courts of equity. In this connection we were led also to examine the Railway Act of 1840 (3 and 4 Vict. ch. 97), and the Eailway Act of 1844 (7 and 8 Vict. ch. 85). Section 11 of the former of these two latter acts, and section 17 of the latter of them, the second of these sections being a substitute for the first, give certain author- ity to the Board of Trade to require the attorney general to proceed against railway companies for violation of legal duty ; and, upon such requisition, make it obligatory on the attorney general to take such proceedings. While the lat- ter of these sections was in force, the attorney general filed an information in the court of chancery against a railway company for an injunction against acts within the letter and spirit of the section, without any requisition of the Board of Trade. On application for injunction, the vice chancellor says : "It is, however, contended that as the act of 7 and 8 Vict. ch. 85, sections 16, 17, prescribes a particular rem- edy in such a case, the attorney general cannot take pro- ceedings otherwise than in accordance with that provision. "This objection in truth involves the contention that this court has no jurisdiction to entertain the suit by the attorney general, unless it is instituted under the circum- stances mentioned in those sections. "The effect of those sections is not to take away the right of the attorney general to file such an information at his discretion, although there is no certificate of the board of trade, or the jurisdiction of the coiirt to entertain such a Opinions of Chief Justice Ryan. 288 suit. The only effect is, that if the board of trade has cer- tified to the attorney general, he is bound to act, and com- pel the railway company to abstain from doing what is in violation of the law. In that particular case he can exer- cise no discretion; he must sue." The information was sustained and the injunction is- sued. Attorney General v. Great Western Kailway Co., 1 Drewry & S. 154. We have been unable to find any English statute enlarg- ing the jurisdiction of the court of chancery in such cases ; and we find all the English eases proceeding without ref- erence to statutory jurisdiction. We find no room for doubt that this jurisdiction of English courts of equity is independent of all authority by statute, and has long been as well recognized as any ground of equitable jurisdiction whatever. And these views are fully sustained by the case just quoted. We cannot state the rule better than by taking it from the excellent work of Mr. Brice, so recently given to the profession. "Under many circumstances, the court of chancery has, on public grounds, jurisdiction to prevent corporations acting in various ways, or contrary to the intent for which they have been created. The public, however, must be represented in all applications relating to such matters, and this is done by the intervention of the attorney general. ]!To single person, whether a member of the corporation in question or not, is able on his own account, and of his own motion, to call upon the court to interfere for his special protection. The wrong he complains of is not confined to himself; no right or privilege peculiar to himself is vio- lated; the wrongs inflicted and the rights invaded afFect the public, and the public, consequently, must be a party 289 Attorney General v. Railroad Cos. to the proceedings. The occasions upon which the court will exercise jurisdiction to restrain the doing of acts of this kind, seem to fall into the three following heads:" The author then proceeds to give the three heads of juris- diction at large, which are thus classed in his own words : "1st. When a corporation is abusing powers given for pub- lic purposes ; 2d, or is committing a breach of trust ; 3d, or is acting adversely to public policy." We copy this last in full: "When any corporation is doing acts detrimental to the public welfare, or hostile to public policy. The right of the attorney general to interfere on these grounds was fully established in Attorney General v. Great North. Railway Company, where the defendants had engaged in an illegal trade in coals. It was objected that it was not competent for him to file an information. But Kindersley, V. 0.,. said : 'On this point I entertain no doubt whatever. When- ever the interests of the public are damnified by a com- pany established for any particular purpose by act of parlia- ment, acting illegally and in contravention of the powers conferred upon it, I conceive it is the function of the at- torney general to protect the interests of the public by an information; and that, when in the case of an injury to private interests, it would be competent for an individual to apply for an injunction to restrain a company from using its powers for purposes not warranted by the act cre- ating it, it is competent for the attorney general, in cases of injury to public interests from such a cause, to file an in- formation for an injunction.' " The writer then proceeds : "The above being the grounds of the jurisdiction of the court of chancery in this behalf, the next point is, when can the attorney general direct pro- ceedings on behalf of the public ? He may do so whenever 19 Opinions of Chief Justice Ryan. 290 public interests have been damnified, or will manifestly be danmified, in the result, by transactions which are now tak- ing place. And it would seem from the judgment in Ware V. Eegents Canal Company (3 De Gex & J. 212, 228), that he may do so when a corporation is going beyond its spe- cial powers, even though no definite injury has been done or is likely to be done to the public. Where there has been an excess of the powers given by an act of parliament, but no injury has been occasioned to any individual, or is im- minent and of irreparable consequence, I apprehend that no one but the attorney general, on behalf of the public, has a right to apply to this court to check the exorbitance of the party in the exercise of the powers confided to him by the legislature." Brice's Ultra Vires, 606-509. The custom of courts of equity to interfere in such cases, - at the suit of private parties, for private injuries, is quite old. It seems to have grown up out of the ancient juris- diction to restrain waste and nuisance. We shall not at- tempt to trace it. It is recognized as an established juris- diction by Lord Hardwicke in 1752 (Fishmonger's Co. v. East India Co., 1 Dickens, 163) ; and particularly as ap- plied to corporations exceeding or abusing their franchises, by Lord Eldon in 1815. Agar v. Kegent's Canal Co., Cooper, 7Y. In more recent times, as corporations have grown in number and power, cases applying this jurisdic- -tion to them are very numerous. We cite a few at random : Eiver Dun IST. Co. v. North Mid. Eailway Company, 1 English Eailway Cases, 135 ; Blackburne v. Glamorgan •Canal Navigation, 1 Mylne & K. 154; Coats v. Clarence .Eailway Company, 1 Eussell & M. 181 ; Dawson v. Paver, ;5 Hare. 415 ; Broadbent v. Imperial Gas Company, 7 De Gex, M. & G. 437 ; Ware v. Eegent's Canal Company, 3 391 Attorney General v. Railroad Cos. De Gex & J. 212 ; London & Brighton Kailway Company V. Cooper, 2 English Railway Cases, 312. The general grounds of jurisdiction, in favor of private persons as well as the public, are stated by Lord Eldon in Blackmore v. Glamorgan Canal l^Tavigation. "When I look upon these acts of parliament, I regard them all in the light of contracts made by the legislature, on behalf of every person interested in anything to be done under them ; and I have no hesitation in asserting that, unless that prin- ciple is applied in construing statutes of this description, they become instruments of greater oppression than any- thing in the whole system of administration under our con- stitution. Such acts of parliament have now become ex- tremely numerous; and, from their number and operation, they affect so many individuals, that I apprehend those who come for them to patliament, do, in effect, undertake that they shall do and submit to whatever the legislature empowers and compels them to do ; and that they shall do nothing else; that they shall do and forbear all that they are required to do and forbear, as well with reference to the interests of the public, as with reference to the inter- -ests of individuals. It is upon this ground that applica- tions are frequently made," etc. And the jurisdiction is now clearly defined as having two branches : one on behalf of the state, for public wrong, and the other on behalf of private persons, for private wrong, arising from an excess or abuse of corporate fran- chise. Relief against public wrong is confined to informa- tions by the attorney general. Ware v. Regent's Canal Company, 3 De Gex & J. 212 ; Brown v. Monmouth Rail- way and Canal Company, 13 Beavan, 32. And it has been held, on the other hand, that the attorney general can- Opinions, of Chief Justice Ryon. 292 not maintain information on the ground of mere private wrong. Attorney General v. Birmingham & O. Railway Company, 4 Be Gex & S. 190, and 3 MacNaghten & G. 453. Though doubt is thrown upon this point by the later case of Ware v. Eegent's Canal Company, 3 De Gex & J. 212. Be that as it may, the authority of the English chan- cery to restrain corporate violations injuring or tending to injure public welfare, or to defeat public policy, at the suit of the attorney general, as stated by Mr. Brice, is now be- yond controversy. Attorney General v. Johnson, 2 Wilson, 87 ; Attorney General v. Forbes, 2 Mylne & C. 123 ; At- torney General v. Eastern Counties Railway Company, 3 English Railway Cases, 337; Attorney General v. Great Nor. Railway Company, 4 De Gex & S., 75 ; Attorney Gen- eral V. Sheffield Gas Co., 3 De Gex, M. & G., 304; Attor- ney General v. Great ISTorth. Railway Company, 1 Drewry & S. 154; Attorney General v. Mid. Kent Railway Com- pany, 3 Chancery Appeal Cases, 100 ; Attorney General V. Cambridge Gas Co., 4 Chancery Appeal Cases, 7. The groimds on which this jurisdiction rests are ancient ; but the extent of its application has grown rapidly of late years, until a comparatively obscure and insignificant ju- risdiction has become one of great magnitude and public import. The modern exercise of this jurisdiction has kept pace with the multiplication of great corporations in Eng- land. The cause may be found in the language of Lord Eldon already quoted, and the motive, in the language of Lord Cottenham three times repeated: "I have before taken occasion to observe that I thought it the duty of this court to adapt its practice and course of proceedings, as far as possible, to the existing state of society, and to apply its jurisdiction to all those new cases which, from the progress 293 Attorney General v. Railroad Cos. daily making in the affairs of men, must continually arise ; and not, from too strict adherence to forms and rules es- tablished under very different circumstances, decline to administer justice and enforce rights for which there is no other remedy." 1 Mylne & C. 659 ; 4 id. 141, 635. In our day the common law has encountered in England, as in this country, a new power, unknown to its founders, practically too strong for its ordinary private remedies. The growth of great corporations, centers of vast wealth and power, new and potent elements of social influence, overnmning the country with their works and their traffic throughout all England, has been marvelous during the last half century. It is very certain that the country has gained largely by them in commerce and development. But such aggregations of capital and power, outside of public control, are dangerous to public and private right ; and are practically above many public restraints of the common law, and all ordinary remedies of the common law for pri- vate wrongs. Their influence is so large, their capacity of resistance so formidable, their powers of oppression so va- rious, that few private persons could litigate with them; still fewer private persons would litigate with them for the little rights or the little wrongs which go so far to make up the measure of average prosperity of life. It would have been a mockery of justice to have left corporations, count- ing their capital by millions — their lines of railroad by him- dreds, and even sometimes, by thousands of miles — their servants by multitudes^-their customers by the active mem- bers of society — subject only to the common law liabilities and remedies which were adequate protection against turn- pike and hridge and ferry companies, in one view of their relations to the public; and, in another view, to the same liabilities and remedies which were found sufficient for Opinions of Chief Justice Ryan. 294 common carriers who carried passengers by a daily line of stages, and goods by a weekly wagon, or both by a few coasting or inland craft; with capital and influence often less than those of a prosperous village shopkeeper. The common-law remedies, sufficient against these, were, in a great degree, impotent against the great railway compa- nies — always too powerful for private right, often too pow- erful for their own good. It was in these circumstances that the English courts of equity applied their restraining jurisdiction at public or private suit, and laid on these great companies the strong hand of equitable control. And all England had occasion to bless the courage and integrity of her great judges, who used so ably and so freely and so beneficially the equity writ, and held great corporations to strict regard to public and private right. Every person suffering or about to suffer their oppression, by a disre- gard of corporate duty, may have his injunction. When their oppression becomes public, it is the duty of the attor- ney general to apply for the writ on behalf of the public And in this country, where the judicial tone is less certain, it is refreshing to read the bold and true words of which English equity judges do not spare the utterance. One of these corporations having violated an injunction, V. C. Shadwell says: "Considering then their conduct to be at once contumacious and otherwise illegal, to be wrongful against the plaintiff individually, vsTongful against the Queen's subjects at large, and of, I had almost said, scan- dalous example; whatever amount of inconvenience may be the consequence of acting against the defendants on this occasion, I think it right to deal with them according to their merits. The consequence may possibly be to stop the railway. I answer again that it ought to be stopped, for it passes where it does by wrong. The directors of the 295 Attorney General v. Railroad Cos. company and their agents cannot, on this motion, at pres- ent, be committed to prison ; but what can be, shall be done, to repress a daring invasion of public and private rights, maintained in open defiance of law, authority and order. Let a sequestration issue." Attorney General v. Great ^North. Railway Co., 4 De Gex & S. 93. A great example, of authority, in proper cases, for all American judges. And it is not unimportant to observe that this broad Eng- lish jurisdiction was well established and publicly recog- nized at the time of the adoption of our state constitution. It was, however, strenuously denied that it had been adopted in this country or could be upheld by the current of American authorities. We have not found this jurisdiction as directly and suc- cinctly stated in American treatises as in English, although it is fully recognized by the best of our elementary vyriters. Judge Redfield says that "injunctions in courts of equity, to restrain railways from exceeding the powers of their charters, or committing irreparable injury to other persons, natural or artificial, have been common, for a long time, in England and this country." 2 Redfield on Railways, 307. Ifearly all the chapter of his work (ch. 39) from which we quote, is full of instruction on the question, and directly recognizes, especially in the valuable notes, the same juris- diction of courts of equity in this country, both at the suit of private persons for private vnrongs and of the attorney general for public wrongs, as that exercised by the Eng- lish chancery. Later in the chapter he says that the equi- table jurisdiction by injunction goes upon the ground of nuisance. As, indeed, any intrusion upon public right is in the nature of pourpresture. The ancient jurisdiction to restrain nuisance, is perhaps the most direct ground of the modern jurisdiction under consideration. And the former Opinions of Chief Justice Ryan. 296 is fully asserted as an American jurisdiction, as to reme- dies both by private persons and by the attorney general for the public. 2 Story's Eq, sections 920-923. The remedy by injunction, at the suit of private parties, for private wrong, is recognized and enforced in a great number of American cases. Gardner v. Newburgh, 2 Johns. Ch. 162 ; Belknap v. BelJmap, 2 Johns. Oh. 463 ; Couch v. Turnpike Co., 4 Johns. Oh. 26 ; Jerome v. Eoss, 7 Johns. Oh. 315; Osborn v. United States Bank, 7 Wheat 738; BonapaTte v. Oamden & A. E. E. Co., Baldwin, 205 ; Mc- Arthur v. Canal Co., 5 Ohio, 139 ; Eoss v. Page, 6 Ohio, 166 ; Mohawk Bridge Co. v. Utica & S. E. E. Co., 6 Paige, 554; Delaware & Md. E. E. Co. v. Stemp, 8 Gill & J. 479 ; Eowe V. Granite Bridge Co., 21 Pick. 344; Browning v. Camden & W. E. E. Co., 3 Green, 47 ; Jordan v. Phil., W. & B. E. E. Co., 3 Wharton, 502 ; ISTewburyport T. Co. V. Eastern E. E. Co., 23 Pick. 326; Bigelow v. Hartford Bridge Co., 14 Conn. 565; O'Brien v. l^orwich & Wor. E. E. Co., 17 Conn. 372 ; Moorhead v. Little Miami E. E. Co., 17 Ohio, 340 ; Kean v. Central E. E. Co., 1 Stockton, 401 ; ISTewhall v. Galena & 0. U. E. E. Co., 14 111. 273 ; Boston & L. E. E. Co. v. Salem & L. E. E. Co., 2 Gray, 1 ; Sanford v. E. E. Co., 24 Pa. St. 378 ; Bell v. Ohio & P. E. E. Co., 25 Pa. St. 161; Water Comm. v. Hudson, 2 Beasly, 420. There are more cases to the same effect ; an unbroken line of decisions, of the most respectable authority, covering some half a century ; most of them going on excess or abuse of corporate franchise, and all fully sustaining equitable jurisdiction in case of private wrong. They seem to estab- lish the jurisdiction of courts of equity in this country, as conclusively as it is established in England, of private suits 297 Attorney General v. Railroad Cos, to restrain private wrong arising from excess or abuse of power by corporations. In such cases, public wrong may be considered only as an aggregation of private wrongs. And, the jurisdiction ■once established to enjoin private wrong, in each case, at the suit of the person wronged, it is almost a logical neces- sity to admit the other branch of the jurisdiction, to enjoin, at the suit of the state, such a general wrong, rfommon to the whole public, as interests the state, and could be reme- died by private persons by a vast multitude of suits only, burthensome to each and impracticable for very number; more conveniently, effectively and properly represented by the attorney general as parens patrice. But jurisdiction of informations of this nature has sometimes been denied here, courts of equity in this country, singularly enough, Tjeing sometimes more timid to control corporate power, and less willing to protect the public against corporate •abuse, than the English chancery. In both branches of the jurisdiction, it proceeds as for quasi nuisance; and it is difficult to understand why the jurisdiction should be as- serted as to private nuisance and denied as to public nui- sance; why, for the same cause, individuals should have a remedy denied to the aggregate of individuals, called the public. But, as we remarked before, in this regard the judicial voice in America is less certain in tone than in England. We should be willing to follow the English rule, in this state, unless there were a preponderance of Ameri- can authority against it. But fortunately we find this wholesome jurisdiction sustained here by the great weight of authority, and, with modern experience, we deem it only a question of time when it must be universally as- Berted and exercised. Opinions of Chief Justice, Ryan. 298 In Bigelow v. Hartford Bridge Oo,, supra, Storrs, J., takes occasion to say : "Indeed it is upon the ground of par- ticular injury to the plaintiff, distinct from what he suffers in common with the rest of the public, that all applica- tions for injunctions against what is a puhlic nuisance are sustained. And there is no good reason why, apart from such special injury, relief should be granted in this mode at the instance of a particular individual. Courts of equity, in this respect, proceed on the principle which prevails in courts of law, that an action will not lie in respect of a pub- lic nuisance, unless the plaintiff has sustained a particular damage from it, and one not common to the public gener- ally. To preserve and enforce the rights of persons as indi- viduals, and not as members of the community at large, is the very object of all suits, both at law and in equity. The remedies which the law provides in cases where the rights of the public are affected, are ample and appropriate ; and to them recourse should be had when such rights are vio- lated. The courts of equity in England will indeed sus- tain informations, not by individuals, but at the suit of the attorney general or the proper crown officer, for the pur- pose of abating public nuisances and what are termed pour- prestures. That mode of proceeding has been, however, hitherto unlaiown here, and whether it would be tolerated in any case it is unnecessary to consider." 14 Conn. 578. This is not a very accurate statement of the jurisdic- tion, which does not go to abate, but to restrain, which is the very ground of it, as distinct from legal remedies. The court holds the jurisdiction in cases of private nuisance and of public nuisance inflicting particular injury, at the suit of an individual, and questions it at the suit of the state. It is not easy to comprehend why the remedy should avail against the less evil, and not against the greater ; why 299 Attorney General v. Railroad Cos. equity should interpose to restrain wliat affects one person only, and refuse its protection against what affects all per- sons ; in the case of a public nuisance, restrain it at the suit of one whom it especially aggrieves, and refuse to do so for the public whom it equally aggrieves. The reason as- signed signally fails ; for remedies at law reach private as well as public nuisances. If, in saying that the remedy by information in behalf of the state was hitherto unknown there, the court meant in Connecticut, it was probably correct; if in the United States, it was certainly mistaken. Bigelow V. The Hartford Bridge Oo. was decided in 1842. As early as 1834, the jurisdiction was entertained and asserted by the court of chancery of itTew Jersey, in Attorney General v. itiTew Jersey E. E. Co., 2 Green, 136. The chancellor says : "It would seem, at first, incongruous and improper for this court to interfere in cases of public nuisance. The very fact that nuisances of that character are offenses against the commimity, and necessarily savor of criminality in a greater or less degree, would seem to distinguish them as matters not proper to be dealt with by this court. But the jurisdiction of chancery, to a certain extent, in cases of public nuisance, appears to be admitted^ although it has been very rarely exercised. It is asserted by Lord Hardwicke in Baines v. Baker, Ambler, 159, 3 Atkyns, Y50, and is considered as existing by Lord Eldon, in the case of the Attorney General v. Cleaver, 18 Vesey, 211. He speaks with caution on the subject, as though it were new but not disputed ground. Chancellor Kent, in Attorney General v. IJtica Ins. Co., 2 Johns. Ch. 371, ap- pears rather to question the jurisdiction ; considering that the cases of pourpresture which have often occurred in the Court of Excheqxier on the equity side, differ in some im- Opinions of Chief Justice R^an. 300 portant particulars from a strict case of public nuisance. He seems to think that the case of Baines v. Baker, be- fore Lord Hardwicke, has been misunderstood. It was a bill filed by one individual against another, to stay build- ing an hospital for people infected with the smallpox, very near the homes of several tenants of the plaintiff. The court said, if it were a nuisance at all, it was a public nuisance ; that bills of that sort were founded on nuisances at common law, and if a public nuisance it should be an information in the name of the attorney general ; and then it would be for his consideration whether he would file such' information or not. Chancellor Kent throws out a doubt whether it was not meant that the attorney general might file an information in the King's Bench. Such has not been held to be the meaning by English lawyers or courts, and it appears to me their construction is the right one." This is feeble language compared with the English cases cited. It is certainly not true in our day, that the English courts rarely exercise the jurisdiction; and the caution which the chancellor attributes to Lord Eldon has long since passed out of the court. It may be safely assumed that the chancellor of Xew Jersey who asserted the juris- diction then, would be less timid in doing so now. But in that day he adds : "The very fact, however, that there may be a doubt on the subject by intelligent jurists, should be sufficient to induce caution on the part of this court In cases of public nuisance there is an undisputed jurisdic- tion in the common-law courts by indictment, and a court of equity ought not to interfere in a case of misdemeanor, when the object sought can be as well attained in the ordi- nary tribunals." And so, asserting the jurisdiction, he de- nied the motion. In 1836, notwithstanding the cases presently noticed in 301 Attorney General v.. Railroad Cos. 2 Johns., Gh; and Hopkins, Chancellor Walworth asserted and enforced the jurisdiction in New York. The attor- ney general filed an information to restrain the defendant corporation, claiming a right so to do, from tapping a canal. The chancellor sustained the jurisdiction and the injunction, saying: "This court has jurisdiction to restrain any pourpresture, or unauthorized appropriation of public property to a private use, which may amount to a public nuisance, or may injuriously affect or endanger the public interest. And when the officers entrusted with the protec- tion of such public interests, acting under. the sanction of their official oaths, believe the intended encroachment will prove injurious to the navigation of the canals, private- persons should not be permitted to interfere with the wa- ters or embankments of the canals, contrary to law, upon a mere opinion, although under the sanction of an oath, that the intended trespass upon the public rights would not be an injury to the public." Attorney General v. The Go- hoes Go., 6 Paige, 133. In emergency, the ISTew York chancery overlooked Ghancellor Kent's coy doubts and nice subtleties, and assumed the jurisdiction which he had in- volved in such learned obscurity. In Georgetown v. Alexandria Ganal Go., 12 Peters, 91, which was a biU to restrain the defendants from erecting a nuisance under their charter, decided in 1838, the supreme court of the United States thus state the jurisdiction: "Were it even admitted that the canal company had ex- ceeded the authority under which they are acting, never- theless, as the Potomac Kiver is a navigable stream, a part of the /ws publicum, any obstruction to its navigation . would, upon the most established principleSj be what is declared by law to be a fmblic nuisance. A public, nuisance being, the subject of criminal jurisdiction, the: ordinary and: Opinions of Chief Justice Ryan, 302 regular proceeding at law is by indictment or information, by whicli the nuisance may be abated, and the person who caused it may be punished. If any particular individual may have sustained special damage from the erection of it, he may maintain a private action for such special damage, because to that extent he has suffered beyond his portion of injury in common with the community at large. Besides this remedy at law, it is now settled that a court of equity may take jurisdiction in cases of public nuisance, by an information filed by the attorney general. This jurisdic- tion seems to have been acted on with great caution and hesitancy. Thus, it is said by the chancellor in 18 Vesey, 217, that the instances of the interposition of the court were confined and rare. He referred, as to the principle author- ity on the subject, to what had been done in the court of ex- chequer, upon the discussion of the right of the attorney general, by some species of information, to seek, on the equitable side of the court, relief as to nuisances and pre- ventive relief. Chancellor Kent, in 2 Johns. Ch. 382, re- marks that the equity jurisdiction in cases of public nui- sance, in the only cases in which it had been exercised, that is, in cases of encroachment on the king's soil, had lain dor- mant for a century and a half; that is, from Charles I. down to the year 1795. Yet the jurisdiction has been fin- ally sustained, upon the principle that equity can give more adequate and complete relief than can be obtained at law. Whilst, therefore, it is admitted by all, that it is one of delicacy, and accordingly the instances of its exercise are rare, yet it may be exercised in those cases in which there is imminent danger of irreparable mischief before the tar- diness of the law could reach it." These views were adopted by the United States circuit ■court of Michigan, in the same year, on a bill for injunc- 303 Aiiomey General v. Railroad Cos. tion against a nuisance. The court asserts both branches of the jurisdiction in equity, and says: "'No individual has a right to prosecute for a public nuisance, in his own name or at his own instance, in this form of action, unless the nuisance be irreparably injurious to himself. The United States, through their law officer, might well ask to have this nuisance, if it shall be one, abated ; but the special and private injury to an individual is the only ground on which he can ask relief against it." Spooner v. McOonnell, 1 McLean, 337. And the same views were again recognized and affirmed by the supreme court of the United States, in 1851, in Pennsylvania v. Wheeling Bridge Co., 13 Howard 518. The same question came before the supreme court of Pennsylvania in 1854, at the suit of the attorney general against a railroad company to restrain them from filling up a canal in the construction of their road, under their franchise. The court says : "The boldness of this act seems almost like a studied test of the vigilance of the canal commissioners, and of the effi- ciency of the remedies which the state has provided for the prevention of injuries. It is hoped that the equity remedy, being somewhat unusual and peremptory in its character, will not be applied to an act which does so little injury. But vsTits of capias, replevin, foreign and domestic attach- ment, estrepement, prohibition and habeas corpus, are quite as efficient and peremptory in their power, and most of them more easily obtained, and yet they are common law writs. And estrepement applies to many of the same cases as injunction, and may issue without bail. And so it was once with the prohibition. In most of the cases, moreover, in which we hear this objection to the injunction, the com- mon law allows more speedy remedy, for it permits the in- Opinions of Chief Justice Ryan. 304 jured party to redress himself by driving ofP the -wrong- doer. "The argument that there is no irreparable damage would not be so often used by wrongdoers, if they would take the trouble to observe that the word "irreparable" is a very unhappily chosen one, used in expressing the rule that an injunction may issue to prevent wrongs of a re- peated and continuing character, or which occasion dam- ages which are estimable only by conjecture and not by any accurate standard. 3 Eailway Cases, 106, 345; 4 id., 186; 1 Sim. & Stuart, 607; 3 Atkyns, 21; 3 Johns. Ch. 501 ; 16 Pick. 525 ; 3 Wharton, 513. As this argument is generally presented, it seems to be supposed that in- junctions can apply only to very great injuries; and it would follow that he who has not much property to be in- jured, cannot have this protection for the little he has. "Besides this, where the right invaded is secured by stat- ute or by contract, there is generally no question of the amount of damage, but simply of the right. He who grants a right cannot take it away, even on giving a better, without a new agreement for the purpose. 19 Eng. L. & E. 287; 16 Pick. 525; 4 Simons, 13; 8 Wend. 99; 8 Paige, 351 ; 2 Swanston, 253. And such was our decision in the late case of the Western Saving Eund Co. v. Phila- delphia. "And so it is where the public rights are invaded. In the case of the Attorney General v. The Cohoes Co., 6 Paige, 133, there was an offer to tap the state canal for a mill purpose, and it was stopped by injunction, without any regard to evidence tending to disprove damage. And in Downing v. McFadden, 18 State R. 334, we justified the keepers of the public works in abating a house that en- 305 . Attorney General v. Railroad Cos. croaclied upon the entankment of a railroad, tihoTigli a jury had found that it did no injury. "And when railroad companies or individuals exceed their statutory powers in dealing with other people's prop- erty, no question of damage is raised when an injunction is applied for, but simply one of the invasion of a right. 1 Eailway Oases, 1-35 ; 4 Myhie & 0., 254. And railway companies will not be allowed to exercise their discretion capriciously (1 Eailway Cases, 288), but the court will supervise their discretion, as in seeing that they shall not take more land than is needed, nor take any land merely in order to get earth for embankments (1 id. 5Y6 ; 4 Mylne & 0. 116) ; and that they do not unnecessarily affect a mill-race by too small an arch over it. 1 Eussell & M.. 181 ; 2 Eailway Cases, 280. "Eailway companies must stand upon a strict construc- tion of their chartered privileges. 21 State. E. 22 ; 9- Beavan, 391; 2 Mann & Granger, 134; 7 id. 253; 1 Eail- way Cases, 576; 3 id. 563; 21 Eng. L. & E. 620. With the immense powers that are freely and loosely given to them, this much restraint is essential to the protection of private rights. 1 Eailway Cases, 154, 504, 636; 4 Mylne & C. 120. "If they step one inch beyond their chartered privileges to the prejudice of others or of the stockholders, or offer to do any act without the prescribed preliminary steps,- they are liable to be enjoined, irrespective of the amount of damage." Commonwealth v. Eailway Co., 24 Pa. St. 159. There is no doubt or hesitation here. Time and experi- ence had done their work; as the court says, referring to- the English cases : "Such at least is the practice elsewhere, 20 Opinions of Chief Justice Ryan. 306 and it may be well for us to learn from the experience of others." And the same doctrine is reaffirmed by the court, in 1867, Sparhawk v. IT. P. Eailway Co., 54 Pa. St. 401. The question came again before the New Jersey chan- cery and court of errors in 1853, upon information and bill to restrain a corporation from exercising their fran- chise by the erection of a public nuisance. The chancellor refused a preliminary injunction, but briefly and clearly asserted the jurisdiction. He says: "I have no doubt of the power of the court to interpose in this case by ru junc- tion; nor of the propriety of its exercising that peculiar jurisdiction, if, as alleged, the defendants, under and by virtue of the power of the legislature, conferred upon the Patterson and Hudson River Railroad Company, to bridge the river Passaic, are obstructing the navigation of that river, in violation of the provisions of the act from which they derive their authority." The court of errors reversed the order of the chancellor and granted the injunction, stating the doctrine in the lan- guage of Story's Equity. " 'In regard to public nuisances,' says Justice Story, 'the jurisdiction of courts of equity seems to be of very ancient date, and has been distinctly traced back to the reign of Queen Elizabeth. The juris- diction is applicable not only to public nuisances strictly so called, but also to pourprestures upon public rights and property, as public rivers, etc' " Att'y Gen. v. Hudson Tliver R. R. Co., 1 Stockton, 526. And again in 1855, upon an information and bill to re- .-strain abuse of corporate franchise. Chancellor Halsted .had allowed a preliminary injunction, in an opinion in ■which, after his few authoritative words in the case last cited, he tacitly assumes the jurisdiction. A motion for attachment for violation of the injunction was heard before 307 AJtorne^ General v. Railroad Cos. Green, 0. J., sitting for Chancellor Williamson, who had succeeded Chancellor Halsted. and had been of counsel in the cause. Chief Justice Green reviews the merits of the case at great length, without a word said of jurisdiction, and sustains the information on the merits. He gives a second opinion on the merits, upon exceptions taken, with the same signiiicant silence. Elmer, J., delivers the judg- ment of the court of errors on appeal, at some length, affirm- ing the orders of the chancery, with the same tacit recog- nition of the jurisdiction, as one not to be doubted. An eloquent silence, following twenty-one years after the fal- tering opinion in Att'y Gen. v. N. J. E. K. Co., supra. We can see nothing in conflict with these cases in the in- termediate case of Att'y Gen. ■;;. Paterson, 1 Stockton, 624, cited for the defendants, which is indeed a confirmation of the jurisdiction. In 1865, in Pennsylvania, one corpora- tion filed a bill against another to enforce the charter obli- gations of the defendant. The court holds that, suffering no special injury, the plaintiff could not maintain the bill; and thus, after much similar discussion, assigns the reason of the judgment; "It is plain, therefore, that a private in- dividual may not, in the absence of a special right or spe- cial authority,^ vindicate the public for breach of duties •owing to her alone. ISTobody will doubt that he may enforce against public corporations, contracts and duties which they ought to perform towards himself ; and, in doing this, some- times the public interests are subserved, and this is all right. But it is his special interest that gives him the right to act. This might be enough for this case ; but it may not be out of place to add that we have no doubt but the remedy by a bill for an injunction, sued out on the part of the common- wealth, by the attorney general, would lie against a com- pany to compel them to observe their charter obligations. Opinions of Chief Justice, R^an. 308 It would in this case be a substitute for a mandamus, and come within the power given to courts of equity to control corporations other than municipal." Buck Mountain 0. Co. V. Lehigh Coal & IST. Co., 50 Pa. St. 91. The same question came before the supreme court of Missouri, in 1873, upon an information in equity against a municipal corporation. Shepley, S. J., in delivering the opinion of the court, reviews the cases at great length, and sustains the jurisdiction. This is his general conclusion : "It seems to me that, both on principle and authority, this proceeding is maintainable ; and that, while in case of priv- ate corporations, the courts of this country, vnll sustain the conclusions arrived at in 2 Johns. Ch. 3Tl, in 103 Mass. 138, and 104 Mass. 239, that the writ of quo war- ranto affords ample and efficient remedy for violation of its charter or misuse or abuse of its powers, and that there- fore this form of proceeding will not lie, the powers of the state, through its proper legal officers, to restrain public corporations from a violation of the law will be sustained."' State V. Saline Co., 61 Mo. 350. There is a strong presumption that the term private cor- porations, as here used, is intended to designate private trading corporations; and the term, public corporations, to include all quasi public corporations, whose relations with the public involve public interests and public ques- tions. This is indicated by the cases in Massachusetts on which the distinction is rested, and the language of the court in those cases ; and seems to follow from many other cases cited and commented on, which certainly do not con- fine the remedy to private corporations, in the sense in which these defendants are such. And, indeed, it is not easy to see how a private trading corporation could cause public injury by a mere abuse or excess of franchise, or S09 Attorney General v. Railroad Cos. otherwise than as a natural person might. This construc- tion of Judge Shepley's language is confirmed by the addi- tional opinion of Judge Bliss, who discusses the question at some length, and recognizes no such qualification of the jurisdiction. He says: "How much more adequate the remedy that prevents the doing of any legal wrong, than those that are merely puni- tive, or that compel every tax payer to prosecute." "I am aware that the jurisdiction of a court of equity, by injunc- tion, even to restrict a public nuisance, has been denied in Massachusetts under their statute (Haie v. Cushman, 6 Mete. 425), but it is established in England, and generally admitted in the United States ; and the rule as to the proper plaintiff is, I believe, universal." And this is further confirmed by the dissenting opinion of Wagner, J. He objects to the jurisdiction assumed, as injuriously affecting the rights of stockholders, which must mean those of quasi public corporations. And we feel safe in assuming that, so far as it is necessary here, this decision is in accord with the others cited on this point. In our investigations of this question, we have catefuUy examined all the authorities cited at the bar and many others. It is probable that there may be others, which have escaped our attention. But we think we have sufficiently shown that the jurisdiction has long been asserted and is very generally recognized in the United States. And, be- fore leaving this review of the authorities sustaining the jurisdiction, we wish to quote the terse and comprehensive statement of its scope, given by the supreme court of Penn- sylvania. "This remedy extends to all acts that are con- trary to law, and prejudicial to the interests of the com- munity, and for which there is no adequate remedy at law." Kerr v. Trego, 47 Pa. St. 292. Opinions of Chief Justice R^an. 310 Two cases in Massa'chusetts were cited for the defend- ants, as denying the jurisdiction. They do not seem to us to do so. The Attorney General v. Salem, 103 Mass. 138, was an information in the nature of quo warranto against a muni- cipal corporation for failure of duty. The court holds that the remedy does not lie in the case, for reasons not pertinent here. It was, perhaps, a case for mandamus. Having so decided the case, Morton, J., adds : "But the plaintiffs urge that this proceeding may be treated as a proceeding for general relief on the equity side of the court. If the necessary aimendments were made to change it into an information or a bill in equity, we are of opinion that it still could not be sustained. Whether, in this state, in the absence of any express grant of jurisdic- tion, the attorney general can bring a bill in equity to re- dress any public wrong or grievance, need not be decided. It is clear that such a bill cannot be sustained for a priv- ate wrong. In this case, the grievance complained of is not a public wrong, in which every subject of the state is interested; and therefore cannot be redressed by a public prosecution or proceeding." This was only a refusal to pass upon the question, be- cause the question was not before the court. The refusal certainly implies a doubt, very much such as that suggested by the supreme court of Connecticut. But the doubts even of such respectable tribunals cannot weigh against so much solid authority. The Attorney General v. Tudor Ice Co., 104 Mass. 239, was an information on the relation of a private person, to restrain the defendant from trading outside of its fran- chise. The court says: "The Tudor Ice Co. is a private trading corporation. It is not in any sense a trustee for 311 Attorney General v. Railroad Cos, public purposes. The acts complained of are not shown to have injured or endangered any rights of the public, or of any individual or other corporation, and cannot, un- der any legal construction, be held to constitute a nuisance." "Ho case is therefore made, upon which, according to the principle of equity jurisprudence and the practice of this court, an injunction should be issued upon an information in chancery." This disposes of the ease. But the court proceeds to quote, -with implied approbation, Att'y Gen. v. Utica Ins. Co., infraj and Att'y Gen. v. Eeynolds, 1 Eq. C. Abr. 131 ; and to make this comment on later English cases: "The modern English cases, cited in support of the information, were of suits against public bodies or officers exceeding the powers conferred upon them by law, or against corpor- ations vested with the power of em.inent domain, and doing acts which were deemed inconsistent with the rights of the public." Without stopping to consider the accuracy of this com- ment, we content ourselves with the remark that no doubt is implied of the jurisdiction of such informations as those now before this court. After some particular comments on certain English cases, the court proceeds to state the position of Massachu- setts on this question, thus : "However that may be, by our statutes the general equity jurisdiction of this court is lim- ited to cases where there is no plain, adequate and complete remedy at law, as well in suits by the commonwealth as those brought by private persons. Gen. Stat. ch. 113, sec. 2." This shows that the court seems to think their juris- diction, in such cases, crippled by statute. And yet that court has, not only in the cases above cited sustained priv- Opinions of Chief Justice R^an. 312 ate suits within the jurisdiction in question, but appears to have acted on the public branch of that jurisdiction in several cases. It is true that they are cases of nuisance, but they seem to us to be within the broad principles laid down in England and this country. Att'y Gen. v. Boston Wharf Co., 12 Gray, 553 ; Dist. Att'y v. Lynn & B. K. E. Co., 16 Gray, 242 ; Commonwealth v. Smith, it) Allen, 448. The case in 16 Gray appears to us fully to support the ju- risdiction of equity to restrain corporations from excess or abuse of franchise. Other cases outside of 'Eew Tork were cited against the jurisdiction but on examination we cannot consider any of them as having bearing and weight upon the question. But the cases in itfew Tork require consideration. In that state the authorities are conflicting, and do not appear to us to rest on distinct and settled principle. We have already cited several cases decided by Chancellor Kent and other judges, sustaining the private remedy in ■ equity against nuisance, and one case sustaining the public remedy. And the last case which we have seen in the court of appeals sustains the public remedy in equity. People V. Vanderbilt, 26 E". Y. 287. The jurisdiction, as applied to abuse or excess of corpor- ate franchise, is denied in the last case we have seen in that court on the precise question. People v. Albany & Vt. E. E. Co., 24 K Y. 261. We have been referred to several cases, in other courts of that state, for and against the jurisdiction. For it are Davis V. Mayor, etc., 2 Duer; 663 ; People v. Mayor, etc., 32 Barb., 102 ; People v. Albany & Vt. E. E. Co., 37 Barb. 216, reversed in 24 K Y. 261. Against it are dicta of Vice Chancellor McCoun in Verplanck v. Mercantile Ins. Co., 1 Edwards, 88, and of Strong, J., in Smith v. Lock- 313 Attorney General v. Railroad Cos. •wood, 13 Barb. 219; People v. Miner, 2 Lansing, 407 and People v. Albany & Vt. E. E.. Co., supra. We must accept this last case as authoritative on the pre- cise point, for the present, in I^ew York ; though in view of ail the authorities, it is difficult, at this day, to reconcile it in principle with the later case of People v. Vanderbilt. The latter case goes on the ground of pourpresture, which is a special kind of public nuisance. The common-law de- fines a nuisance as anything unlawful, which works hurt, inconvenience or damage ; and a pdurpresture, formerly an intrusion on the King's soil, is now defined as an encroach- ment upon public rights or property. It is easy to under- stand how the courts have, of late, applied both terms to un- lawful excess or abuse of corporate franchise, as an en- croachment upon and a hurt to public rights. But it is difficult to appreciate how the courts of 'New York continue to adhere to the physical meaning of pourpresture, in the light of all the modern authorities, and to relieve the pub- lic and individuals against material nuisance, atid refuse to relieve the state against the most serious form of pour- presture, only because it is immaterial. And we must be permitted to remark that the opinion of the court in 24 JSTew York is destitute of authority cited to uphold it ; rests on the unsupported dictum of the court ; and, however respectable in itself, and for the authority of the court which utters it, does not compare favorably with the able and learned opinions of Duer, J., in Davis ■;;. Mayor, etc., and of Hogeboom, J., in People ■;;. Mayor, etc. In the face of all the authorities, and apparently ignoring them, it disposes of the question of jurisdiction in this brief and bare sentence: "Any remedy which the public may have for a breach or neglect of duty imposed by the Eailroad Act, must be by mandamus, quo warranto or in- Opinions of Chief Justice Ryan. 314 dictment; and the performance of such duty cannot be specifically enforced in equity at the suit of the attorney general." Outside of JSTew York, this opinion can weigh little against the current of authority. We are led to believe that the singular and erratic course of the ISTew York courts on this subject is somewhat attrib- utable to the case of Attorney General v. Utica Ins. Co., 2 Johns. Oh., 3Yl, in 181Y, followed in 1825 by Attorney General v. Bank of Niagara, Hopkins, 354. Whatever degree of deference might be due, in this day, to the decision of so illustrious an equity judge as Ohancel- lor Kent, made at so early a day, we are unable to regard Attorney General v. Utica Ins. Co., as authority against the- jurisdiction under consideration. It was an information in equity by the attorney general for an injunction against the corporation to restrain it from usurping banking pow- ers. The court held that no injury to the public or private persons was averred or apparent ; which, in that day, if not now, would be adequate ground for dismissing the informa- tion. But the court goes on to discuss the equitable juris- diction of nuisance and kindred cases, and incidentally de- nies the authority of equity to enjoin excess of corporate franchise ; though the chancellor leaves room for an infer- ence that he might have held otherwise, had a public evil been averred or apparent. It must be borne in mind that this Avas long before the era of great corporations in this country, and that the modern practice of courts of equity in England and this country, of applying the equitable remedy against nuisance to abuse of corporate franchise, was nearly or quite unknown. And the chancellor, passing from the single point of his decision, brings all his great learning to bear on all collateral questions, in such variety and at such length, that it is not altogether easy to discover 315 Attorney General v. Railroad Cos^ what his precise views were on many subjects discussed. We adopt the view of Chancellor Vroom, supra, that Chan- cellor Kent only "appears rather to question the jurisdic- tion." Ee that as it may, it doubtless misled many, as V. C. McCoun, in Verplanck v. Mercantile Ins. Co., to think that the decision was against the jurisdiction under any circumstances. And with all our admiration of his learn- ing and deference for his authority and veneration for his judicial qualities, we cannot help feeling that, as in the case of the exercise of the right of eminent domain, the great chancellor misled the courts of l^ew York into error on this question also. In the one case, it took them some quarter of a century to return to sound principles. In the other, they have not yet done so. So mischievous is the sanction of a great name to error. It is hardly necessary to add that we sustain the juris- diction to enjoin a corporation from abuse or excess of fran- chise, or other violation of public law to public detriment, on information in equity, filed ex officio by the attorney general. It will be perceived that we do not found our jurisdiction on ch. 148, sees. 13 and 14, E. S. We quite agree with the counsel for the defendants, that these sections confer no jurisdiction on this court. Whether they operate to limit the jurisdiction of the circuit courts, or are only de- claratory of the jurisdiction which we hold to exist outside of them, we need not consider here. It is certain that they do not limit the jurisdiction of this court, if it be competent for the legislature to limit it. The jurisdiction which we claim for this court puts the writ of injunction to a prerogative use. And we are strongly inclined to think that our views of our jurisdiction of these informations, follow almost logically from our Opinions of Chief Justice R^an. 316 views of our jurisdiction pf the writ as a quasi prerogative writ. And we have illy expressed ourselves, and illy ap- plied the authorities quoted, if we have not already made it apparent that we consider this jurisdiction, in this court, a necessary and most salutary one for the preservation of public right and public authority. It was objected to the exercise of the jurisdiction in these cases, that it would deprive the defendants of the right of trial by jury, secured by sec. 5, art. 1 of the state conistitu- tion, extending to all cases at law. It has been held by this court that this constitutional guaranty does not extend to cases in equity, including such cases of legal right as, by the practice of courts of equity, had become of equitable cognizance at the time of the adoption of the constitution. Stilwell v. Kellogg, 14 Wis. 461, affirmed in several late cases cited in Vilas & Bryant's notes. The constitution was adopted in 1848. And the English cases prior to the time are authority to show this equitable jurisdiction. For it was fourteen years later that the court of chancery was authorized by act of parliament to deter- mine all questions of law and fact, with one qualified ex- ception, 25 and 26 Vict., ch. 42, sec. 1. And the English and American cases cited show that this jurisdiction was an established equitable jurisdiction at the time the consti- tution was adopted. But were this otherwise, we cannot perceive of what trial by jury, of what right, these in- formations can deprive the defendants. Their whole de- fense rests in questions of law. There is no fact for them to traverse, except their violation of the law. And their de- nial of this, if indeed they are to be taken as denying it, is manifestly formal only. And, if it were a hona fide denial, these proceedings would not deprive them of any 317 Attorney General v. Railroad Cos. legal right triable by jiary. If the law be valid, they are bound to obey it. If they are obeying it, the injunction cannot harm them or deprive them of any trial. If they are not obeying it, there is nothing involved here to be tried. The objection is specious, but is only specious. The question is not here, and we shall not consider it, whether, under our practice, we could take equitable juris- diction of a case in which a legal right is involved triable by jury, and provide for a trial of that right by a jury, so as to satisfy the provisions of the constitution. It was also urgently pressed upon us that, all other ques- tions apart, no equitable proceedings w6uld lie to enforce chapter 273 of 1874, because it furnishes its own remedies by providing penalties against 'the corporations violating it. We do not consider the rule on which the defendants rely, applicable to cases of this character, and should prob- ably hold so in these cases, if the fact were as stated. But we shall not discuss the question, because it is not here. These informations go to enforce the rates fixed by the stat- ute itself, not rates fixed by the commissioners. It does not appear that the commissioners have fixed any rates or classi- fied any article of freight. And for violations of the rates fixed by the act itself, no penalties are provided against the corporations ; certain civil remedies are given, but no pen- alty. There are penalties against agents ; but the remedy against the corporations is a distinct thing from the liability of their servants, as individuals, for violations of public law, mandatory upon them as private citizens. This is, perhaps, as appropriate a place as we may find to notice an objection taken to the informations. It is said that they aver no specific injury to the. public. Such an injury, in such a case, is a conclusion of fact, rather than a fact. The injury is a logical sequence of the facts. The Opinions of Chief Justice R^on. 318 acta of the defendants charged give the jurisdiction ; and it is for the court to judge of the consequent evil. Many of the cases cited import, and some of them express, the rale governing such cases. It is not the averment of the pleader, but the nature of the acts pleaded, which is mate- rial on the question of public injury. The conscience of the court must be satisfied ; and it may be satisfied or not, with or without averment. If an information should aver public mischief, where the court could see that there was none, the averment would go for nothing. So, without averment, it suffices that the court can see the public injury. It was hardly questioned that, in these cases, a public in- jury is apparent in the acts charged against these defend- ants. Directly or indirectly, this injury reaches every in- habitant of the state, and affects the whole state in its cor- porate capacity. It was, indeed, confidently foretold by the counsel for the defendants, that obedience to the law would work a still greater public injury. Upon that it is not for us to speculate. And if we could, we cannot sit here to offset a speculative injury arising from obedience of law, against a positive injury arising from disobedience of law. In these days of self-judging insubordination, it would ill become this court to set so bad an example of compromise between right and wrong. We cannot look to the conse- quences of legislation. Let the legislature see to that We have no discretion. We, at least, must obey the law. We can only see the direct public injury. And the acts charged satisfy the conscience of the court of the public in- jury. If the acts be illegal, that is sufficient. Whether an information of this character would lie, as ■suggested by Mr. Brice, even though no definite injury had been done, or was likely to be done, to the public, we are not called upon to decide in these cases, III. These questions of jurisdiction settled, still leave 319 Attorney General v. Railroad Cos. some preliminary matters to be considered, before we can reacb the provisions of chapter 273, of 1874, which the informations charge that defendants disregard and violate. The act has many provisions not material in these causes. And this is a convenient place to state briefly the provisions which are material to any consideration involved here. The act classifies all the railroads of the state ; fixes differ- ent maximum rates for passengers for each class of roads ; •classifies certain specified articles of freight; fixes maxi- mum rates for each of the classes of freight, differently af- fecting different classes of roads; provides civil remedies against the companies, and penalties against their serv- ants, for taking greater rates than those fixed by the act; provides for railroad commissioners, and gives them au- thority to classify articles of freight not classified by the act, and to reduce rates of freight; and provides civil remedies and penalties against the companies for taking greater rates than those fixed by the commissioners. It does not appear that the commissioners have acted in any way under the act ; and the question of the validity of their powers, is therefore, not here. The atot was approved by the governor, March 11. It was contended for the defendants that it was repealed by chapters 292 and 341 of the same session; both approved by the governor March 12. We have informed ourselves that the three acts passed the legislature in the same order in which they were approved. This is a question of constructive repeal. In Attorney Oeneral v. Brown, 1 Wis. 513, this court adopted the uni- form rule governing such cases. If there be two affirma- tive statutes upon the same subject, one dops not repeal the other, if both may consist together ; and we ought to seek for such a construction as will reconcile them together. Section 2 of chapter 292, in which the repeal by that act Opinions of Chief Justice Ryan. 320 is claimed, amends sec. 55 of the general railroad act of 1872. The section amended provides that existing com- panies shall have all the powers and be subject to all the duties prescribed by that act. The amendmeM provides that they shall have all the powers of the general railroad act and of their charters. It seems to us that the inten- tion of the amendment is very manifest; and it is a ques- tion of legislative intention. The amendment was prob- ably adopted ex abundanii cautela, to remove any possible doubt that the franchises of the general act had super- seded the franchises of existing charters. And the amend- ment is not a grant of powers, but a mere confirmation of powers previously granted. It left the companies where it found them. And if chapter 273 be a valid al- teration of railroad charters previously existing, it is no more repealed by sec. 2 of chapter 292, than any other previous amendment of such charters. The powers of rail- road companies confirmed by this section, are those powers of their charters, controlled by all amendments of them and other public acts validly affecting them, as they existed when the section was passed. It is not difficult to make chapters 273 and 292 stand together. Chapter 341 is an act in relation to railroads with many provisions for their general government, perhaps all rest- ing in the police power of the state. Amongst the rest, sec. 9, under which the repeal is claimed, provides a penalty against any railroad company taking more than a reason- able rate of compensation. It was claimed that this pro- vision licenses a reasonable rate of compensation in all cases, and therefore repeals the maximum rates, specifi- cally fixed by chapter 273. There are three answers to this : First. Chapter 273 limits the companies to the maximum rates provided, but does not expressly license them to exact 321 Attorney General v. Railroad Cos. those full rates. And it might well happen, and the leg- islature may have so considered, that rates then reasonable might, in change of circumstances, become unreasonable; and that these companies continuing to charge the full maximum rates might be charging unreasonable rates. Secondly. The act provides no fixed, statutory rates of freight for class of roads. This class is forbidden to charge more than in June, 1873, which might be an un- reasonable rate. And it includes all railroads not included in classes A and B, and might therefore well include roads not operated in June, 1873, which would have no limit of rates of freight under the act. Here is ample scope for sec. 9 of ch. 341, without disturbing the fixed rates of ch. 273. Thirdly. Chapter 273 does not assume to fix rateis for all traffic on railroads. The commissioners might not fix the- remaining rates, or might delay in doing so, or might nat- urally, by inadvertencies, omit articles of freight in their classification. Here again is subject for sec. 9 of ch. 341 to act upon, applying the rule of reasonable compensation. It must be admitted that this looks like careless and slov- enly legislation. But either of these views is one which we are bound to seek, and which, seeking, we readily find, to reconcile the two acts and make them consist together. The question of constructive repeal is one of legislative intent. The three acts were passed within two successive days, and must have been pending together. And it is not possible to believe that the legislature intended to defeat the operation of ch. 273 by the other acts, going through the fotois of legislation contemporaneously with it. And this question of intent seems to us to be absolutely deter- mined hj the passage of joint resolution iPTo. 11, delaying the publication of ch. 273, so that it could not become a la^ 21 Opinions of Chief Justice Ryan. 322 until after chapters 292 and 341 had taken effect as laws; so that the constructive repeal should precede, not follow, the act repealed. The resolution, and the consequent order of publication of the three acts, seem to us not only to dem- onstrate that the legislature intended no repeal, but might possibly have had the effect, if there must be a repeal, of making chapter 273, as the later act, repeal sec. 2 of ch. 292, and sec. 9 of ch. 341. It was contended by the Chicago, Milwaukee & 8t. Paul Company, that it is not in class A of railroads, because the corporation in that class is called the Milwaukee & St. Paul Company; whereas the defendant had just one month be- fore added the prefix, Chicago, to its name, under a statute authorizing such change of name. This was merely as- suming an alias didus, not changing the body nor wholly changing its name. It had been called by one name and chose to be called by another, very similar; differing only by the addition of one word, as a sort of proenomen. These facts are pleaded on both sides. The information avers that there had been no other corporation of the name used in the chapter, and the answer cannot be held to deny it, though there is a qualified general denial. Sexton v. Ehames, 13 Wis. 99 ; AUis v. Sabine, 17 Wis. 626. In- deed we think that there is a presumption that there is no other corporation of the name. We have therefore little difficulty in holding that the corporation named in the act is the defendant. It is said that we cannot resort to evi- dence aliunde to ascertain the corporation intended by the act. Probably not, but we do not need any. We can, how- .ever, look into the laws of the state to solve the question. In another case of misnomer of a corporation, this court held, "that the objections to the act are too technical and evasive. Legislative enactments are not to be defeated on 323 Attorney General v. Railroad Cos. account of mistakes, errors or omissions, any more than other writings, provided the intention of the legislature can be ascertained from the whole act." The court might well have added, but that it was not there necessary, that it could equally look into other acts in pari materia^ as the rule is. l^azro V. Merchant's M. Ins. Co., 14 Wis. 295. This act, by the name it uses, intended some corporation; there is no other but this, and this had lately been designated by the name used. And we find for years before, acts grant- ing powers to the Milwaukee & St. Paul Railway Com- pany claimed here in its answer by this defendant. We find a grant of power to it, passed at the same session and approved by the same governor, March 10, the day before chapter 273. We find no trace in the statutes of any other corporation by either of the alias dicti of this defendant. We should assuredly hold it entitled to the grant of March 10, and we will hold it subject to the act of March 11. We should be ashamed to sit here and suffer the law to fail, where the design of the legislature is so apparent, through so mere a verbal quibble on so mere a verbal accident. Eex V. Croke, 1 Cowper, 29, cited by the defendant, goes upon a confusion of things, not of names ; one designating, as Lord Mansfield says, the corporation at large ; the other, a' select body. And in People v. Oakland Co. Bank, 1 Doug- lass, 282, also cited, the names of the corporation chartered and of the corporation repealed were so essentially differ- ent,- that the court could not gather the legislative inten- tion. The court says: "It is not intended to assert that there should be an exact correspondence between the act creating and the one repealing a corporate charter, so far as the name of the corporation is concerned. All that is required is, that the repealing act should indicate with suffi- cient clearness the name of the corporation intended. There Opinions of Chief Justice Ryan. - 324 should be sucli a correspondence as to leave no doiibt of the- intention of the legislature." There is surely such a corre- spondence here. We imply no censure on any of the distinguished counsel who argued these motions with so much professional abil- ity. We alhide to the defendants when we say, that we are constrained to regard some of these points last considered, as unworthy of these causes. And, while we are not dis- posed to censure them for litigating the main questions in- volved, these petty points could not fail to remind us of the pungent criticism of Lord Langdale, in Brown v. Mon- mouth K. & 0. Co., on such technical points introduced by other great corporations into other great litigations. IV. A question was made on the argument, of the effect of the constitutional amendment of 1871 upon sec. 1, art. XI, of the constitution. The provision of the constitution, as first framed, was, that corporations might be formed under general laws, but not by special acts, except in cases where the legislature should judge that the objects could not be attained by gen- eral laws ; and that such general laws or special acts might be' altered or repealed at any time. Of the first clause of this section it was said : "It seems very obvious, on the face of the provision, that it aimed at the evils of special legislation. The provision is against creating corporations by special acts." "It is doubtful also whether this clause can, at best, be regarded as any- thing more than directory to the legislature, as it leaves the whole matter, after all, to its judgment." Clark v. Janes- ville, 10 Wis. 119. And, as a directory provision, it proved to be largely un- availing, as our statute books abundantly show. Therefore came the amendment of 187lj prohibiting special legisia- 325 Attorney General v. Railroad Cos. tion in this and other cases. This amendment prohibits the legislature from passing special laws, amongst other purposes, for granting corporate powers or privileges, ex- cept to cities ; and directs that the legislature shall provide general laws for purposes for which special acts are so pro- hibited, which shall be uniform throughout the state. It was contended that this amendment, prohibiting the grant of corporate powers by special act, operates as a re- peal of the reserved power of altering existing special char- ters by special acts ; that the prohibition to grant corporate powers includes, not only the creation of new corporations, but also the grant of new powers to existing corporations, and by inference the limitation or regulation of existing corporate powers, by special acts ; and so confines reserved power to alter special charters, to general laws. The difficulty of altering special charters by general laws, which shall be uniform throughout the state, is very apparent. And if this were the true construction of the amendment, it would almost f oUow that, special charters could no longer be repealed by special acts, and that the whole reserved power was relegated to general laws. It was even said by counsel that the charter of a corporation, or- ganized under general law, could be repealed only by re- peal of the general law; so that one corporation of one kind could not be subjected to repeal without repealing the charters of all corporations of the same kind under the same general law. This is almo&t an argument ad ab- surdum. And it is all a very inconvenient and, we may say, dangerous construction, which we should be very un- willing to adopt. We shall not stop to dwell here on the importance of the reserved power. We may do that later, in a more appro- priate connection. We shall only assume here that it is a Opinions of Chief Justice Ryan. 326 power of great significance and gravity ; of such moment, that it is impossible to believe that the legislature and the people intended to surrender or impair it ; very hard to be- lieve that they suffered themselves to surrender or impair it, by implication, in an amendment designed for quite a different purpose, quite consistent with the reserved power. But the purpose of the amendment, so far as it affects sec. 1, art. XI, appears to us very manifest. It was de- signed to act on the first clause only of the section, taking away the legislative discretion and changing the directory provision into a prohibitory one ; and not to touch the sec- ond clause of the section at all, leaving the reserved power where it found it, to be exercised thereafter as theretofore, upon special charters, by special acts. The amendment is prospective only, not retrospective. It prohibits an old way and provides a new way of creating corporations, but was not designed to effect existing corporations in any way. If it could operate to take away legislative control over ex- isting charters, it might well be argued — as it was in Indi- ana — that it operates to repeal them altogether. We can see nothing in the letter or spirit of the amend- ment to warrant us in giving it a construction to impair the reserved power. Under the rule of constructive repeal, we are bound to give such construction to these constitutional provisions, as will leave both to stand together. It is not for us to wrest so great a power from the legislature, by construction, unless the legislature and the people have made such construction inevitable. And we feel bound to hold, and find no difficulty in holding, the phrase in the amendment, to grant corporate powers or privileges, to mean in principio donationis, and equivalent to the phrase, to grant corporate charters. This is implied not only by the word grant, but also by the word corporate. A franchise 327 Attorns^ General v. Railroad Cos. is not essentially corporate ; and it is not the grant of fran- chise which is prohibited, but of corporate franchise ; that is, as we understand it, franchise by act of incorporation. There are cases in Iowa with some bearing on this ques- tion, which are not cited, but which we have carefully con- sidered. The constitution of that state, of 1857, art. Ill, sec. 30, prohibits local or special laws in certain cases; among these, for the incorporation of cities and towns; and pro- vides that, in the cases enumerated, all laws shall be gen- eral and uniform throughout the state. In Ex parte Pritz, 9 Iowa, 30, Davis v. Woolnough, 9 Iowa, 104, and McGregor v. Baylies, 19 Iowa, 44, the su- preme court held that, under the clause of their constitu- tion mentioned, the legislature had not power by special act to amend city or town charters, existing by special act at the time of the adoption of the constitution. With great respect for that court, we should hesitate long before con- curring in the reasoning or adopting the rule of those cases. And the more so, because in Von Phul v. Hammer, 29 Iowa, 222, that court also held that, although the legisla^ ture could not amend existing charters, yet every corpora- tion of the kind might amend its own charter, under a power in the general law. But we need not consider the reasoning of the Iowa cases, because we can not consider them applicable here. There is no equivalent in their con- stitution for the reserved power in ours, to enter into or control the construction of the clause in question. The constitution of Indiana, 1851, art. IV, sec. 22, has a similar prohibitory clause of special legislation in speci- fied cases, including laws for the punishment of crime and misdemeanors; and a similar provision for general laws uniform throughout the state. And the question came be- Opinions of Chief Justice Ryan. 328 fore tjie supreme w»rt, wlietlier a law pujiisliiiig certain itnisdemeauors, local in its application and not nniforin throughout the state, and therefore in conflict with the con- stitutional provision adopted, but which was in force at the time of the adoption of the constitution, was not repealed by the constitution. But the court held, without difficulty, that the constitutional requirement was prospective, and did not apply to laws passed before its adoption. State v. Barhee, 3 Porter, 358. This is an aid to our construction. We hold the amendment of 1871 to relate to future cor- porations, and to leave existing corporations under the orig- inal provision of the constitution; and that, as to the ex- isting corporations, the reserved power to alter or repeal remains unimpaired. Y. The maximum rates of chapter 273, of 1874, ex- pressly apply to the railroads of the defendants. The de- fendants plead various antecedent charters, with express power to take toll, without express limitation. -The exact language differs in different charters ; but the substance is, we believe, alike in all: power to exact tolls in the discre- tion of the company, not essentially different from tlw power in the general railroad act of 1872. And the defendants thereupon insist that the limitation of those powers in their charters, by the fixed rates of chap- ter 273, impairs the obligation of the contract of their charters, and is, therefore, in violation of the provision of the constitution of the United States, art. I, sec. 10, subd. 1, which provides that no state shall pass any bill of attainder, ex post facto law, or law impairing the obligation of con- tracts. The construction and application of this clause by the supreme court of the United States are certain and defined, and arc, of course, beyond the reconsideration of this court 329 Attorne}! General v. Railroad Cos. But a brief review of the clause and its construetion is not irrelevant to the questions before us. Mr. Madison, rederalist, No. 43, thus explains the policy and objects to this provision: "Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. The two for- mer are expressly prohibited by declarations prefixed to some of the state constitutions, and all of them are pro- hibited by the spirit and scope of those fundamental char- ters. Our own experience has taught us, nevertheless, that .additional fences against these dangers ought not to be omitted. Very properly, therefore, have the convention added this constitutional bulwark in favor of personal se- curity and private rights ; and I am much deceived if they have not, in so doing, as faithfully consulted the genuine sentiments as the undoubted interests of their constituents. The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen, with regret and indignation, that sudden changes and legislative interferences in cases affecting private rights, become jobs in the hands of enterprising and influential speculators, and snares to the more industrious and less in- formed part of the community. They have seen, too, that one legislative interference is but the fijst link of a long - nent understanding and relation between the state and its corporations. We say so much in deference to an earnest appeal from the bar to counsel moderation. But, in the meantime, we cannot legislate for either party. We can only say what the law is, and administer it as we find it. An objection was taken to chapter 273, that it is not uniform throughout the state, as required of general laws under the constitutional amendment of 1871. As we think that we have already sufficiently indicated, we sustain and apply this act as an alteration of the special charters of these defendants, and not as an amendment of the general railroad act of 1872. It was said, on the argument, that one of the roads of the Chicago <£ Northwesiern Company was organized under the general act. But that is not pleaded, and does not appear in any of the papers in the' case ; and of course we cannot act upon a mere verbal sug- gestion of the kind. So the question whether chapter 273 can be held a valid alteration of the general railroad act of 1872, is not before us, and is not passed upon. Neither do we express any opinion on the validity of any provision of chapter 273 not expressly involved in the decision of these motions. And, in that connection, it is proper to say that the injunctions prayed for exclude all question here on what is called inter-state commerce. We only hold the provisions of chapter 273 of 1874, regulating their tolls, to be valid amendments of the special charters of these defendants, obtained from the state under the constitution as it stood before the amendment of 1871. VI. Supposing chapter 273 to be, on the part of the state, a valid amendment of the charters of the defend- ants, it was objected that it could not be a valid amend- 33 Opinions of Chief Justice Ryan, ^^^ ment quoad the defendants, witliOTit acceptance of it on their part ; and until such acceptance, not obligatory upon them. And this proposition is sanctioned by Yeaton v. Bank, 21 Grattan, 593, and other cases cited. It was said in Kenosha E.. K. Co. v. Marsh, supra, and we think said — certainly implied — in other cases in this court, that valid alterations of a charter, under the re- served power, would bind the corporation, whether assented to or not. The same thing has bfeen said by other courts, is implied in a great many cases, and is expressly decided by the supreme court of Massachusetts in Mayor v. Nor- wich & W. E. E. Co., supra. And we think that the better opinion. But it appears to us to be here a distinction without a difference. Por it is very evident, as it is said in Yeaton V. Bank, that if the corporation do not accept the amend- ment, it must abandon its charter. ' The court says : "One consequence undoubtedly is, that the corporation cannot conduct its operations in defiance of the power that created it ; and if it does not accept the modification or amendment proposed, raust discontinue its operations as a corporate body." If the amendment be obligatory, the corporation may suspend; if it be not obligatory, the corporation must ac- cept, or suspend ; we fail to see the practical difference in such a case as this. Whether or not the defendants had an election to accept or reject, and whether or not they ac- cepted the amendment, they had no right to go on in dis- regard of the amendment. And we think that their proceed- ing under their charters, after the passage of the altera- tion, raises a presumption that, if they had a right of elec- tion, they exercised it by accepting the alteration. Other- wise, it was their duty to suspend their operations. In any 355 Attorney General v. Railroad Cos. case, the question cannot weigh in the consideration of our duty to enjoin their actual disobedience of the law. VII. The defendant The Chicago, MilwavJcee & St. Paul Company pleads the charter of the territorial legislature of February 11, 1847, incorporating the Milwaukee & Waukesha Railroad Company, and the organization of the corporation thereunder; the act of the territorial legisla- ture of March 11, 1848, extending the road from Wau- kesha to Prairie du Chien, and the construction of the road from Milwaukee to Prairie du Chien in the years 1850- 1856; the act of the state legislature of February 1, 1850, giving the corporation the new name of the Milwaukee & Mississippi Railroad Company; the act of the state legis- lature of March 31, 1860, to. facilitate the formation of a corporation with the franchises of the original company, upon foreclosure of their mortgage, and the formation thereunder, by the purchasers, of th,e Milwaukee & Prairie dii Chien Railway Company; and the conveyance of the road and franchises by that company to the defendant by deed of August 1, 1868 ; and we find an act of February 15, 1868, ratifying the purchase by the defendant of the road and franchises. We, presume that the purchase had been then made, though the deed followed after. We have not considered the title of the defendant to this road, because we think it immaterial here. The road is actually operated by the defendant, and is, therefore, in- cluded in the same class with the other roaSs of the defend- ant by chapter 273. And the question before us must rest on the charter of the road, not on the title of the defend- ant. In saying this, we imply no doubt of the title ; we only say that we have not investigated it, because it does not enter into any question before us. The charter of 1847-1848 appoints commissioners to Opinions of Chief Justice R^an. 856 take subscriptions of stock; and, upon subscription and payment of stock as therein directed, creates the subscrib- ers a corporation vested with the franchises of the act. This act does not create a corporation by its own force only; the prescribed subscription is a condition precedent to the existence of the corporation.' The corporation came into existence, probably, upon the election of directors by the subscribers. Putnam v. Sweet, 1 Chandler, 286. It is not pleaded, and does not appear, when the corpo- ration was actually organized. For all that appears here, it may have been at any time between 184Y and 1850. We are inclined to think, however, that under such a charter, when the existence of the corporation appears, as here, there is a presumption that it was organized immediately' after the passage of the charter. In this case, there is cer- tainly a presumption that the corporation was in esse be- fore the passage of the supplementary act of March 11, 1848, because the act deals with it as an existing corpora- tion by name. This is not, of course, conclusive of the fact, but it is all that we have in this case now; and we must presume, for the purposes of this motion, that the charter was accepted and the corporation organized under it, before the adoption of the state constitution in 1848. The original charter contains a franchise, upon comple- tion of the road or any ten miles of it, to take such toll as the company should think reasonable. The road was not constructed till after the adoption of the constitution, but it was constructed under the terri- torial charter. And the title to the franchise, which runs with the road, dates from the organization of the corpora- tion. There may be facts which are not before, us, or there may be legislation which we have not been able to find, 357 Attorney General v. Railroad Co^. •wMeh might operate to make the defendant hold the road built in pursuance of the territorial charter, under fran- chises granted to the defendant, , or to the defendant's grantor, by the state, and so bring the franchises of this road under the reserved power in the constitution. On the argument, we called on the attorney general for infor- mation on this point; we were only informed that the ter- ritorial charter contained a reserved power to alter or re- peal. On examination, we find this to be a mistake. The only power reserved is in section 20 of the act. And that only provides that in case of violation of the charter by the com- pany, the territorial or state legislature might resume the rights and privileges granted by it. The right reserved in this section is dependent on viola- tion of the charter. That must first be established. That is clearly a judicial function. We need not stop to in- quire whether the territorial legislature could have exer- cised such a function, under such a clatise, and thereupon repeal the charter; nor whether the state legislature could do it now. It is enough that neither has done it. And, in any case, the power reserved is simply one of repeal, which can in no way aid the application of chapter 273 to the road built under the territorial charter. Sections 1 and 2 of art. X^IV, of the state constitution provide, if provision were necessary, for the continuance of the territorial charter in force under the state government. We have carefully examined the several acts of the state legislature applicable to the title of this road, so far as it is disclosed to us ; and we find nothing to defeat or impair the franchises of 1847, as appurtenant to this road, to this day. Sec. 1 of the act of 1860, and sec. 33 of ch. 79 of the Revised Statutes, both provide that the purchasers on the Opinions of Chief Justice Ryan. 3^8 foreclosure should take the road with the franchises relat- ing to it, as granted to the original company. And this seems to be recognized by the act of 1868. This is not a new grant of franchise. The state had licensed the mort- gage of the road and franchise, the corporation had mort- gaged the road and franchise, and both were vested in the purchasers by operation of laHv. The provision of the act of 1860 was only declaratory of an existing right. And as far as the facts are before us, we see nothing to sever the territorial charter from the road, or to operate as a surren- der of that charter or as a relinquishment of the franchises granted by it or as an acceptance of new franchises from the state, to bar the corporation operating the road from relying on the franchises granted by the territory. ISTeither party appears to have investigated the facts, and they may not be all before us. We rest this opinion on what is be- fore us. And we hold the territorial charter of 184Y, en- larged by the territorial act of 1848, to be the existing charter of the road built under it from Milwaukee to Prairie du Chien. This chapter, being accepted — as we are bound here to assume — before the adoption of the state constitution, is not affected by the reserved power in that instrument. And it is undoubtedly a' contract within the rule in the Dart- mouth College case, which the state legislature cannot im- pair. And we have therefore, the direct question, whether the franchise granted by it, to take such tolls as the com- pany should "from time to time think reasonable," is part of the obligation of the contract which the state cannot im- pair, and whether it would be impaired by the application to it of the rule of fixed maximum tolls prescribed by chap- ter 273. ^ We are of opinion that the franchise is not one vesting 359 Attorney General v. Railroad Cos. 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 ag- grieved by the exaction of unreasonable tolls. The ques- tion here, however, is not what the courts can do to con- trol 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 con- trol. But that power rests on the authority of the legisla- ture, not on the reasonable rate of tolls fixed. And the re- straint of a franchise to take reasonable tolls, to tolls rea- sonable in fact, is a judicial, not legislative function. Any authority of the legislature, not under the reserved power of thei constitution, to regulate tolls under a franchise to take tolls, cannot be derived from the judicial function, but must rest in some proper legislative function. And therefore, as far as the legislative power over it is concerned, this must be taken as a valid and absolute fran- chise to take tolls at discretion. And here, again, we think that the question of the right to take tolls, vsdthout a franchise to take them, does not arise. Becanse the legislature has given and the corpora- tion has accepted a franchise to take them. Whatever right there might have been outside the franchise, is merged in the franchise. Both parties are bound by the franchise. Viewed as a contract, the franchise is the written agree- ment between the parties on the subject. Had we been able to agree with the defendant's counsel, that the right to take Opinions of Chief Justice Ryan. 360 tolls is not derived from the franchise, but is — ^in the lan- guage of Mr. Justice Strong — an attribute of ownership ; ownership, we are inclined to think that we might have ruled this point differently. But we have to do here with the right under the franchise, not with a right which might have existed without the franchise. We have no doubt of the general authority of a state leg- islature to regulate the tolls of a corporation of liiis char- acter, as a necessity of public welfare and public order, under the sovereign power of police, when the exercise of that power is not in some way suspended or restrained. But the right of the corporation here to take tolls at dis- cretion, 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 posi- tive grant to take tolls in the manner and to the extent pre- scribed by it, subject to such judicial construction and con- trol as it may bear ; and as a vital part of the contract of the charter, within the authorities. We are not considering the charter as a mere statute. We are considering it, in obedience to the Dartmouth Col- lege rule, as a contract. We are not giving our own views of its effect. We are looking at it in the mirage of federal construction. Considering this matter of purely state law and state polity, we are sitting in vinculiSj bound by an in- terpretation of the prohibition in the federal constitution, on a subject with no federal relation, which we think it ought not to bear, and which, it is admitted, it was not in- tended to bear; but which, while it standsj emasculates state authority over state corporations. We are sitting on this question of state law and state polity, not so much as the supreme court of Wisconsin, as an inferior federal court. And we are boimd, on this subject, to rule, not as 361 Attorney General v. Railroad Cos. we think, but as the federal supreme court thinks. The adjudications of this court on state law and state policy, having no possible relation to federal law or federal policy, have been frequently overruled by that court, without ex- cuse found in the federal constitution. We do not mean to give an opportunity now, with excuse. On this point, we admit and defer to their authority. It is evil example, subversive of judicial order and judicial authority, not becoming judges or courts, to disregard the authority of ijourts within, their peculiar and appropriate jurisdiction ; whether it be of federal by state courts, or of state courts by federal. We do not propose to follow a bad example. And, in all questions under the federal constitution, it is the duty and choice of this court to follow, as nearly as it can, the principles and spirit of the adjudications of the federal supreme court. We think that the state ought to possess the same power over this, as over other railroads. And we think that the right of the state to control territorial charters, independ- ently of the reserved power, ought to exist, as one well founded in principle. We are even inclined to think that the weight of state authority is in favor, rather than against it, even under the Dartmouth College rule. We have con- sidered, with great interest, an able and instructive note of Judge Eedfield to the Philadelphia, W. & B. E. E. Co. ■V. Bowen, Am . Law Eeg., March^^ 1874. We think, how- ever, that the distinguished jurist had too little in his view the spirit and scope of the decisions of the supreme court of the United States; and that he shows rather what the law ought to be, and would be but for those decisions, than what it is under them. He seems to think that the Dart- mouth College rule is being pushed to such an extreme as will ultimately defeat it altogether, by a reductio ad ahsur- Opinions of Chief Justice Ryan. 362 dum. So many are beginning to think, and so we think. But we think that he erra in laying the blame on those who oppose the extent of the rule, which we think belongs to those who support it But, after very deliberate considera- tion, we find that principle and state authority leave us no room for doubt, that this case comes within the prohibition, under the decisions of the supreme court of the United States. We think that the rule to be gathered from all the de- cisions, and which should govern us, is accurately stated in Judge Cooley's excellent work, and we give it in his own words : "The limit to the exercise of the police powers in these cases must be this : the regulations must have reference to the comfort, welfare or safety of society ; they must not be in conflict with any provision of the charter; and they must not, under pretense of regulation, take from the cor- poration any of the essential rights or privileges which the charter confers. In short, they must be police regulations in fact, and not am.endments of the charter in curtailment of the corporate franchise." Cooley's Const. Law, 577. The fixed limitations of toll in chapter 273, if applied to the territorial franchise, would limit tolls under the lat- ter, whether the fixed rates be reasonable or not. And we think that we have sufficiently explained the conflict be- tween the two, to show that the state act does essentially limit a right which the territorial charter confers. The very point which arises here has not, so far as we are aware, been passed upon by the supreme court of the United States. But the principle governing it has been, in many cases. We shall not attempt to review the cases. We will only say that a court which has several times held that state relinquishment of the sovereign right of taxation in 363 Attorney General v. Railroad Cos. favor of a oftrporation is a valid contract vehich the state cannot impair by resumption of the right to tax, is not to be expected to sustain such a substantial impairment of a franchise to take toll, which, at its worst, could effect no public power of the state, and could only be abused by in- dividual extortion. And, in view of all their decisions, and in submission to them, we feel bound to hold the ter- ritorial charter of 1847, enlarged by the territorial act of 1848, to be a contract within the prohibition of the fed- eral constitution, the obligation of which the state can pass no law to impair; and that the provisions of chapter 273, of 1847, limiting the tolls of railroads operated by the Chicago, Milwaukee & St. Paul Company , if applied to the road from Milwaukee to Prairie du Ohien, built under that charter, would impair the obligation of the contract of that charter, and that therefore those provisions of chapter 273 do not apply to that road. If, indeed, that charter was not accepted and the corpo- ration under it was not organized before the adoption of the state constitution, a grave question would arise of the effect of the reserved power in the state constitution upon the charter accepted and the corporation organized, after that instrument had gone into operation. But that ques- tion is not here, and we express no opinion on it. VIII. Before the commencement of the argument an ob- jection was made to the hearing of these motions on the unverified informations of the attorney general, unsup- ported by affidavit. We hold, on the authority of the At- torney General v. The Cohoes Co., 6 Paige, 133, and other cases, that an information of the attorney general ex offi- cio acting under the sanction of his oath of office, is equiv- alent to a bill in chancery verified on information and be- ■ lief. Like such a bill, it will call, in proper cases, for an- Opinions of Chief Justice Ryan. 364 swer under oath. But, as in case of such a bill, an injunc- tion will not usually go upon it, unsupported by positive affidavit, until after the defendant has had the opportunity to contradict it on oath, and has failed to do so. We say this now only for the purpose of settling the practice. In these cases the difficulty was cured by affida- vits filed by the attorney general before the motions were heard, which the defendants had leave to answer, of which they declined to avail themselves. These affidavits, uncontradicted, establish what we pre- sume that defendants denied only pro forma, the disre- gard of the maximum rates of toll prescribed by chapter 273, of 1874. Indeed some of the affidavits filed by the Chicago, MilwavJcee & St. Paid Company admit the viola- tion of that rule of rates, and some of those filed by the Chicago & Northwestern Company very forcibly imply a similar violation. We therefore take the fact to be un- disputed. IX. These views substantially dispose of these motions. A moving appeal was made to us on the argument, if we should sustain these informations, to withhold the writs in our discretion. The appeal was such and so made as could not fail to leave a deep impression on our minds. It was founded on very strong affidavits of the injurious effects to these defendants and to the public interest in their well doing, which it was feared would result from the enforce- ment of the rates of toll prescribed by the statute. These affidavits aire entitled to great respect They are not the affidavits of speculators, at a distance, in the affairs and control of these railroads, reputed to play with the public and private interests involved in them, with cruel success. They are chiefly the affidavits of well known men of high character and standing, of great experience in the affairs 365 Attorney General v. Railroad Cos, of railroads, and especially conversant with these roads. And we may well be permitted to say here that there is great cause for regret that these men and others like them,, acquainted with the state and its people, their resources and their needs, and likely to act in sympathy with them as well as for the true interest of the roads, have not heen independent in the local management of these corporations. If they had been, we are quite confident that there would have been no cause for this unfortunate controversy. But the affidavits, after all, give us only their theories, which do not satisfy us of the ruin which they foretell. Still the appeals seemed so urgent and so sincere that they left im- pression enough on our minds to make us somewhat re- luctant to grant the writs. But we have no discretion to disregard our plain duty. It is true that it is said that the granting or withholding of an injunction rests in the sound discretion of the court. But that is judicial discretion, not willful choice. And the rule is applied to injunctions in aid of private reme- dies. The same rule applies to Tnandamus in cases of pri- vate right. But it does not apply to the application of the writ to things puhlici juris. There the writ goes ex dehito justiciae. The court has no discretion to withhold it. Tap- ping, 28Y. "We need not repeat here the analogies already stated be- tween the two vtrits, used as prerogative or quasi preroga- tive writs, to protect public right. And we have no more discretion to withhold injunction to restrain violation of public right, than to withhold mandamus to enforce public duty. We have held that here is positive violation of positive public law to positive public injury, and that we have juris- diction of this writ, as a prerogative vra-it, to restrain it. Opinions of Chief Justice R^an. 366 There is no room for discretion. The duty is positive, ex debito justicioB. The discretion which we were urged to exercise would be discretion to permit the violation of the laws which we sit here to enforce. It was said to us by counsel, in a professional and not offensive sense, that we dare not issue these injunctions. We reply that, holding what we have held, we dare not face the judgment of the profession for withholding them. We disregard the appeal made to us reluctantly. But it is not to us that such appeal should be made. We had no part in promoting these cases. We have no voluntary part in the decision of them. We only obey the law as we understand it. We cannot care for consequences. We must do our "duty, be the consequences what they may. If such appeal be fit, it is fit to make to the attorney general, not to us. He can heed it. We cannot. But while we have no discretion, we have power to im- pose terms which seem to us just. We have already ex- pressed the opinion that the informations in the nature of quo warranto, pending in this cQurt against these defend- ants, are not a bar to these informations, and our reasons why this may be considered the better remedy. But we