IN THK 
 
 HJPBEME 
 
 OURT OF ILLINOIS, 
 
 CKNTUAL (iHAND DIVISION. 
 
 , 1 S T S . 
 
 ILLINOIS CENTRAL HAIL 
 ROAD COMPANY, 
 
 Appellant. 
 
 THE PEOPLE OF THE 
 
 STATE OF ILLINOIS, 
 
 Appellee. 
 
 Appeal from Douglas. 
 
 TRUMBULL. 
 
 GEO. W. WALL, 
 
 Att'yxfor Appellant. 
 
 Ka-btrdi, Vn., Tribut, Do QiMia, III 
 
 t
 
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 vision. 
 
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 insert the words, applied to. 
 
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 tainable. 
 
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 lUPEEME 
 
 !OURT OF KLLINOIS. 
 
 CENTRAL GRAND DIVISION. 
 
 ILLINOIS CENTRAL RAIL- 
 ROAD COMPANY, 
 
 Appellant, 
 vs. 
 
 THE PEOPLE OF THE 
 STATE OF ILLINOIS, 
 Appellee. 
 
 Appeal from Douglas. 
 
 BRIEF FOR APPELLANT. 
 
 STATEMENT OF THE CASE. 
 
 This was an action of debt, commenced by the At- 
 torney General in favor of appellee against the appellant, 
 under the provisions of an act of the General Assembly 
 of the State of Illinois, entitled ki An Act to prevent ex- 
 tortion and unjust discrimination in rates charged for 
 " the transportation of passengers and freight on Rail- 
 " roads in this State, and to punish the same, and pre- 
 " scribe a mode of procedure and rules of evidence in 
 " relation thereto," &c., approved May 2d. 1873. 
 
 The Declaration is in the usual form, demanding debt 
 $100,000.00, damages $5,000.00, and contains thirty-one 
 counts: the seventeenth is as follows: 
 
 *' And whereas, also, the said defendant heretofore, 
 " to-wit : on the 30th day of March, A. D. 1874, to- wit, at 
 "the county of Douglas, aforesaid, was a Railroad cor-
 
 2 
 
 "poration, and then and there owning and operating a 
 "certain railroad, lying wholly within said State of Illi- 
 "nois, and running from said town of Tuscola, in said 
 " county of Douglas, to Chicago, in the county of Cook, 
 u in the State of Illinois, aforesaid, and then and there 
 "doing business as a common carrier upon and over said 
 "line of railroad, and that afterwards, to- wit: on the day 
 " and year last aforesaid, at the county of Douglas, 
 "aforesaid, the said defendant, as such common carrier, 
 " at the special instance and request of John M. Maris, 
 "carried and transported for said John M. Maris, from 
 "Chicago aforesaid to Tuscola aforesaid, upon and over 
 "said railroad, certain other goods, wares and merchan- 
 " dise, to- wit: seventy barrels of salt, of a certain weight, 
 "to-wit: of the weight in all of twenty thousand pounds, 
 "of the goods and chattels of said John M. Maris, then 
 "and there being, and that said defendant afterwards, 
 "to- wit: on the day and year last aforesaid, at the county 
 "of Douglas, aforesaid, charged, collected, demanded 
 "and received of and from said John M. Maris, as and 
 "for said defendant's toll and compensation for the said 
 " carriage and transportation of said last mentioned 
 " goqtjs. wares and merchandise, upon and over said rail- 
 "road, from said Chicago to said Tuscola, in manner 
 " aforesaid, a large sum of money, to-wit : the sum of 
 "twenty-eight dollars and thirty-five cents, and that 
 " said mentioned sum of money so charged, collected, 
 "demanded and received, by said defendant, of and from 
 "said John M. Maris, for the carriage and transportation
 
 " of said last mentioned goods, wares and merchandise, 
 " as aforesaid, then and there exceeded a fair and rea- 
 " sonable rate of toll and compensation for the carrying 
 " and transporation thereof in manner aforesaid, in a 
 " large sum of money, to-wit: in the sum of three dollars 
 "and fifty-five cents, and was then and there unjust, un- 
 fair, unreasonable and extortionate, contrary to the 
 "form of the statute in such case made and provided, 
 u and against the peace and dignity of the said People 
 "of the State of Illinois, and thereby, and by force of 
 "said statute, an action has accrued to the said People 
 " of the State of Illinois to demand and have of and from 
 "the said defendant the sum of Five Thousand Dollars, 
 " other parcel of the said sum above demanded.'"' 
 
 At the October term, 1874, the cause was submitted 
 to the Court without the intervention of a jury, upon the 
 following 
 
 STIPULATION. 
 
 It is agreed between the parties to this suit, that it 
 be submitted to the Court for trial without the interven- 
 tion of a jury, and upon the part of the defendant it is 
 admitted 
 
 "lst-r-That the defendant charged and collected of 
 the person named in the 17th count of plaintiff's declara- 
 tion, twenty-eight dollars and thirty-five cents, for the 
 transportation of seventy barrels of salt from the city of 
 Chicago, Illinois, to Tuscola, in Douglas county, Illinois, 
 as alleged in said 17th count."
 
 4 
 
 ifc 2d That the maximum amount, fixed for the trans- 
 portation of freight of like class and quantity, by the 
 Railroad and Warehouse Commissioners of the State of 
 Illinois, was before and at the time of such transporta- 
 tion, twenty-four dollars and eighty cents, as established 
 by a schedule of rates for the defendant made, sub- 
 scribed and published, by said Commissioners, and a 
 table entitled "Classification of freight," which schedule 
 of rates and tables of "Classification of freight" were 
 made by said Commissioners, and were in force before 
 the transportation of said salt, mentioned in said count, 
 and were made and published in pursuance of an act of 
 the General Assembly of the State of Illinois, approved 
 . May 2d, A. D. 1873, and in force July 1st, 1873, and en- 
 titled "An Act to prevent extortion and unjust discrimi- 
 nation in rates charged for the transportation of passen- 
 gers and freight on railroads in this State," &c., and this 
 admission shall have the like force and effect as if said 
 schedule of rates and tables of "Classification of freight" 
 had been read in evidence on trial." 
 
 "3d That the sum so charged by the defendant for 
 such transportation in said 17th count mentioned, ex- 
 ceeds the rate as previously fixed by said Commissioners 
 in the sum of three dollars and fifty-five cents." 
 
 "4th It is admitted by the plaintiff' and defendant as 
 follows: that said Commissioners, in pursuance of the 
 statute, have classified the different Railroad Companies 
 of the State, and have established rates differing accord- 
 ing to the classifications thus made, and in so making
 
 such classifications, the rates established for defendant 
 differ materially from the rates so fixed for some of the 
 other railroads of this State." 
 
 "5th That said sum as charged and collected by the 
 defendant was the rate of toll previously directed and 
 determined by a by-law of the Board of Directors of 
 said defendant, in conformity with the provisions of its 
 charter, and so continued to be the rate so established 
 up to and at the time of said shipment." 
 
 U 6th The printed charter of defendant, attached 
 hereto, marked A, approved February 10th, 1851, being 
 an act passed by the General Assembly of the State of 
 Illinois, entitled "An Act to incorporate the Illinois Cen- 
 tral Railroad Company," is admitted as evidence in this 
 case." 
 
 "7th The defendant claims the right to direct and 
 determine its rates of toll for the transportation of 
 freight and passengers, by virtue of the provisions of its 
 charter, and insists that the act of the General Assembly 
 of the State of Illinois, approved May 2d, 1873, entitled 
 ''An A.ct*to prevent extortion and unjust discrimination 
 in rates charged for the transportation of passengers and 
 freight on railroads in this State, and to punish the same, 
 and prescribe a mode of procedure and rules of evidence 
 in relation thereto, and to repeal an act, entitled 'An Act 
 to prevent unjust discrimination and extortion 'in 'the 
 rates to be charged by the different railroads in the State 
 for the transportation of freights on said roads, approved 
 April 7th, 1871,'" in so far as it conflicts with the right
 
 6 
 
 of the defendant to direct and determine its rate of toll 
 for the transportation of freight and passengers, is in 
 conflict with its charter, and the Constitution of the 
 State of Illinois, and is repugnant to the Constitution of 
 the United States, in this, that it impairs the obligation 
 of said contract entered into between the defendant and 
 the State of Illinois, and is unconstitutional and void.\ 
 
 ''8th On the part of the plaintiff, it is insisted that 
 said recited act is constitutional and valid." 
 
 "If, upon the foregoing facts, this Court finds for the 
 plaintiff, it is agreed that a fine of $1,000 may be assessed 
 by the Court ; should the Court find for the defendant, 
 the judgment is to be entered accordingly." 
 
 "Either party may appeal from the decision, finding 
 and judgment of the Court." 
 
 The charter of the Company is set out at large in 
 the Exhibit A. (See Abstract, p. 4, 9.) 
 
 The Court found the issues for the people, and as- 
 sessed a fine of $1,000.00.
 
 7 : 
 
 The defendant brings the Record to this Court. 
 
 I. 
 
 The Declaration is fatally defective, and the judgment must be 
 reversed for this reason- 
 There are thirty-one counts in the Declaration, of 
 which the first thirty are like the 17th, which is set out 
 in full above. The 31st count is for unjust discrimina- 
 tion. 
 
 Under the authority of the case of C. B. & Q. R. R. 
 Co. vs. The People, &c.. reported in Chicago Legal News, 
 Vol. VIII, page 59, we say the 17th count is wholly in- 
 sufficient, because it does not aver that the Board of 
 Commissioners had prepared and published schedules 
 for the various railroads in this State, and that the rate 
 charged by defendant was in excess of the rate fixed by 
 such schedules for such service on defendants road. 
 
 This averment is necessary, in order to bring the 
 defendant within the operation of the act, for in the lan- 
 guage of the Court in the case above cited, " a disregard 
 of the schedule of rates prepared by the Railroad and 
 Warehouse Commissioners, is a necessary element of 
 the offense against which the statute is directed; that is, 
 the charging more than the maximum rates fixed by 
 said Board of CommissioneJs, which makes the Company 
 guilty of extortion under the statute, within its true in- 
 tent and meaning.*' 
 
 The last count, the 31st, was bad on its face because 
 the amounts laid did not agree with the rate per hun-
 
 I 
 
 dred pounds alleged, there being a patent error in the 
 computation, and for the much more important reason 
 that there was nothing to show why different rates 
 might not have been charged upon the supposed ship- 
 ments, the shipments being of different quantities, there 
 not being, in fact, ANY discrimination averred, either 
 just or unjust, between shipments of u a like quantity 
 of the same class " of freight. Vide the case above cited. 
 
 But whether this count be good or bad, there was 
 no evidence offered under it. The 17th was the only 
 count under which the evidence offered could be con- 
 sidered, and if it k 'is so defective that it will not sustain 
 "a judgment, advantage may be taken of the defect in 
 "arrest of judgment or an error, although a good plea 
 ."might have been interposed/' 
 
 Smith vs. Curry, 16 111. 147. 
 
 Brawner vs. Lomax, 23 111. 496. 
 
 Scholfield vs. Settley, 31 111. 515. 
 
 Wilson vs. Myrick, 26 111. 35. 
 
 The People vs. Cloud, 50 III. 439. 
 
 C. R. 1. & P. R. R. vs. Morris, 26 111. 400. 
 
 This is a doctrine so well settled that reference to 
 authorities seems wholly superfluous: but the last case 
 cited so perfectly illustrates the rule as applicable here, 
 that the Court will pardon us for referring to it. 
 
 It was an action to recover, under the statute, for 
 .causing the death of plaintiff's intestate, and the dec- 
 laration was held bad for the reason that it did not aver
 
 9 
 
 the existence of a widow and next of kin, to whom the 
 damages could be distributed. 
 
 The objection was made for the first time in the Su- 
 preme Court, (the defendant having filed a plea of not 
 guilty, upon which there was an issue and a trial in the 
 Circuit Court) and though the plaintiff proved, upon the 
 trial, that the deceased did leave such widow and next 
 of kin, tacitly admitting the necessity of such averment, 
 yet the Court reversed the judgment for this defect in 
 the declaration. 
 
 The fact that this case was submitted on an agreed 
 state of facts, does not, in any degree, affect the position. 
 The stipulation was merely in lieu of evidence, the par- 
 ties agreeing, for the sake of mutual convenience, upon 
 certain facts which would have appeared if witnesses 
 had been sworn, and it was agreed that if, upon " the 
 foregoing facts,"' the Court should find for plaintiff, the 
 fine should be $1,000.00, &c., it being expressly provided 
 that "either party may appeal from the decision, finding 
 and judgment of the Court.'" True, no plea was filed; 
 but no advantage can be taken of this fact. A plea 
 would have merely presented some issue upon the dec- 
 laration, and would have been useful to the plaintiff in 
 deciding how much proof was necessary. No objection 
 was taken to the want of a plea in the Court below, and 
 none can be taken here. 
 
 The question here presented, is whether the case, as 
 made by plaintiff in his declaration, is sufficient, no mat 
 ter how much or how little proof was offered. If the
 
 defendant had not appeared, and a default had been en- 
 tered, still on error, the sufficiency of the declaration 
 might be questioned, and the judgment would be set 
 aside if the declaration were found substantially defec- 
 tive. Or, if a good plea had been tiled, and ample evi- 
 dence oifered to make out a case, and the declaration 
 were found imperfect, still the Appellate Court must set 
 aside the judgment. 
 
 A fortiori, must this be the ruling in the case at bar, 
 where there has been no plea, and where the parties, by 
 agreement, have stipulated that certain facts exist, this 
 stipulation being taken instead of sworn evidence? At 
 most, it is but a trial upon the 17th count, and all the 
 consequences are the same. 
 
 II. 
 
 The penalties provided in the Act are excessive. 
 
 The Constitution of U. S. Amendment VIII, provides 
 that "excessive fines shall not be imposed." The Consti- 
 tution of Illinois, 1848, Sec. 14, Art. 13, declares that 
 "'All penalties shall be proportioned to the nature of 
 the offense." Same, 1870, Sec. 11, Art. 2. What is an 
 excessive fine, is perhaps not easy to define within pre- 
 cise limits. The fine ought, in all cases, to be in propor- 
 tion to the offense, and ought to be measured to some 
 extent, at least, by the penalties imposed for other statu- 
 tory or common law offenses. 
 
 For the first violation of this act, a fine of not less 
 than $1,000 nor more than $5,000, is imposed; for the
 
 11 
 
 second, not less than $5,000 nor more than $10,000; for 
 the third, not less than 810,000 nor more than $20,000; 
 and for every subsequent offense, $25,000. This enor- 
 mous tine of $25,000 is imposed for every violation of the 
 provisions of the act after the third. It is not necessary 
 that there should have been three violations of the same 
 kind; that is, for charging the same rate in excess of a 
 given rate fixed by the schedule; but after the third 
 conviction of any " violation of the provisions of the 
 act," the penalty must be $25,000, no matter how slight 
 or trilling may be the excess. 
 
 No such a penalty has ever been imposed by any 
 law of this State for any other offense. 
 
 An assault with a deadly weapon, never so brutal, 
 is punishable by a line of not Jess, than $25 and not ex- 
 ceeding $1,000, or by imprisonment not exceeding one 
 year. So the adulteration of food and medicine is pun- 
 ishable by a tine not exceeding $1,000, or by imprison- 
 ment not exceeding one year; false imprisonment by a 
 fine not exceeding $500, or imprisonment one year; con- 
 spiracies by a line not exceeding $1,000, or imprison- 
 ment not exceeding three years; obstructing the course 
 of justice by causing witnesses to abscond, by a fine not 
 exceeding $1,000, or imprisonment not exceeding one 
 year. 
 
 Such are some of the heaviest fines provided in our 
 riminal code, it thus appearing that the law makes, in 
 several instances, a fine of $1,000 equivalent to the loss 
 of liberty for one year; while for cruelty to children.
 
 12 
 
 aiding prisoners to escape, destroying a dwelling house, 
 and adultery, $500 is the maximum. For keeping lewd 
 houses, disturbing religious worship or funeral proces- 
 sions, public indecency and stealing fruit, the maximum 
 is $1,000. 
 
 Many other provisions of the criminal code might 
 be presented to show what, in the judgment of the Leg- 
 islature, based upon the administration of criminal law 
 in this State for more than fifty years, is an adequate 
 fine for grave and serious offenses against public morals, 
 public decency and public safety. 
 
 Yet a railroad corporation must be mulcted in the 
 sum of $25,000 for the heinous crime of charging ten 
 cents too much on a car load of grain from Chicago 
 to Cairo, and it is not provided in the act that the Com- 
 missioners appointed to fix the rates* are required or ex- 
 pected to bring to their aid either experience or other 
 assistance in the discharge of the almost impossible task 
 of fixing a just and fair schedule of rates for the railroads 
 of this State, for transporting the various articles of 
 freight that may be brought to them at different points, 
 for different destinations, in all directions, at all seasons 
 of the year, and under all the possible contingencies of 
 an ever changing traffic. 
 
 Is it not plain that these fines are excessive, wholly 
 out of proportion to the offense, the outgrowth of a reck- 
 less, communistic spirit that, fortunately for the peace 
 and good order of society, is manifest only at rare inter- 
 vals ! !
 
 13 
 
 When an enactment provides for so small and trivial 
 an offense, a fine that exceeds the private fortune 
 of the great majority of the most successful men. it is 
 clearly in violation of the Constitution, and ought to be 
 condemned accordingly. 
 
 Such penalties, if enforceable, would soon exhaust 
 the wealthiest corporations, while for the small compa- 
 nies, struggling with competition, with an undeveloped 
 business, an unfinished property and a heavy load of 
 debt, the result is speedy and complete destruction. It 
 would seem that these railroads, which have, more than 
 all else, developed and made available the vast natural 
 capacities of the country, must now be made the sub- 
 jects fcf spoliation and confiscation. 
 
 This suioidal course will inevitably and unfavorably 
 react upon the public interest, for it is impossible thus 
 to cripple such important factors in material and com- 
 mercial affairs without, at the same time, injuriously af- 
 fecting every other branch of industry. Capital, alarmed 
 at such an exhibition of bad faith, withdraws from other 
 enterprises; public confidence is lost, and the long train 
 of monetary disasters and business failures sufficiently 
 attest the ruinous and dangerous tendencies of such a 
 policy. 
 
 The stereotyped complaint is, that these railroad 
 corporations are monster monopolies ; that they have 
 grown powerful enough to oppress the public; that they 
 assume sovereign prerogatives, and claim to be above
 
 14 
 
 and beyond the reach of the people, whose creatures 
 they are. 
 
 If these objections are well founded, what follows? 
 Shall the companies be robbed until their possessions 
 are diminished in value to an ideal standard? If so, why 
 are individual fortunes exempt from the same leveling 
 process ? It is indeed strange, if these corporations, 
 whose object is to serve the public, and whose existence 
 is a continual competitive struggle for public patronage, 
 and whose support depends entirely upon the patronage 
 of the public, would long exercise a grinding monopoly, 
 or long oppress their patrons. 
 
 The laws .of competition demand and supply, and 
 the sharp instincts of self interests may safely be de- 
 pended upon to correct any evils of that sort. If they 
 assume sovereign powers and do not possess them, the 
 assumption will hurt nobody, and a supposed independ- 
 ence of the people will amount to nothing so long as 
 they must depend upon the people for their daily sup- 
 port. Is not all this mere, empty declamation, and is 
 there any practical reason why railroad corporations 
 should be singled out for persecution rather than hotels, 
 manufactories, steamship companies or individual capi- 
 talists? There is no department of business where the 
 profit is so small in comparison with the work. 
 
 The record of many of the companies whose rails 
 
 have been laid in this State, will show that the origi- 
 
 t n al capital invested has been lost. Almost every road 
 
 built, in Illinois since 1869, is to-day in the hands of a
 
 Receiver, while luckless bondholders are anxiously en- 
 quiring for the fruits of the supposed monopoly and 
 oppression against which this legislation is directed, 
 and the most fortunate companies, whose lines have 
 been built for fifteen or twenty years, a third or half 
 of which period passed without a dividend, and along 
 whose routes cities and towns have grown up, are una- 
 ble to pay their stockholders a dividend equal to the 
 lawful rate of interest upon loaned money. 
 
 If any one has conceived the opinion that these cor- 
 porations are beyond the reach of the people, let him 
 observe the course of litigation, and he will soon dis- 
 cover that in the Court House, if nowhere else, the 
 humblest citizen has vastly the advantage over the 
 greatest and richest company. 
 
 If any one has conceived the idea that the promo- 
 ters of railways have realized large profits upon the 
 money invested, an examination of the records will un- 
 deceive him. 
 
 And no one has denied that but for these agencies 
 of progress, Illinois would be a generation behind her 
 present position of wealth, population and power. 
 
 III. 
 
 This Act is in violation of the chartered rights of the Company, 
 and is within the provisions of the Federal Constitution, which de 
 dares that no State shall pass any laic impairing the obligation of 
 contracts. 
 
 Const U. S., Sec. 10, Art, 1. 
 
 Const, of 111., 1848, Sec. 17, Art. 13. 
 Same, 1870, Sec, 14, Art, 2.
 
 . 16 
 
 Tin's charter is a contract. 
 
 This act impairs its obligation. 
 
 Ergo, the act is void. 
 
 The history of the Illinois Central Railroad Company 
 is matter of public record. 
 
 Prior to 1850, railroads had not been extensively 
 built. It had been only twenty years since the first one 
 (the Boston & Lowell) had been devoted to the general 
 business of a common carrier. The building of trans- 
 continental- lines was generally believed to be, if not 
 impossible, at least impracticable. In the Western and 
 Southern country, population was sparse, and capital 
 wholly wanting. Illinois was still laboring, almost help- 
 lessly, under the burden of a public debt, contracted 
 fifteen years before for the purpose of building a general 
 system of railroads and canals. 
 
 Vast areas of tillable land within the State were 
 practically worthless, because inaccessible, 
 i It was definitely settled, by costly experience, that 
 the construction and operation of ''improved public 
 highways" must be left to the skill and management of 
 private enterprise, and that the State could not success- 
 fully maintain such undertakings. 
 
 On the 20th of September. 1850, Congress passed an 
 act granting to the States of Illinois, Mississippi and 
 Alabama, certain of the public lands lying within those 
 States, to be used in the construction of a railroad from 
 Chicago to Mobile.
 
 17 
 
 The act contemplated the passage of a charter of in- 
 corporation by the State of Illinois. Recognizing the 
 profitable effect upon lands not granted, the third sec- 
 tion provided that the lands within the limit of grant, 
 and not embraced by the grant of alternate sections, 
 should be held at " not less than double the minimum 
 price of the public lands when sold." thus securing the 
 Government against any loss. The fourth section pro- 
 vided that the road "should be and remain a public 
 highway for the use of the Government of the United 
 States, free of toll or other charge upon the transporta- 
 tion of any property or troops of the United States," and 
 the sixth section provided that the United States mail 
 should at all times be transported "at such price as Con- 
 gress may by law direct.' 1 Otherwise, the act contained 
 no restrictions or limitations upon the powers to be con- 
 ferred by the State and exercised by the corporation. 
 
 It should be remembered, in this connection, that 
 by the decision of the Supreme Court of the United 
 States, made many years before, the decision being ac- 
 quiesced in and followed by the State Courts wherever 
 the question had arisen, and approved by all text wri- 
 ters, it was absolutely determined that the charter of a 
 corporation was a contract binding upon the State, and 
 as such, protected by the Federal Constitution. 
 
 At the January session of the Legislature. 1851, the 
 memorial of Robert Rantoul and his associates, was pre- 
 sented. It recited that they had examined and consid- 
 ered the provisions of said act of Congress, and the
 
 18 
 
 proposed route, and offered to form a company to build 
 the road by a given time, to make it in all respects first- 
 class, and to equip it ; 'in a manner suitable to the busi- 
 ness to-be accommodated thereby;" to pay to the State 
 'annually per cent, of the gross earnings of said road, 
 without deduction or charge for expense, or for any 
 other matter or cause, provided that the State of Illinois 
 will grant to the subscribers a charter of incorporation, 
 with terms mutually advantageous, with powers and 
 limitations as they, in their wisdom, may think fit, as 
 shall be accepted by said company, and as will suffici- 
 ently remunerate the subscribers for the care, labor and 
 expenditure in that behalf incurred, and will enable 
 them to avail themselves of the land donated by said 
 act to raise funds, or some portion of the funds, neces- 
 sary for the construction of gaid road." Vide Leg. Jour- 
 nal, 1851. 
 
 The State, duly appreciating the importance of the 
 proposed undertaking, passed the charter of defendant, 
 and it was approved on the 10th of February, 1851. 
 Great care and caution was shown in the preparation of 
 the document, and after having made provision for the 
 location of the line, the following was provided for its 
 operation : 
 
 "SEC. 8. The said company shall have power to make, 
 ordain and establish all such by-laws, rules and regula- 
 tions as may be deemed expedient and necessary to ful- 
 fill the purposes and carry into effect the provisions of 
 this act, and for the well ordering, regulating and se-
 
 19 
 
 curing the affairs, business and interests of the company: 
 Provided, that the same be not repugnant to the Con- 
 stitution of the United States, or of this State, or repug- 
 nant to this act. The Board of Directors shall have 
 power to establish such rates of toll for the conveyance 
 of persons and property upon the same as they shall 
 from time to time by their by-laws direct and determine, 
 and to levy and collect the same, for the use of said 
 company. The transportation of persons and property ; 
 the width of track; the construction of wheels; the 
 form and size of cars; the weight of loads; and all 
 other matters and things respecting the use of said road, 
 and the conveyance of passengers and property, shall 
 be in conformity to such rules and regulations as said 
 Board of Directors shall from time to time determine. 
 Nothing in this act contained shall authorize said cor- 
 poration to make a location of their track within any 
 city, without the consent of the common council of said 
 city.'' 
 
 That the State might reap an abundant return for 
 the privileges conferred, the following sections were in- 
 serted : 
 
 "SEC. 18. In consideration of the grants, privileges and 
 franchises herein conferred upon said company, for the 
 purposes aforesaid, the said company shall, on the first 
 Mondays of December and June in each year, pay into 
 the Treasury of the State of Illinois, live per centum on 
 the gross or total proceeds or receipts or income, de- 
 rived from said road and branches, for the six months
 
 20 
 
 then next preceding. The first payment of such per 
 centage on the main trunk of said road to commence 
 four years from the date of such deed of trust, and on 
 the branches six years from the date aforesaid, unless 
 said road and branches are sooner completed, then from 
 the date of completion. And for the purpose of ascer- 
 taining the proceeds, receipts or income, aforesaid, an 
 accurate account shall be kept by said company, a copy 
 whereof shall be furnished to the Governor of the State 
 of Illinois, the truth of which account shall be verified 
 by the affidavits of the Treasurer and Secretary of such 
 company. And for the purpose of verifying: and ascer- 
 taining the accuracy of such account, full power is 
 hereby vested in the Governor of the State of Illinois, 
 or any other person by law appointed to examine the 
 books and papers of said corporation, and to examine, 
 under oath, the officers, agents and employees of said 
 company, and other persons. And if any person so ex- 
 amined by the Governor or other authority, shall know- 
 ingly and wilfully swear falsely, or if the officers making 
 such affidavits, shall knowingly and wilfully swear 
 falsely, every such person shall be subject to the pains 
 
 and penalties of perjury." 
 
 ****** 
 
 *'SEC. 22. The lands selected under said act of Con- 
 gress, and hereby authorized to be conveyed, shall be 
 exempt from all taxation under the laws of this State 
 until sold or conveyed by said corporation or trustees, 
 and the stock, property and effects of said company
 
 shall be in like manner exempt from taxation for the 
 term jof six years from the passage of this act. After 
 the expiration of said six years, the stock, property and 
 assets belonging to said company shall be listed by the 
 President, Secretary, or other proper officer, with the 
 Auditor of State, and an annual tax for State purposes 
 shall be assessed by the Auditor upon all the property 
 and assets, of every name, kind and description, belong- 
 ing to said corporation. Whenever the taxes, levied for 
 State purposes, shall exceed three-fourths of one per 
 centum per annum, such excess shall be deducted from 
 the gross proceeds or income, herein required to be paid 
 by said corporation to the State, and the said corpora- 
 tion is hereby exempted from all taxation of every kind, 
 except as herein provided for. The revenue arising from 
 said taxation, and tho said five per cent, of gross .or total 
 proceeds, receipts or income aforesaid, shall be paid into 
 the State Treasury, in money, and applied to the pay- 
 ment of interest, paying State indebtedness, until the 
 extinction thereof: Provided, in case the tive per cent, 
 provided to be paid into the State Treasury, and the 
 State taxes be paid by the corporation, do not amount 
 to seven per cent, of the gross or total proceeds, receipts 
 or income, then the said company shall pay into the 
 State Treasury the difference, so as to make the whole 
 amount paid equal at least to seven per cent, of the 
 gross receipts of said corporation." 
 
 Section "11 is as follows : "This act shall be deemed 
 a public act, and shall be favorably construed for all
 
 purposes therein expressed and disclosed in all Courts 
 and places whatsoever, and shall be in force from and 
 after its passage.'" 
 
 The State realized so handsomely from the seven 
 per cent, of the gross earnings, that in 1870 a clause was 
 inserted in the Constitution, by an overwhelming vote 
 of the people, prohibiting the repeal or modification of 
 the provision. Vide Const., 1870, "separate section Illi- 
 nois Central Railroad." 
 
 It appears from the public records that the State has 
 thus far received from this source alone, the sum of 
 
 , thus most amply fulfilling the expectations of 
 
 the Legislature granting this contract. The National 
 Government quickly sold all its public lands along the 
 line at dauble prices, and the building of this railway 
 inaugurated a new era for Illinois, quickening every 
 material and business interest within its broad domain. 
 
 The transaction thus briefly sketched has every sub- 
 stantial feature of a contract, made between parties 
 amply competent for the purposes. 
 
 This charter is a contract, and is within the protection of the 
 Federal Constitution. 
 
 We quote from 2 Kent Com., side page 306 : 
 *'A private corporation, whether civil or eleemosyn- 
 "ary, is a contract between the Government and the 
 "corporators : and the Legislature cannot repeal, impair 
 "or alter the rights and privileges conferred by the char- 
 "ter, against the consent and without the default of the 
 "corporation, judicially ascertained and declared. This
 
 "great principle of constitutional law was settled in the 
 "case of Dartmouth College vs. Woodward, 4 Wheat., 
 "519, and it had been asserted and declared by the Su- 
 "preme Court of the United States in several other cases 
 "antecedent to that occasion." Citing Fletcher vs. Peck, 
 6 Cranch, 88 ; State of New Jersey vs. Wilson, 7 Ibid.. 
 164; Terrett vs. Taylor. 9 Ibid., 43; Town of Pawlet vs. 
 Clark, Ibid., 292. 
 
 We quote from Parsons on Contracts, 3d Ed., Vol. 2, 
 page 683 : 
 
 "Thus it has been very solemnly, and we hope au- 
 thoritatively, decided that a corporation is a person 
 u who may take a grant, as well as an individual; that a 
 "corporation created by the Legislature, or adopted by 
 "the Legislature, and endowed with certain powers and 
 "functions and property, the Legislature reserving no 
 "interest in what is given them, and no control over the 
 "succession of persons who form the corporation, or over 
 "their functions. Such a corporation is a private cor- 
 poration, to whom a franchise has been given by a 
 "grant, which is an executed contract; and that any 
 "deprivation of their property, or any disturbance or 
 "denial of their rights and functions, impairs the ob- 
 ligation of the contract. And if the Legislature have 
 "reserved to themselves rights in the creation of such 
 "corporation, or in any grant to them, these reservations 
 "are to be strictly followed, whatever lies without them 
 "being as if there were no reservations whatever."' See 
 Sedgwick on Const. Law. 619.
 
 24 
 
 Before the case of Fletcher vs. Peck had been de- 
 cided, this doctrine had been announced by the Supreme 
 Court of Massachusetts Wales vs. Stetson, 2 Mass., 146, 
 Parsons C. J. saying that "rights legally vested in any 
 corporation cannot be controlled by, or destroyed by any 
 subsequent statute, unless a power for that purpose be 
 reserved to the Legislature in the act of incorporation." 
 
 In the case of Providence Bank vs. Bllings, 4 Peters, 
 400, the bank was resisting a tax imposed by the Legis- 
 lature of Rhode Island. The charter contained no pro- 
 vision on the subject. The Court said, "The question is 
 to be answered by the charter itself. It contains no 
 stipulation promising exemption. The State has made 
 no express contract which has been impaired by the act 
 of which the plaintiff complains. No words have been 
 found in the charter which in themselves would justify 
 the opinion that the power of taxation was in the view 
 of either of the parties," and upon this reasoning, the 
 claim of exemption was denied. 
 
 In the Charles River Bridge case, there was no exclu- 
 sive privilege given to the Company over the waters of the 
 river above or below its bridge; no right to erect another 
 bridge, or to prevent others from doing so, and on this 
 reasoning the relief was refused. 
 
 In case of O. L. I. & T. Co. vs. Debolt, 16 How, 
 
 435, Ch. J. Taney, referring to the Providence Bank case 
 
 and the Charles River Bridge case, says: 
 
 . . "In both th^se cases the Court in the clearest terms 
 
 "recognizes the power of the State Legislature to bind the
 
 "State by contract, and the cases were decided against the 
 "corporations, because, according to the rule of construction 
 "in such cases, the privilege or exemption claimed has not 
 "been granted. But the power to make the contract was 
 "not denied, and I am not aware of any decision of the laws 
 "calling in question any of the prinwiples maintained in 
 "either of these leading cases." 
 
 In Gordon's case, 3 Howard, 133, the Court held that 
 the question was the same as in the Debolt case, and upon 
 the construction given to the words of the particular char- 
 ter, it was held that the State had released its rights. ' 
 
 In Richmond, ifecv, R R Co. vs. Louisa R. R. Co., 
 13 Howard, 71, the same question as to the power of one 
 Legislature to bind another by the terms of a private char- 
 ter, was before the Court, and while it was held that the 
 charter of the complainant did not grant the exclusive 
 privilege, as claimed, yet it was expressly held that the 
 Legislature had the power to make such an agreement, and 
 if such an agreement had been made, it would have been 
 inviolable. 
 
 In the case of State Bank of Ohio vs. Knoop, 16 
 How., 389, the Court say: 
 
 "That a State has power to make a contract which 
 "shall hind it in the future, is so universally held by the 
 "Courts of the United States, and the States, that a general 
 "citation of authorities is unnecessary. 
 
 "There is no Constitutional objection to the exercise of 
 the power to make a binding contract by a State. 
 
 "It necessarily exists in its sovereignty, and it has been 
 so held by all the Courts in this country. A denial of this
 
 26 
 
 is a denial of State sovereignty. It takes from the State 
 a power essential to discharge its functions as sovereign. 
 
 "If it do not possess this attribute, it could not commu- 
 nicate it to others. There is no power possessed by it 
 more essential than this. Through the instrumentality 
 of contracts the machinery of government is carried oil. 
 Money is borrowed, and obligations given for payment. 
 
 ''Contracts are made with individuals who give bonds 
 to the State. So in the granting of charter. If there be 
 any force in the agreement, it applies to contracts made 
 with -individuals the same as with corporations. 
 
 "But it is said the State cannot barter away any part of 
 its sovereignty. No one ever contended rhat it could. A 
 State in granting privileges to a bunk, with a view of af- 
 fording a sound currency or advancing any policy connected 
 with the public interest, exercises its sovereignty, and for 
 a public purpose, of which it is the exclusive judge. Under 
 such circumstances, a contract made for a specific tax, as in 
 the case before us, is binding. This tax continues, though 
 all the other banks should be exempt from taxation. Hav- 
 ing the power to make the contract and rights having 
 vested under it, it can no more be disregarded, nor set 
 aside by a subsequent legislation, than a grant for land. 
 This act, so far from parting with any portion of sov- 
 ereignty, is an exercise of it. Can any one deny the power 
 to the Legislature? To deny either ol these is to take 
 away State sovereignty. It must be admitted the State 
 has the sovereign power to do this, and it would have the 
 sovereign power to impair or annul the contract so made, 
 had not the Constitution ot the United States inhibited the 
 exercise of such a power.
 
 21 
 
 "The vague and undefined and undefinable notion that 
 every exemption from taxation, or a specific tax which 
 withdraws certain Objects from the general tax law, affects 
 the sovereignty of the State, is indefensible." 
 
 And so the Court held that a subsequent tax, fixing a 
 tax higher than that fixed by the charter, was void. 
 
 In the case of Thompson vs. Rutland & Burlington 
 R. R. Co., 27th Vt., 145, the question was, whether 
 the defendant could be required, by a subsequent act, to 
 provide cattle guards, there being no provision on the sub- 
 ject in the charter. Ch. J. Redfield said, in the opinion 
 of the Court, that natural and artificial persons stand upon 
 the same ground, and that this is the true ground and the 
 only one upon which equal rights and just liabilities and 
 duties can be firmly based. He adds: 
 
 "To apply this rule to the preent case it must be 
 conceded that all which goes to the constitution of the cor- 
 poration and its beneficial operation, is granted by the 
 Legislature, and cannot be revoked, either directly or indi- 
 rectly, without a violation of the grant \\ r hich is regarded 
 as impairing a contract, and so prohibited fry the United 
 States Constitution. 
 
 "And, if we suppose the Legislature to have made the 
 same grant to a natural person which they did to defendant, 
 and which they may undoubtedly do (Moor vs. Veasie, 4 
 Pet., 568), it would scarcely be supposed that they thereby 
 parted with any general legislative control over such per- 
 son, or the benefits secured to him. Such a supposition, 
 when applied to a single natural person, sounds almost 
 absurd.
 
 28 
 
 "But it must, in fact, be the same thing when applied 
 to a corporation, however extensive. 
 
 ."In either case, the privilege of rufining the road and 
 taking tolls of faie and freights, is the essential franchise 
 confeired. ANY ACT ESSENTIALLY PARALYZING THIS FRAN- 
 
 CHISE, OK DESTROYING THE PROFITS ARISING THEREFROM, 
 
 WOULD NO DOUBT BE VOID But beyond that the entire 
 power of legislative control resides in the Legislature, 
 unless such power is expressly limited in the grant to the 
 corporation as by exempting the property for taxation in 
 consideration of a share of the profits, or a bonus, or the 
 public duties assumed-" 
 
 Here the distinction is very clearly drawn between 
 such legislative powers as affect the life and health and 
 general safety of the people, commonly known as police 
 powers, which are supposed to be reserved, and the power 
 "to interfere with the essential franchise conferred," which 
 "essential franchise" is said to be the running of the road 
 and taking tolls and the learned judge declares that "any 
 act essentially paralyzing this franchise, or destroying the 
 profits arising therefrom, would be void," and it would 
 seem that even if the charter did not expressly grant to the 
 corp3ration the power to fix the rates, the power would be 
 implied as a necessary consequence, and any interference 
 with the power affecting the profits would be an infringe- 
 ment of "the essential franchise conferred" by the charter. 
 
 In the case of Washington Bridge Co. vs. State, 18 
 Conn., 64, the Court say: 
 
 "Ever since the case of Dartmouth College vs. Wood- 
 u ward was decided by the National Court recognizing
 
 29 
 
 "the charter of private corporations as contracts pro- 
 jected from invasion by the Constitution of the United 
 "States, no other Court in this country has disregarded 
 "the doctrine, and we consider it now as obligatory, and 
 "settled beyond our reach either to deny or disregard, 
 "even if any of us should doubt its original propriety." 
 
 In Commonwealth vs. New Bedford Bridge, 2 Gray, 
 348, the Court say: 
 
 "Upon familiar and well settled principles, the act, 
 "(charter of company) when accepted by the defendants, 
 "was an executed contract between them and the Gov- 
 "ernment, by the terms of which, as contained in the 
 "charter, both parties are equally bound. The defend- 
 "ants cannot, without the consent of the Legislature, 
 "escape or evade any of the duties imposed upon or as- 
 "sumed by them under the act, nor can the Legislature, 
 "without the consent of the defendants, in any way af- 
 u fect or impair the original terms of the charter by 
 "annexing new conditions or imposing additional duties 
 "onerous in their nature, or inconsistent with a reasona- 
 ble construction of the contract * The Common- 
 "wealth has no more power or authority to construe the 
 "charter than has the corporation. By becoming a party 
 "to a contract with its citizens, the Government divests 
 "itself of sovereignty with respect to the terms and con- 
 ditions of the compact, and its construction and inter- 
 "pretation, and stands in the same position as a private 
 "individual. If it were otherwise, then the rights of 
 "parties contracting with the Government would be held
 
 30 
 
 "at the caprice of the sovereign, and exposed to all the 
 "risks arising from the corrupt or ill-judged use of mis- 
 "guided power. 
 
 "The interpretation and construction of contracts, 
 "when drawn in question between the parties, belongs 
 "exclusively to the judicial branch of the Government." 
 
 In the Binghampton Bridge case, 3 Wallace, ^2, the 
 question arose whether the provision in the first charter, 
 that no other bridge should be built within two miles 
 either way, was binding upon subsequent Legislatures, 
 and it was held that the provision was so binding, and the 
 Court held void a charter afterwards granted authorizing 
 another bridge to be built within the prescribed limits. 
 
 Mr. Justice Davis, in delivering the opinion of the 
 Court, says : 
 
 "The Constitutional right of one Legislature to grant 
 "corporate privileges and franchises, so as to bind and 
 "conclude a succeeding one, has been'denied. We have 
 "supposed if anything was settled by an unbroken course 
 "of decisions in the Federal and State Courts, it wa$ 
 "that an act of incorporation was a contract between 
 "the State and the stockholders. All Courts at this day 
 'are estopped from questioning the doctrine. The se- 
 "curity of property rests upon it, and every successful 
 "enterprise is undertaken in the unshaken belief that it 
 "will never be forsaken. A departure from it now 
 "would involve dangers to society that cannot be fore- 
 "seen; it would shock the sense of justice of the coun- 
 "try, unhinge its interests, and weaken, if not destroy
 
 31 
 
 "that respect which has always been felt for the judicial 
 "department of the Government. An attempt even to 
 "reaffirm it, could only tend to lessen its force and obli- 
 gation. It received its ablest exposition in the case of 
 "Dartmouth College vs. Woodward, which case has ever 
 "since been considered a land-mark by the profession, 
 "and no Court has since disregarded the doctrine that 
 "the charters of private corporations are contracts pro- 
 jected from invasion by the United States. And it has 
 "since so often received the solemn sanction of this 
 "Court, that it would unnecessarily lengthen this opinion 
 "to refer to the cases, or even enumerate them. The 
 "principle is supported by reason as well as authority. 
 "It was well remarked by the Chief Justice in the Dart- 
 "mouth College case, that the objects for which a cor- 
 poration is created are universally such as the Govern- 
 "ment wishes to promote. They are deemed beneficial 
 "to the country, and this benefit constitutes the consid- 
 "eration and in most cases the sole consideration for 
 "the grant. The purposes to be attained are generally 
 "beyond the reach of individual enterprise, and can only 
 "be accomplished through the aid of associated wealth. 
 "This will not be risked unless privileges are given and 
 "securities furnished in an act of incorporation. The 
 "wants of the public are often so imperative that a duty 
 "is imposed on Government to provide for them, and as 
 "experience has proved that a State should not directly 
 "attempt to do this, it is necessary to confer on others 
 "the faculty of doing what the sovereign power is un-
 
 "willing; to undertake. The Legislature therefore says 
 "to public-spirited citizens: c lf you will embark, with 
 "your time, money and skill, in an enterprise which will 
 "accommodate the public necessities, we will grant you, 
 "for a limited time, or in perpetuity, privileges that will 
 "justify the expenditure of your money and the employ- 
 "ment of your time and skill.' Such a grant is a con- 
 "tract, with mutual considerations and justice, and good 
 "policy alike require that the protection of the law 
 "should be assured to it." 
 
 In the case of Minot vs. P. W. & B. R. R. Co., 18 Wal- 
 lace, 206, the Supreme Court of the United States again 
 announced the same doctrine. They say 
 
 " That the charter of a private corporation is a 
 "contract between the State and the corporators, and 
 "within the provision of the Constitution prohibiting 
 "legislation impairing the obligation of contracts, has 
 "been the settled law of this Court since the decision in 
 "the Dartmouth College case. 
 
 "Nor does it make any difference that the uses of 
 the corporation are public, if the corporation itself be 
 private. 
 
 "The contract is equally protected from legislative 
 "interference, whether the public be interested in the 
 "exercise of its franchise, or the charter be granted for 
 "the sole benefit of its corporators.'' 
 
 See. also. Home of the Friendless vs. Rouse, 8 Wal- 
 lace, 431, and the University tax case, same volume.
 
 33 
 
 In the case of O. & M. R. R. Co. vs. McClelland, 25 
 111. 140, this Court said : 
 
 'The decisions of the British and American Courts 
 "are numerous, and believed to be uniform that a char- 
 "ter of a private corporation, not created for public or 
 "municipal purposes, is a contract between the Govern- 
 "ment and the corporators. 
 
 "When such a charter is granted and accepted, it 
 "creates an implied agreement that they shall be per- 
 "mitted to exercise the rights and franchises conferred, 
 "and that they will, on their part, in good faith, accom- 
 plish the objects of their creation, and discharge all the 
 "duties imposed by the charter. Being a contract, it 
 "necessarily follows that any act of the Legislature 
 "which repeals, materially impairs or alters their rights 
 ''without, their assent, would be in contravention of this 
 "Constitutional provision." 
 
 And in the case of Newstadt vs. Illinois Centra[ 
 Railroad Company, 31st 111. 484, the question arose as to 
 the validity of the provision of defendant's charter with 
 regard to the payment of taxes. The Court sustained 
 the provision, and remark : 
 
 "The act to incorporate the Illinois Central Railroad 
 "Company, of which the above section is a par,t. is a con- 
 " tract, between the State and the company which cannot 
 "be changed or annulled without the consent of both 
 "contracting parties." 
 
 In this case, the city of LaSalle, under a charter 
 passed subsequent to the charter of defendant, claimed
 
 34 
 
 the right to impose taxes upon the property of defend- 
 ant, in contravention of the provisions of defendant's 
 charter upon that subject, and the decision so clearly 
 and explicitly determines the character of defendant's 
 charter, affirming it to be a contract incapable of repeal 
 or modification by the State without the consent of the 
 company, that further argument or citation of authori- 
 ties would seem to be wholly unnecessary. 
 
 Again, in the case of Illinois Central Railroad Com- 
 pany vs. The City of Bloomington, Chicago Legal News, 
 Vol. VII, p. 379, this Court was called upon to consider 
 the liability of the company to erect and maintain cross- 
 ings on streets subsequent to the building of the road, 
 the city claiming the right under its charter to require 
 all railroad companies to maintain such crossings; and it 
 was held that the company not being required by any 
 provision of its charter to bear such a burden, that it 
 was not legally imposed. The burden was in effect a 
 tax which was not only unequal and oppressive, but it 
 was such as, under the provisions of the charter referred 
 to in the Newstadt case, could not be enforced. 
 
 In the case of Phil., Wil. & Bait. R. R. Co. vs. Bowers' 
 4 Houston, 506, decided at June Term, 1873, the Court of 
 Errors and Appeals of Delaware, was called upon to con- 
 sider the validity of a legislative provision fixing a tariff 
 of rates for the railroad in question. 
 
 The charter conferred upon the company the right 
 to fix the rates, with no reservation of any power in the 
 premises to the State.
 
 3$ 
 
 The Court held that the subsequent act fixing the 
 tariff was in contravention of the charter, and was void 
 because it impaired the obligation of the contract. The 
 Court say: 
 
 "In the first place, then, since the decision of the 
 "'celebrated Dartmouth case in 1819, it had ceased to be 
 "a point for discussion that a corporate charter is a con- 
 "tract within the prohibitory clause referred to: and 
 '"further, that a charter is none the less protected 
 "against legislative interference, although the franchise 
 "'granted be one in the exercise of which the public are 
 "interested, if, nevertheless, the corporation itself be a 
 "private one. For the uses of a corporation may, in a 
 "certain sense, be public,- and yet the corporation, with 
 "its franchises and property, be private, as much so as if 
 "such franchise and property were vested in a single in- 
 dividual instead'of in a company; and nothing can be 
 "clearer than that franchises and property which in their 
 "nature are private, must be equally inviolate, whether 
 "vested in a corporation or in an individua-1. To this 
 "class of private corporations for public uses, belong a 
 "large number, such as colleges, banks, insurance, turn- 
 
 "pike companies, &c." 
 
 ****** 
 
 "The object and effect of the law under considera- 
 tion is to regulate, and so far restrict the power of the 
 "railroad company to charge for the transportation of 
 "passengers and freight. Of such a power, it is hardly 
 "enough to say that it is one of value and importance to
 
 "the company. It is essential to the enjoyment of the 
 "franchise, and must be presumed to have been the con- 
 sideration for which the corporators accepted the char- 
 ter, invested their money, and assumed the obligations 
 "imposed upon them. 
 
 "It was undoubtedly competent for the Legislature, 
 "by a provision of the charter, to reserve to itself the 
 "right to supervise and regulate, in the future, this 
 "power of the Company; but upon a careful examination 
 "of the original acts incorporating the several companies 
 "now composing the Phil., Wil. & Bait. R. R. Co., we are 
 "unable to find in them any reservation of such legisla- 
 tive control as is necessary to sustain the act under 
 "consideration. 
 
 "The power to adjust the tariff of charges by its own 
 "officers, according to their view of the necessities of busi- 
 4 'ness and of justice to the public, withotft supervision, was 
 "a part of the franchise as it was granted. 
 
 "The attempted regulation by the Legislature of this 
 "power, materially abridges the beneficial exercise of it by 
 "the corporation, and without doubt impairs the obliga- 
 tion of the contract in the sense of the Constitution, as 
 "interpreted by the Dartmouth College case. The ques- 
 tion is rot admissible in what degree the power of the 
 "company is restricted by the statute, or whether the reg- 
 1 -illation enacted by it is, or is nt a reasonable or proper 
 "one." 
 
 The Supreme Court of Missouri, in the case of Sloane 
 vs. Mo. Pac. R. R. Co., have recently had occasion to ex- 
 amine this subject. The opinion was filed on the 22d of
 
 37 
 
 Nov., 1875, and it has not been published, we insert it en- 
 tire. It is as follows: 
 
 "Napton, J., delivered the opinion of the Court. 
 
 "On the first day of April. 1872, the Legislature of 
 this State passed an act entitled 'An Act to prevent unjust 
 discriminations and extortions in the rates to be charged 
 by the different railroads in this State for tmnsporation of 
 freight on said road.' The first section of this act is as 
 foilaws : 
 
 '* 'No railroad corporation organized or doing business 
 in this State, under any act of incorporation or general law 
 of this State, now in force or which may hereafter be 
 enacted, shall directly or indirectly charge or collect for the 
 transportation of goods, merchandise or property on its 
 road, for any distance, any larger or greater amount as toll 
 than is at the same [time] charged or collected for the 
 transportation of similar quantities of the same class of 
 goods, merchandise or property over a greater distance upon 
 the same road; nor shall such corporation charge different 
 rates for receiving, handling or delivering freight at differ- 
 ent points on its road, or roads connected therewith which 
 it has a right to use; nor shall any such railroad corpora- 
 tion charge or collect tor the transportation of goods, mer- 
 chandise or property over any portion of its road a greater 
 amount as toll or compensation than shall be charged or 
 collected by it for the transportation of similar quantities of 
 the same class of goods, merchandise or property over any 
 other portion of its road of equal distance; and all such 
 rules, regulations or by-laws of any railroad corporation 
 as fix, prescribe or establish any greater toll or compensa-
 
 38 
 
 tion than is hereinbefore described, are hereby declared to 
 be void.' 
 
 "The third section of this act prohibited any railroad 
 company from increasing its rates of toll for transportation, 
 etc., from one point to another, by ^reason of any decrease 
 in its rates lequired by the first section, and declared that 
 the race of toll after the passage of the act should not be 
 altered from what it was in the same month and day in the 
 year, 1871. 
 
 "The fourth section declared a forfeiture of one thous- 
 and dollars for any breach of this act, to be recovered by 
 any person aggrieved. 
 
 "This suit is for a violation of this act by the defend- 
 ant, setting out thirty-one breaches of the act, and claiming 
 SI, 000 for each breach In one count the allegation is 
 that defendant charged and received a greater sum for 
 transporting certain merchandise from St. Louis to War- 
 rensburg than it charged for transporting the same class of 
 freight in similar quantities from St. Louis to Kansas City, 
 the distance from St, Louis to Kansas City being 63^ miles 
 greater than from St. Louis to Warrensburg. 
 
 "The defendant answered, admitting the facts charged, 
 but asserting that under its charter, dated March 12, 1849, 
 and an amendatory act passed March 1, 1851, and under 
 the act of March 31, 1868, the right to regulate its rates of 
 freight, etc , was left exclusively to defendant. The an- 
 swer moreover alleges that the rates were reasonable, and 
 the discrepancy stated was owing to the competition which 
 the road had to meet at Kansas City from other lines of 
 railroad and from steambocts, and denies the validity of 
 the act of 1872."
 
 39 
 
 To this answer, the plaintiffs demurred for various 
 reasons : 
 
 "First, because the provisions of defendant's charter are 
 not impaired by the act of 1872 
 
 "Second, because the charter of defendant does not 
 authorize it to niako any such regulation of freights as is 
 provided against in the act of 1872. 
 
 "Third, because the act of 1872 5s a police regulation, 
 authorized by the laws of the State and of the United 
 States. 
 
 "Fourth, because defendant's road is a public highway, 
 and the act of 1872 is not void. 
 
 "Fifth, because the charter of defendant does not ex- 
 empt it from the operation of the law of April 1, 1872, 
 under which the proceedings were had. 
 
 "The Court overruled the demurrer, and the plaintiffs 
 electing to stand thereon, a judgment for defendant was 
 entered, and the case comes here by appeal. 
 
 "The questions presented by this case have been dis- 
 cussed very elaborately and with great ablility on each side; 
 but we think the determination of the case depends on the 
 single question whether this act of 1872 is a valid act so far 
 as the present defendant is concerned. 
 
 "It is scarcely necessary to refer to the original charter 
 of the defendant, because the act of the Legislature of 
 March 31, 1868, under which the present company bought 
 the road, is a change of the original charter. The act de^ 
 dared that 'the said railroad company shall be subject to 
 the provisions of the general laws of the State, now in force 
 or hereafter to be enacted, classifying freights and fixing 
 the regulation rates and changes for the transportation of
 
 40 
 
 freights and passengers by the railroads of this State: Pro- 
 vided, that the provisions of this section, subjecting the 
 Pacific Railroad to future legislation, shall not take effect 
 for ten years after the passage of this act ' 
 
 "This act undoubtedly recognizes the fact that previous 
 to its passage the Pacific Railroad was not subject to any 
 regulations of the Legislature classifying freights or fixing 
 the rates of transportation, but subjects the road to such 
 legislative regulations after 1878. 
 
 "The charter of this company had provided that the 
 company 'should determine the terms, conditions and 
 manner in which merchandise, property and passengers 
 should be transported thereon, and that such company 
 should receive such tolls and freights as may be determined 
 m by the Directors, and should keep up statements of the 
 rates of tolls and freights to be charged ' 
 
 "We hardly think it necessary to revert to the Dart- 
 mouth College case to justify the assertion tl.at private 
 corporations, although established for public use, are still 
 entitled to such rights as the Legislature creating them 
 have bestowed in their charter or acts of creation. If the 
 rights so bestowed are inconsistent with, or embarrass the 
 powers which the Legislatures cannot part with, then such 
 renunciation by Legislatures would be of no avail, and not 
 bind their successors. It is not contended in this case that 
 a Legislature may not part with iss right of taxation one 
 of the most important attributes of sovereignty. The con- 
 trary has been asserted by the Supreme Court of the United 
 States, and its decisions have been acquiesced in. The 
 right to regulate the tolls on a road is a matter of inferior 
 importance to the State: and if the right of taxation may
 
 41 
 
 be abandoned, it is difficult to perceive why the right of 
 regulation of tolls may not be transferred to the corpora- 
 tion. 
 
 "The power to regulate tolls is, then, granted to this 
 defendant, not merely by its charter, but by the act of 
 1868, under which defendant bought. The right, it is 
 conceded, is subject to the inherent right of the State to 
 make police regulations, and to the common law right of 
 every citizen to hold a common carrier responsible for every 
 violation by the railroad company of its duty as a com- 
 mon carrier. 
 
 "The act of 1872 undertakes to define the obligations 
 of railroad companies, and to declare that a charge 'for one 
 distance, if it exceeds a charge for a longer one, is an un- 
 just discrimination. It may be so; but whether it is or 
 no*", is a question for the courts to decide, and not the 
 Legislature. The act of 1872 declares that such discrimi- 
 nation is an unjust one, without regard to any circum- 
 stances whatever. In other words, the Legislature, by 
 this act, assumed a power which the charter had originally 
 granted to the company, and which the act of 1868 had 
 continued to confide in the company for ten years after the 
 passage of that act; and the only question is whether the 
 act of 18t>8, under which this road is held, is a valid one; 
 'for if it is, then primarily the defendant is invested with 
 the power to fix its rates of freights and passage, subject to 
 such police regulations as the State always retains power 
 to make. The term police is a very indefinite one. Per- 
 haps Judge Cooley's definition may be considered as exact 
 a one as we shall find: 'Police regulations,' says the au-
 
 42- 
 
 tlior, 'must have some reference to the comfort, safety, or 
 welfare of society; they mast not be in conflict with any 
 of the provisions of the charter; and they must not, under 
 pretense of regulation, take from the corporation any of 
 the essential rights and privileges which the charter con- 
 
 . fers. In short, they must be police regulations in fact, and 
 not amendments of the charter or curtailments of the 
 corporate franchise.' This subject was thoroughly exam- 
 ined in the Court of Errors and Appeals of the State of 
 Delaware, in the case of the Philadelphia, W. & B. R. Co. 
 
 vs. Bowers, 4 Houston, 506, a case very much like the 
 present in all respects. 
 
 "In that case it was held that the power of the com- 
 pany to adjust its tariffs of charges by its own officers, ac- 
 cording to their views of the necessities of business and 
 of justice to the public, having been confided in the fran- 
 chise granted to the company, without any reservation of 
 legislative supervision 31- control, the Legislature of the 
 State has no right to assume control of such regulations, 
 and undertake to fix by law different rates from what the 
 company had fixed: chat the power thus granted to the 
 company was an essential one to the enjoyment of its fran- 
 chise, and must be presumed to have been the considera- 
 tion for which the corporators accepted the charter. And 
 in regard to the police power it was held that the Legisla- 
 ture may at any time regulate the exercise of the corporate 
 franchise by general laws passed for the peace, good order, 
 health, comfort and health of society, but that under the 
 color of such laws it could not destroy or impair the fran- 
 chise, nor any right or power essential to its beneficial 
 exercise.
 
 43 
 
 "In this opinion of the Court of Appeals of Delaware 
 we heartily concur, it being understood that an}' citizen 
 has the right, without regard to charters, to hold the com- 
 pany responsible for any breach of its duty as a common 
 carrier, in charging exorbitant freights or tolls, or in mak- 
 ing unjust discriminations. 
 
 "The objection to the act of 1872 is that the Legisla- 
 ture undertook to pronounce unjust certain discriminations 
 made by th^ company. This the Legislature had no power 
 to do. The right to fix the tolls had already been confided 
 to the defendant until the year 1878. 
 
 "An arbitrary rule was adopted by the Legislature, 
 determining that certain rates were unjust. Whether they 
 were so or not, was a matter depending on circumstances 
 of which the Legislature were not made judges. The 
 liability of defendant at common law and on general prin- 
 ciples, not abrogated by the Legislature, was a matter for 
 the determination of courts of justice with the aid of furies. 
 New England Ex. Co. vs. Maine Central R. R. Co., 52 N. 
 Hamp., 430; Att'y Gen. vs. R. R. Cos., 35 Wisconsin, 432. 
 
 "We were therefore all of opinion that the. act of the 
 Legislature of April 1, 1872, was invalid so far as it affects 
 the defendant. Judgment affirmed. The other judges 
 concur. " 
 
 In view of the foregoing citations we submit that if 
 there be any force in judicial decisions, the proposition that 
 such a charter is a contract, and within the protection of 
 the Constitution, is not be denied. In the language of 
 Mr. Justice Davis, "All courts, at this day, are estopped 
 from questioning the doctrine. * A departure from it 
 now would involve dangers to society that cannot be fore-
 
 seen; it would shock the sense of justice of the country, 
 unhinge its interests, and weaken, if not destroy, that re- 
 spetft which has always been felt for the judicial depart- 
 ment of the government." There can be no departure 
 from it, nor can there be any modification of it. If not 
 recognized fully, and followed accordingly, it must be 
 abandoned in toto. The early statesmen foresaw the ne- 
 cessity of this constitutional provision In the frequent 
 change of afficers, and the consequent temptation to try new 
 theories, and above all the natural disposition to fly to the 
 government for relief, in times of commercial and mone- 
 tary depression, it was foreseen that private rights based 
 upon contract, must often be disregarded, unless protected 
 by the stern and stable power of the Federal Constitution. 
 Aside from the injustice of such an invasion, it was per- 
 ceived that there could be no moie fruitfnr source of public 
 misfortune, and the people in their sober second thought, 
 after the passion of the hour ha* subsided, will rejoice that 
 they are thus protected from self-injury. 
 
 But is said by those who affirm the validity of this 
 legislation, that legislative authority is a trust which 
 the Legislature cannot irrevocably delegate or abandon. 
 It follows, then, that under pretense of exercising a 
 power which could not be abandoned or delegated, the 
 Legislature might disregard its most solemn obligations,
 
 45 
 
 refuse to perform its most solemn contracts, and repu- 
 diate its most solemn pledges. In support of this view, 
 that the Legislature cannot delegate or abandon its 
 powers, certain adjudications are sometimes cited, all 
 being substantially alike in the principle they affirm, 
 and of which the following are fair examples: 
 
 The Presbyterian Church vs. The City of New York, 
 5 Cowen, 538. 
 
 Coates vs. the same, 7 Cowen, 585. 
 
 These cases involved the power of the City of New 
 York to cancel privileges previously given by the mu- 
 nicipal authorities to use certain grounds perpetually 
 for the purposes of interment. After the lapse of many 
 years, the growth of the city about the neighborhood 
 rendered it manifestly unsafe and dangerous to the pub- 
 lic health longer to permit the grounds to be used for 
 that purpose, and it was held that the city had no right, 
 in the first instance, to grant such a privilege irrevoca- 
 bly, for it was in plain violation of the duty to protect 
 public health and guard human life, and hence the can- 
 cellation was good. 
 
 In the case of People, &c., vs. Mayor, &c., of New 
 York, 32 Barbour, 102. it was held that, in regard to fer- 
 ries over the waters belonging to the State, the right to 
 regulate the tolls is an ancient and well settled preroga- 
 tive of the sovereign, and the grantee of a ferry franchise 
 must be presumed to accept subject to this implied 
 right, and where the GRANT is SILENT ON THIS POINT, the 
 right of regulation remains in the State.
 
 -46 
 
 In the case of Commonwealth vs. Alger, 7 Gushing, 
 84, the question was as to the right of the State to make 
 the regulation in question, which was in regard to the 
 erection of wharves upon the flats along the sea shore 
 subject to the ebb and flow of the tide, by which wharves 
 was prevented a reasonable enjoyment by the public of 
 the free navigation of the harbor. And it was held that 
 this regulation stood upon the same ground as other 
 police regulations- such as those affecting slaughter 
 houses, cemeteries, hospitals, wooden buildings, powder 
 magazines, and the like. And the decision rested upon 
 the right of the public to fish or anchor upon, or sail 
 over the ground in question, when the sea was in; this 
 right, being fairly deducible from tl>e provisions of the 
 ancient charter and laws of the Colony on the subject, 
 and it followed that any proceeding interfering with 
 such public rights would be illegal. 
 
 In the case of the Mayor, (fee., of Baltimore vs. The 
 Board of Police. 15 Md., 389, the question was as to the 
 powers of a public corporation, to-wit: the city of Bal- 
 timore. 
 
 Such political bodies are mere agencies of the State 
 for the better government of a locality, and it is not 
 doubted that the State may at pleasure modify or repeal 
 the municipal powers, taking care that no private rights 
 that have vested under the origkial authority, be mate- 
 rially affected. 
 
 The case of O. & M. R. R. Co. vs. McClelland, 25TTT. 
 140, illustrates another class of cases, quite numerous,
 
 47 
 
 standing upon confessedly good grounds, nowise in con- 
 flict with the position assumed by appellant in the case 
 at bar. 
 
 The question was whether a statute requiring rail- 
 roads to fence their track was constitutional, and it was 
 solved in the affirmative upon reasons of acknowledged 
 force. The statute was held to be the exercise of a po- 
 lice power necessary for the protection of human life, 
 and it was likened to the statutes requiring the fencing 
 
 Q,/\-t# 
 
 of saltpetre esmrand castor bean crops, prohibiting stock 
 from running at large when affected with contagious 
 diseases, quarantine regulations, &c.; but the Court dis- 
 tinctly recognized the general doctrine of chartered 
 rights to be settled as above stated, and as will be seen 
 from a quotation heretofore given from the opinion. 
 
 Again, it is urged by those who affirm the validity of 
 this legislation, .that it is but a competent exercise of the 
 police power of the State which is acknowledged to be re- 
 served in all cases. What is meant by this term? 
 
 Blackstone defines the public police and economy as 
 "the due regulation and domestic order of the kingdom, 
 "whereby the inhabitants of a State, like members of a 
 "well governed family, are bound to conform their general 
 "behavior to the rules of propriety, good neighborhood, and 
 "good manners, and to be decent, industrious and inotten- 
 "sive in their respective stations." 4 Bl. Com., 162.
 
 48 
 
 "The police of a (State, in a comprehensive sense, 
 "embraces its system of internal regulation, by which it 
 "is sought not only to preserve the public order and to 
 "prevent offenses against the State, but also to establish 
 "for the intercourse of citizen with citizen those rules of 
 "good manners and good neighborhood which are calcu- 
 lated to prevent a conflict of rights, and to insure to each 
 "the uninterrupted enjoyment of his own, so far as is rea- 
 "sonably consistent with a like enjovment of rights by 
 "others.'' Cooley Const. Line. 572. 
 
 Says another jurist, Judge Redfield: "The police 
 "power of the State extends to the protection of the 
 
 *M 
 
 "lives, limbs, health, comfort and 'quiet of all persons, 
 "and the protection of all property within the State. 
 "According to the maxim, 'sic utere tuo, ut alienum non Icedaa,' 
 "which being of unviversal application, it must of course 
 "be within the range of legislative action to define the 
 "mode and manner in which every one may so use his 
 "own as not to injure others/ 1 
 
 Cooley (Const. Line, 577) observes: "The limit to 
 "the exercise of the police power in these cases (cor- 
 porations acting under legislative charter) must be 
 "this: The regulations must have reference to the com- 
 fort, safety or welfare of society; they must not be in 
 "conflict with any of the provisions of the charter; and 
 "they must not, under pretense of regulation, take from 
 "the corporation any of the essential rights and privileges 
 "which -the charter confers. In short, they must be po-
 
 "lice regulations in fact, and not amendments of the 
 "charter in curtailment of the corporate franchise. 
 
 "The maxim, 'sic utere tuo, ut alienum non IcedasS is that 
 "which lies at the foundation of the power, and to what- 
 "ever enactment affecting the management and business 
 "of private corporations it cannot fairly be applied, the 
 "power itself will not extend. It has accordingly been 
 "held that where a corporation was chartered with the 
 "right to take toll from passengers over their road, a sub- 
 "sequent statute authorizing a certain class of persons 
 "to go toll free, was void. 1 " 1 Pingrey vs. Washburn, 1 
 Aiken, 268. 
 
 "This was not a regulation of existing rights, but it 
 "took from the corporation that which they before pos- 
 "sessed, namely, the right to tolls, and conferred upon 
 "individuals that which before they had not, namely, 
 "the privilege to pass over the road free of toll." 
 
 See The People, &c., vs. Jackson & M. P. R. R. Co., 
 9 Mich., 307. 
 
 In the State vs. Noyes, 47 Maine, 214, it was sought 
 by statute to compel all railroads to wait at least twenty 
 minutes at the crossing of other roads, to enable passen- 
 gers to make close connections, and it was urged that 
 this regulation was a proper exercise of the police power. 
 The Court held otherwise, saying: 
 
 "It is not believed that those who travel or cause 
 "goods to be transported on railroads have a legal claim 
 "for the security of convenience by statute laws, requir- 
 ing duties of the proprietors of such roads (which duties
 
 n 
 
 "are additional to those prescribed in their respective 
 "charters, and which the Legislature has precluded it- 
 "self from imposing) which those who undertake to 
 '"travel in stage coaches, or have goods carried by other 
 "common carriers, have not."' 
 
 Again, on page 216, the same Judge says : 
 
 'But if chartered rights may be impaired and new 
 "duties imposed upon a corporation, without compensa- 
 tion is effectually secured, with success, in contraven- 
 tion of the stipulations in the charter, under the prin- 
 ciple that it is merely the exercise of the police power 
 "to promote public convenience, it is a new and easy 
 "mode by which this constitutional security of private 
 "property and privileges may be broken down."' 
 
 In the case of Phil., Wil. & Bait, R. R. vs. Bowers, 
 cited above, the Court of Errors and Appeals of Dela- 
 ware, thus discuss the subject ot police powers: 
 
 "The police power of the State comprehends all 
 "those general laws of internal regulation which are 
 "necessary to secure the peace, good order, health and 
 "comfort of society. We are now concerned, not so 
 "much to discuss this power at large, as to ascertain, 
 "with sufficient precision for the case before us, what 
 "is the proper limit of the State police power in its 
 "bearings upon chartered rights and privileges, as these 
 "are protected by the Constitution of the United States. 
 
 "It is not difficult to ascertain a rule sufficiently deti- 
 'nite to be applied to cases, and one securing all inter- 
 "es.ts involved saving to the State on the one hand all
 
 II 
 
 "needful authority for the legitimate purposes of police 
 ''regulations, and yet on the other hand not intrenching 
 "upon the constitutional protection of chartered rights. 
 "Such a rule would seem to be this: That the Leg- 
 islature may at all times regulate the exercise of the 
 "corporate franchise by general laws passed in good fa.ith 
 "for the legitimate ends contemplated by the State police 
 "power; that is. for the peace, good order, health, com- 
 "fort and welfare of society; but that it cannot, under 
 "color of such laws, destroy or impair the franchise it- 
 "self, nor any of those rights or powers which are essen- 
 tial to its beneficial exercise. Thus acts regulating the 
 "mode of carriage of passengers with a view to their 
 "safety, or regulating the speed of travel through towns 
 "and cities, or prescribing certain regulations for the 
 "public safety at crossings, or requiring the erection of 
 "fences, etc., are proper exercises of the power of police 
 "regulation. Such acts leave the franchise unimpaired, 
 "and simply regulate the exercise of it in the same par- 
 ticulars essential to the general safety, health and 
 "comfort of society. But quite different are acts which 
 "directly touch the constitution of the corporation, or 
 'abridge or modify any of those corporate powers which 
 "are essential to the very ends of its creation such 
 "powers, for example, as the right to operate a railroad 
 "at all, the right to take tolls or fares and freights, or to 
 "adjust their tariff of such charges. These are not po- 
 lice regulations, but are in substance and effect amend- 
 "ments of the charter, and it is most obvious that if,
 
 under color of the police power, corporations may be thus 
 dealt with, the Constitutional provision, so solemnly ad- 
 judged by the Supreme Court to be a protection to their 
 rights, is, after all, as to them wholly nugatory." * 
 
 The instances of an appeal to the police power in de- 
 fense of an act abrogating rights granted by previous legis- 
 lation, are not uncommon. 
 
 In the Binghampton Bridge case, 3 Wallace, it ap- 
 peared that a former generation had thought it wise to 
 grant an exclusive franchise for bridge purposes, for two 
 miles in each direction. At the time the grant was made, 
 it was the best contract the State could possibly obtain, 
 and was highly satisfactory to the public. 
 
 Afterwards more bridges were wanted, and it was pro- 
 posed to build them irrespective of the rights granted to 
 the first company, and without compensation for an inva- 
 sion ot the exclusive piivileges. 
 
 In the New Bedford Bridge case, 2 Gray, 339, the 
 
 . Legislature proposed to interfere in behalf of the public, in 
 
 aid of navigation, to compel the building of wider draws. 
 
 In the Boston & Lowell R R. case, 2 Gray, 1, the 
 same interference was proposed in behalf of the public, to 
 secure another railroad between given points. 
 
 In 47 Maine, 214, State vs. Noyes, the object was to 
 obtain close connections at the expense of the company. 
 
 In all these instances the Courts refused the demand, 
 holding that, while it might be highly desirable to afford 
 the additional conveniences sought for, yet it could not be 
 done without compensation. 
 
 It is not insisted that there is any peculiar sanctity at-
 
 53 
 
 taching to a railroad franchise. No one claims that rail- 
 road property is entitled to any more or other protection 
 than is guaranteed to private possessions. It is only urged 
 that the same rules should prevail in considering either 
 kind of property. 
 
 The effect of the charter granted to these defendants 
 is to enable them, as an artificial person in their corpor- 
 ate capacity, to operate a business that might be as well 
 operated by a private citizen having sufficient means to 
 acquire or build the road, and operate it. In thus cre- 
 ating the corporation certain distinct powers are granted, 
 and among them the following: 
 
 "The Board of Directors shall have power to estab- 
 lish such rates of toll for the conveyance of persons and 
 "property upon the same, as they shall from time to 
 "time by their by-laws direct and determine, and to levy 
 "and collect the same, for the use of said company." 
 
 This provision is not indefinite or ambiguous it is 
 plain, positive, direct. 
 
 It was inserted in view of the then well settled law 
 of the land, which regarded this charter as a contract, 
 which could not be altered, modified or repealed, except 
 by consent of both parties. Suppose this clause had 
 been omitted, then the company would have stood upon 
 the same ground as a private citizen, exercising the 
 functions of a common carrier such as a stage coach 
 proprietor, the owner of a steamboat, or of any other 
 vessel or vehicle used in serving the public by carrying 
 passengers and freight from point to point. The right 
 to take reasonable tolls would have been a necessary 
 incident to the business, but it never would have been 
 supposed that under our system of government, the
 
 54, 
 
 Legislature could have judicially ascertained and fixed 
 upon certain rates as being reasonable. 
 
 We admit, to the fullest extent, the police power 
 of the State over individuals and corporations alike, re- 
 straining evil or immoral practices, unwholesome or 
 dangerous occupations, requiring such safeguards as may 
 be necessary tor public health or safety, inthe perform- 
 ance of lawful acts, establishing quarantine regulations, 
 supervising the management of hospitals and cemeteries; 
 but we respectfully submit that the private rights can- 
 not be invaded, chatered privileges, monopolies if you 
 please, (for these may be lawful), cannot be broken down 
 to subserve the public convenience, or to increase the 
 profits or gains of particular classes of persons. It might, 
 subserve the public interests if all freights and passengers 
 could be carried gratis It would doubtless please the 
 consumers of grain if the freights from the cornfield to the 
 seaboard were reduced one-half, yet it can hardly be 
 termed an exercise of the police power for the Legislature 
 to pass a law to that effect. As well might the same 
 sovereign will determine the charges of hotels or the profits 
 of manufactories, because these happen to be operated un- 
 der a charter granted by a previous Legislature, no such 
 power being reserved to the State in the charter. It was 
 never contended that there could be a legislative schedule 
 of prices for produce or manufactured articles, for the ser- 
 vices of professional men, the wages of laborers, or the 
 profits of any other branch of trade. 
 
 There is no mystery about a railroad franchise; it is 
 nothing more or less than an authority to an artificial per-
 
 00 
 
 son to perform certain acts which a natural person might 
 do without the authority. 
 
 The consideration operating upon the mind of the 
 creator, is to further some object of conceded benelit or ad- 
 vantage to the public. The terms and conditions of the 
 grant are plainly phrased, and these measure the rights 
 and privileges of the corporation. The franchise may not 
 be valuable at first, the enterprise is one of doubtful pro- 
 priety ; its success is contingent upon' many circumstances 
 as yet unknown ; it may prove a total failure, and every 
 dollar invested, and much personal fortune, may be swal- 
 lowed up; the corporator take the risk. If it succeeds, 
 the franchi a e is valuable. Great risks ought to bring the 
 right to enjoy great gains: but if the police power may be 
 invoked on all convenient occasions, to trim the profits of 
 every business to an ideal standard for the benefit of those 
 whose means and courage have not contributed to the for- 
 tunate growth of the business, then we shall soon put an 
 effectual check upon all commercial enterprises. What 
 incentive to prosecute great undertakings, to overcome 
 natural obstacles and risk immense sums in uncertain ven- 
 tures, if the law will not protect the promotor in his 
 profits. Such an agrarian view, if carried into practice, 
 would soon remit us to primitive conditions, mentally, 
 morally, and financially. 
 
 It was for the Legislature granting the charter to 
 decide whether such an arrange-uent would be sufficiently 
 advantageous to the State. This was for them to say in 
 view of their then condition, and in so saying they were 
 able t:> bind those who might come after them. But
 
 56 
 
 whether they made a fortunate arrangement, looking at it 
 in view of present interests and prospects, is not an admis- 
 sible question. We must abide the result, and must con- 
 strue the rights of the parties by known rules established 
 for the guidance and protection of all. 
 
 As a matter of fact the public has no right to com- 
 plain, since the result has been full of prosperity and wealth 
 to the State, but that is not material in passing upon the 
 legal rights of the parties. 
 
 But it is urged by those who affirm the validity of the 
 legislation, that tne company can only charge reasonable 
 rates, and that this act is merely to fix such rates and pun- 
 ish the taking in excess thereof. 
 
 We deny that the corporation can be held, either by 
 statute or at common law, for taking an unreasonable rate. 
 
 If it be conceded that at common law, one exercising 
 the business of a common carrier was liable for charging 
 unreasonably, yet we say that the rule cannot operate upon 
 this corporation. But what was the rule? 
 
 It is stated thus by Chancellor Kent, Vol. 2, side 
 p. 599. 
 
 "As they (common carriers) hold themselves to the 
 world as common carriers for a reasonable compensation, 
 they assume to do what is required of them in the course 
 of their employment, if they have the requisite convenience, 
 to carry, and are ottered a reasonable or customary price,
 
 57 
 
 and if they refuse without some just ground, they are 
 liable." 
 
 This assumes an implied or supposed holding out to 
 world that they will carry for reasonable or customary com- 
 pensation, upon \vhich assumption one wishing their ser- 
 vces or acting with reference to them (as for instance en- 
 gaging to deliver goods at a given point on the carrier's 
 route) would have a right to rely; and the liability of the 
 carrier rests mainly upon the ground that he has disap- 
 pointed the just and reasonable expectation of the patron, 
 (who, but for this expectation would presumably have 
 taken a different action) rather than upon any supposed 
 miscorduct in asking too much. It will be noticed, also, 
 that he might demand (and must accept if offered) a cus- 
 tomary price, whether moderate or not 
 
 Now, is such an assumption to be implied of a corpo- 
 ration acting under a charter which gives it the absolute 
 power "to establish such rates of toll for the conveyance 
 of persons and property as they (directors) shall from time 
 to time by their by-laws direct and determine, and to levy 
 and collect the same tor the use of said company?" 
 
 We submit that this would rather be the form of the 
 undertaking : THAT IT WOULD CARRY FOR ALL, TO THE EX- 
 TENT OF ITS CAPACITY. AT CERTAIN RATES ESTABLISHED BY 
 THE BY-LAWS, AND USUALLY MADE PUBLIC IN THE FORM OF 
 PRINTED SCHEDULES. 
 
 So we say, whatever might be the rule, if the charter 
 were silent upon the point, yet as it contains this provision 
 the defendant is not simply authorized to carry the right 
 to receive a reasonable and customary compensation being 
 implied but it is also authorized "to levy arid collect" for
 
 58 
 
 its services such rates as the directors "shall from time to 
 time, by their by-laws, direct and determine." 
 
 If it be said that these rates must be reasonable or 
 customary, we answer: It is not so provided. If such a 
 condition is impliedly attached, then this provision is abso- 
 lutely without value. It has no significance. The charter 
 would have been the same if this clause had been omitted, 
 for the right to demand reasonable or customary compen- 
 sation would have been implied if nothing had been said. 
 . We distinctly affirm that it is a lair construction of 
 the language to say that the charge may be high or low, 
 reasonable or unreasonable, so long as it is fixed by the 
 by-laws; and the only way of correcting the fancied evil, 
 is by the natural remedy, flowing from the conditions of 
 trade, demand and supply, as affected by the sharp competi- 
 tion already giown up in the immense carrying business of 
 the State. The keen instincts of self interest may be safely 
 depended upon to furnish the needed relief, and it will be 
 found that unreasonable rates will not long be maintained, 
 because self destructive. 
 
 But if it be conceded that the rates must be reasonable, that this 
 is an implied condition, limited upon the express pmcer to charge, what 
 follows? 
 
 Can the Legislature judicially find and ascertain what is rea- 
 sonable? It cannot, for this is an invasion of another department 
 of governmental function.
 
 59 
 
 If we are answered that by this act the Legislature do 
 not judicially find and fix the rate, but only provide a mode 
 by which a PUIMA FACIE rate can be ascertained, and that 
 the act then merely affixes a punishment for taking in 
 excess of this rate, we reply by again quoting from the New 
 Bedford Bridge case : 
 
 "The Commonwealth has no more power or authority 
 "to construe the charter than has the corporation. By be- 
 "coining a party to a contract with its citizens, the govern- 
 "ment divests itself of sovereignty wit/, respect to the terms 
 "and conditions of the contract, its construction and inter- 
 pretation, and stands in the same position as a private 
 "individual. 
 
 "If it were otherwise, then the rights of parties con- 
 tracting with the Government would be at the caprice 
 "of the sovereign, and exposed to all the risks arising 
 "from the corrupt or ill-judged use of misguided power. 
 "The interpretation and construction of contracts drawn 
 "in question between the parties, belongs exclusively to 
 "the judicial branch of the Government." 
 
 In State vs. Noyes. 47 Maine, 204, the Court say: 
 "The right was conferred so that the directors of the 
 "company should prescribe rule* and regulations ac- 
 "cording to their own judment, without any interference 
 "of the Legislature, unless the company should in some 
 "way abuse the privileges granted; and in determining 
 "whether they had been so abused, the power to judge 
 "is not left with the department of the Government 
 "which conferred the privileges, but according to the
 
 "act of incorporation itself, as before stated, by due pro- 
 "cess of law, though the Legislature might provide, by 
 "general legislation, lines and penalties for abuses, and 
 I'modes in which they might be imposed; but whether 
 'abuses of the privileges granted had taken place in 
 "given cases, is exclusively with another department of 
 'the Government to find. New Bedford Bridge case, 2 
 "Gray, 339. The company being thus secured in its in- 
 dependence of the Legislature, and having the right, 
 "by its directors, to establish a toll, for the sole benefit 
 "of the corporation, upon all passengers and property of 
 'all descriptions which might be conveyed or transported 
 "by them on the road, it was induced to construct the 
 "road and put it in operation as the consideration of the 
 "grant in the charter. 
 
 "The act of the Legislature thus became a contract 
 "between the Government, acting in its sovereign ca- 
 pacity, with the company, formed on the mutual con- 
 siderations, moving from one party to the other. This 
 "contract is to be construed by the tribunal established 
 "for such purposes generally, on the same principles 
 "which are to be contracts between private individuals, 
 "and in both classes the great question presented is, 
 "what was the intention of the parties if And the an- 
 "swer to this question, and the construction to be given 
 "to all such contracts generally, is the appropriate and 
 "exclusive business of the judicial department." 
 
 Now, we ask if the Legislature cannot judicially find 
 what is reasonable, if this is strictly a judicial function,
 
 if the Legislature cannot give a construction to the con- 
 tract, how is it possible for the Legislature to pass a law 
 by which it shall say to the judiciary, "Consider THIS a 
 "reasonable rate, treat it, as prima facie, the maximum of 
 ''reasonable charges, and unless this rate is, by the 
 "weight of the evidence, shown not be reasonable, fix 
 "the liability of the corporation"? If the contract is be- 
 yond the power of the Legislature to construe, it must 
 be so in to to, and surely it is not admissible for the Leg- 
 islature to gjve it a prima facie construction a construc- 
 tion sub modo, throwing the burden of proof upon the 
 company to overcome a prima facie case made by their 
 own arbitrary decree. 
 
 The company have the right to fix rates in the first 
 instance. These rates must be reasonable, (it is as- 
 sumed) and it is highly penal to make them excessive. 
 The presumption of course is, that the company per- 
 forms its duty properly and fairly, and the burden of 
 proof would be upon the iState, to show the contrary. 
 
 Now, the State having no power to construe the 
 contract, having no right to judicially find in the prem- 
 ises, arbitrarily fixes a rate, and makes out its own case, 
 in the first instance, by declaring, in its own favor and 
 interest, that the rate so fixed is the maximum of rea- 
 sonable charges. There is, in principle, no difference 
 
 V 
 
 between this and an absolute finding a conclusive ad- 
 justment. 
 
 The difference is in degree only, not at all in princi-
 
 62 
 
 pie, and either act would be obnoxious to the same ob- 
 jection. 
 
 It' the Legislature can say what shall be a prima facie 
 case, it can say that a certain modicum of proof should 
 be required to overcome such prima facie case. In a word, 
 the allowance of such a power would be (to quote from 
 the case of State vs. Noyes, 47 Me.) u a new and easy 
 u mode by which this constitutional security of private 
 "property and privileges may be broken down." 
 
 All reasoning upon this point must necessarily re- 
 sult thus. The Legislature, in the charter, gave the 
 company the right to fix the rates. This right was given 
 absolutely and without conditions, and any subsequent 
 legislative act affecting this power, either by directly 
 fixing a conclusive rate, or indirectly by making a. prima 
 facie standard, does impair the contract, for it is not 
 necessary that the contract shall be wholly abrogated. 
 It is not to be IMPAIRED in any substantial degree. 
 
 Here is a clear case of the taking of property with- 
 out due process of law. It is necessary, according to the 
 due process of law. that before condemnation, there 
 shall be a hearing, and that judgment shall rest upon 
 proof, the party affected having due notice and opportu- 
 nity of defense. 
 
 But here there is no notice: no evidence; only a 
 judgment. 
 
 And, worse than all, this judgment is rendered by a 
 department of the Government to which all judicial 
 power has been expressly denied by the Constitution,
 
 We quote from the American Law Register, Vol. 14, p;ige 392 
 the following syllabus of the case of Francis vs. Baker, n R. I. 
 The Report is not within our reach : 
 
 A statute provided for the appointment of auditors in certain cases 
 of assumpsit, debt, etc., involving the settlement of accounts, and 
 for a trial by jury on demand, after the confirmation of the Report 
 of the Auditors; and that upon such trial the , report should be 
 prima facie evidence of all matters embraced in the order. Held 
 that this statute was void so far as it made the report prima facie 
 evidence for the jury, it being in conflict with the provisions of the 
 State Constitution, which declared that the right of trial by jury 
 should be inviolate.
 
 63 
 
 and by a party to a contract, the terms whereof, present 
 the substantial issue in the case. 
 
 It is sometimes urged by those who support this 
 legislation, that because the State has exercised the 
 p(Twer of eminent domain in opening a right of way for 
 this railroad, therefore it has retained, by implication, 
 the right to contradict and set aside the clause above 
 quoted, and regulate the rates. 
 
 This is znonsequUur. No such right was reserved. 
 The supposition of such a reservation is at war with ex 
 press and positive language of the grant. There is 
 nothing ambiguous, no doubtful clause, no room for 
 construction. 
 
 The power to condemn was given in express terms, 
 and without the supposed condition. 
 
 It might have been a proper subject of considera- 
 tion; it doubtless was, when the charter was given, 
 whether this power should be asserted for the purpose 
 in view. The question was then solved in the affirma- 
 tive, and no doubt wisely. Without it, the necessary 
 right of wav was perhaps not attainable, for one obst 
 nate freeholder, or one tract owned by persons incapa- 
 ble of consent, might have prevented the opening < 
 this great thoroughfare for years, perhaps for all time.
 
 64 
 
 producing incalculable injury to the material interests 
 of the whole community. 
 
 As a matter of fact, it does not appear from the 
 record that the power was ever brought into exercise, 
 and so far as the record shows, it never was. In truth, 
 the company^ tracks were laid in part over its own lands, 
 and in part over lands J,where, by purchase or donation, 
 the right of way was procured without resort to the pro- 
 cess of condemation. 
 
 If it be said that the exercise ol this right of eminent 
 domain is only justifiable because of a great public need, 
 and that this need renders public the use to which the road 
 is applied, nothing is added to the position, for the State 
 did not guarantee that it would furnish transportation at 
 given rates, or at reasonable rates, nor that the corpora- 
 tion should do so, nor is the public use of a species of 
 property, evidence of the public ownership of the property. 
 The use of a hotel, or a newspaper, is public, though the 
 property is private. Many occupations are public in the 
 same sense, yet the persons pursuing them have never 
 been called upon to regulate their charges by a legislative 
 scale. 
 
 In the People, tfec. vs State, 20th Michigan, 478. 
 
 Cooley J. says of railroads: 
 
 "I have said that railroads are often spoken of as a 
 "species of highway. They are such in the sense that they 
 "accommodate the public travel, and that they are regu- 
 lated by law with a view to preclude partiality in their 
 'accommodations. 
 
 "But their resemblance to the highways which belong
 
 65 
 
 "to the public, which the people make and keep in repair, 
 "and which are open to the whole public to be used at will 
 ' 'and with such means of locomotion as taste or pleasure or 
 'convenience may dictate, is rather fanciful than otherwise, 
 "and has been made prominent, perhaps, from the necessity 
 "of resorting to the right of eminent domain for their estab- 
 lishment, than for any other reason. 
 
 "They are not, when in private hands, the people's 
 "highways; but they are private property, whose owners 
 "make it their business to transport persons and merchan- 
 dise in their own carriages, over their own land, for such 
 "pecuniary compensation as may be stipulated. These 
 "owners carry on, for their own benefit, a business which 
 "has indeed its public aspect, inasmuch as it accommodates 
 "a public want; and its establishment is consequently, in a 
 "certain sense, a public purpose. 
 
 "But it is not such a purpose* in any other or different 
 "sense than would be the opening of a hotel, the estab- 
 lishment of a line of stages, or the putting in operation of 
 "a grist mill; each of which may, under proper circum- 
 stances, be regarded as a local necessity, in which the 
 "local public may take an interest beyond what they would 
 "feel in other objects for which the right to impose taxa- 
 tion would be unquestionable. 
 
 "The business of railroading, in private hands, is not 
 "to be distinguished in its legal characteristics from either 
 "of the other kinds of business here named, or from many 
 "others which might be mentioned." 
 
 The small part of a roadway that may be obtained by 
 condemnation is so insignificant compared with the 
 amounts expended in the construction and equipment of
 
 the whole property, that it would seem grossly unreason- 
 ahle to suppose that because this small item, bought and 
 paid for at its appraised value, under valid legal proceed- 
 ings, was procured through the exercise of a public power, 
 therefore the ownership of the whole property is public, 
 and subject to the risks of its judged or misjudged public 
 regulations. 
 
 The ownership of the property must be, and necessa- 
 rily is, private. Because the State has donated to a rail- 
 road company a piece of land in aid of the construction of 
 the road, does it follow that the public may ever after in- 
 terfere in the use of that laud? The assets of the company 
 become the private property of the stockholders, bought 
 and paid for with their own money, and they may fairly 
 object to any process that would either take their property 
 from them at once, or by diminishing its producing power, 
 lender it without value. 
 
 If the power of earning money in sufficient amounts 
 to pay dividends be taken away, then the property is 
 practically worthless; and though it may happen that a 
 small or an important element in the estate was derived 
 from the exercise of a public function of the sovereign 
 enabling the company to acquire a right of way as a last 
 resort, yet this was not done without compensation; be- 
 fore the condemnation could be made effectual, the price 
 must be paid not by the State, but by the company out 
 of its private funds. Nor was there any peculiar sanctity 
 impressed upon the property so acquired. And thus it 
 appears that the most important consideration in the case 
 of eminent domain is the necessity of accomplishing some
 
 67 
 
 public good which is not otherwise practicable, and the 
 law does not so much regard the means as the need. Yet 
 those whose money pays the damages, would be unwill- 
 ing to make the investment, and would never do it if 
 they were warned in advance that this peculiar feature 
 of a small part of the property would give cast and color 
 to the whole, and by the forms of a legal fiction, ren- 
 der public and worthless what was before private and 
 profitable. 
 
 Trusting that we have not unduly taxed the patience 
 of the Court in the discussion of a question already 
 threadbare by reason of its prominence in the popular 
 controversies of the day, in the press, and at the bar, but 
 of infinite importance because of the interests involved 
 and the momentous consequences attending its decision, 
 we beg to repeat- 
 Any act impairing the obligation of a contract is 
 void. 
 
 This charter is a contract. 
 This act impairs its obligation. 
 This act is void. 
 
 GEO. TRUMBULL, 
 GEO. W. WALL, 
 
 Attorneys for Appellant.
 
 Kfl