stitutional amendment of 1871," they say, "We sustain and apply this act as an alteration of the special charters of these defendants;" and they hold the provisions regulating tolls to be "valid amendments of the special charters of these defendants, obtained from the state under the constitution as it stood before the amendment of 1871," and say it is unnecessary for the defendants to assent to the amendments, because they bind the corporations without acceptance.

One of the charters before the court was a territorial charter, and granted before the constitutional "reserved power" existed. In reference to this charter, the court say,—

"And here again we think that the question of the right to take tolls, without a franchise to take them, does not arise, because the legislature has given, and the corporation has accepted, a franchise to take them. Whatever right there might have been outside the franchise is merged in the franchise. Both parties are bound by the franchise. Viewed as a contract, the franchise is the written agreement between the parties on the subject. Had we been able to agree with the defendant's counsel that the right to take tolls is not derived from the franchise, but is, in the language of Mr. Justice Strong, an attribute of ownership, we are inclined to think that we might have ruled this point differently; but we have to do here with the right under the franchise, not with a right which might have existed without the franchise. . . . The right of the corporation here to take tolls at discretion being thus fixed by express franchise in their charter, there seems to us to be no room for doubt that, viewing the charter as a contract, the franchise is a positive grant to take tolls in the manner and to the extent prescribed by it, subject to such judicial construction and control as it may bear; and is a vital part of the contract within the authorities."

We

"We are not considering the charter as a mere statute. We are considering it, in obedience to the Dartmouth College rule, as a contract. are not giving our own views of its effect. We are looking at it in the mirage of federal construction."

The reasoning of the learned judge is somewhat peculiar. Without any franchise the defendants possess," as an attribute of ownership," the right to charge compensation for the use of their property; but because, ex abundanti cautela, they obtain from the state in their charter an express contract and warranty that they shall have that right, and exercise it with the positive assent of the state, and subsequently the state chooses to repu

diate that contract, they lose the right which would remain in full force if the state, unfortunately, had not expressly assented to it, and solemnly contracted that it should remain unimpaired. If the charter had been silent, they would have been safe; but because the state guaranteed them in an executed contract, the state acquires the power, by voluntary rescission of that contract, to annihilate the original "attribute of ownership."

This doctrine can hardly be attributed to the "mirage of federal construction," unless that mirage is caused by the peculiar condition of Wisconsin atmosphere, and the singular refraction which affects the eyes of the court when they look at the decisions of the Supreme Court of the United States. The "contract" is binding only on one party, a sort of "heads I win, tails you lose" bargain. The charter absorbs all previous rights, so that the “attributes of ownership" are swallowed up in it; and then the "reserved power" allows the state to swallow the charter, "attributes of ownership," and every thing but the iron rails. Substantially, the learned judge insists that the franchise is a contract with the state which binds the corporation, and in which the corporation has merged all its rights; but that the state is wholly free to take away all those rights, and to require the corporation to perform all the duties which it implies. He insists that the franchise is at once a valid contract as to its obligation on the corporation, but a mere revocable license as to the state. And this astonishing result is attained through the "reserved power" clause.

But the court, notwithstanding its sound ideas about grumbling, then indulges in the following language : -

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Considering this matter of purely state law and state polity, we are sitting in vinculis, bound by an interpretation of the prohibition in the Federal Constitution, on a subject with no federal relation, which we think it ought not to bear, and which, it is admitted, it was not intended to bear, but which, while it stands, emasculates state authority over state corporations. We are sitting on this question of state law and state polity, not so much as the Supreme Court of Wisconsin as an inferior federal court; and we are bound on this subject to rule, not as we think, but as the Federal Supreme Court thinks. The adjudications of this court on state law and state policy, having no possible relation to federal law or federal policy, have been frequently overruled by that court, without excuse found in the Federal Constitution. We do not mean to give an opportunity now, with excuse. On this point we admit, and defer to their authority."

They therefore hold that a corporation organized under a territorial charter, accepted before the adoption of the state constitution, was protected under the United States Constitution against the modification of its charter by the new law.

In conclusion the court say:

"We have held that here is positive violation of positive public law, to positive public injury, and that we have jurisdiction of this writ, as a prerogative writ, to restrain it. There is no room for discretion. The duty is positive ex debito justicia. The discretion which we were urged to exercise would be discretion to permit the violation of the laws which we sit here to enforce."

They therefore ordered the injunction to issue, but required the Attorney-General to dismiss his informations in the nature of quo warranto, as he should not have both remedies at once.

Upon the issue of these injunctions, the railroad companies conformed to the order of the court, and the legal contest ceased in Wisconsin. The curtain will rise upon the last act of the drama in Washington, when the appeals from the Circuit Court of the United States for the Western District of Wisconsin come on for argument before the Supreme Court of the United States. An effort was ineffectually made to advance them on the docket in October; but it was then said they might be heard in the present month.1

Commending this precedent in chancery practice to the special ⚫attention of the friends of prohibitory liquor legislation, as an additional screw upon the rumsellers where they may be found "in positive violation of positive public law, to positive public injury," and suggesting to the friends of virtue generally that a comprehensive injunction upon all wrong-doers may be a good way to forestall the criminal courts of their business in fines and penalties, we will consider how the Potter Act will stand when it is brought before the bar of the great tribunal in Washington.

What is the Potter Act in fact and practical working? Venturing, with all due submission, to differ from the learned Chief Justice of Wisconsin, we affirm that it is, in effect, whether viewed as a sweeping amendment of all the special railroad charters in the State of Wisconsin or as a general law,

1 No. 459, Piek et al. v. The Chicago & North-western Railway Co. et al.; No. 482, Lawrence et al. v. Paul et al.

First, An unprecedented system of discrimination and unequal legislation, gigantic in its effect. This would be plain enough if this law continued in force ten years. What business man on the roads in Class C could live, when he had to pay one-third more freight than his rival on Class A? All the discrimination against localities which has ever been charged upon all the railroads, is insignificant in comparison with the oppression this law heaps upon the people of Wisconsin, by favoring great belts of country at the expense of other towns and counties. Its unequal tariffs on railroad companies are of trivial importance compared with its monstrously unfair, local favoritism. If it were preserved unchanged for ten years, it would kill the business of towns now flourishing, depreciate farms, and wellnigh make whole counties deserted. The margins of profit in business are altogether too small to make business possible to be done at such odds as would exist along all the railroads in Classes B and C. It is class legislation, grossly unequal in its bearing upon people and corporations alike.

Second, It is, in common acceptance of terms, substantial confiscation, the technicalities of the Supreme Court of Wisconsin to the contrary notwithstanding. It requires the railroads to carry freight and passengers. It takes away, in principle, the right to charge any compensation therefor; for the precise rates. at present established are immaterial. In the terse language of Judge Hoar, "If this law is constitutional, I can see no reason why a law compelling the railroad company to carry passengers gratuitously, or to pay them for riding in the cars, would not be." It establishes a principle, which takes from the owners all possibility of using their propety to advantage; and that is, in common language, confiscation.

1

Such being the actual effect of the Potter Act, it is, for our purpose, entirely unimportant that its operation during the past few months has made certain its speedy repeal or essential modification this winter. The principle involved is vastly more important than the practical working of this particular law, which evidently will be so short-lived; and it is only in its purely legal aspect that we consider it here.

Some of the questions which were open at first, are now closed by this decision of the Supreme Court of Wisconsin, affirming the constitutionality of this act under the constitution of that state.

Resting their decision upon " the reserved power" to alter and repeal all charters, and treating the Potter Act as merely an amendment of special charters, not as a general law, they have conclusively established, before the Supreme Court and all other tribunals, its validity under the Constitution of Wisconsin, whether their decision be right or wrong.1 Suggestions, therefore, as to the unconstitutionality of unequal and class legislation upon principles of general constitutional law, become immaterial now. They have been rejected in the only forum where they could be effectively urged. The Supreme Court will not revise a state statute on any ground of justice, policy, or consistency with a state constitution, but will only inquire whether it violates the Constitution, treaties, or laws of the United States.2

Its validity, also, so far as the prohibition against taking private property for public use without just compensation therefor, which is found in the fifth amendment to the Constitution of the United States, and in Art. I. 13, of the Constitution of Wisconsin, is concerned, can no longer be denied.

It never was an open question under the fifth amendment. The decision of Chief Justice Marshall in Barron v. Mayor of Baltimore defined the limitation of that clause forty years ago:

"The provision in the fifth amendment to the Constitution, declaring that private property shall not be taken for public use without just compensation, is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the States."

That construction has since been emphatically affirmed in Withers v. Buckley, and is settled and familiar law.

The only questions which are open for discussion at Washington seem to be the validity of this enactment,

First, under the prohibition upon the states to pass any law impairing the obligation of contracts (Art. I. 10), and

Second, under the provision that no state shall "deprive any person of life, liberty, or property without due process of law" (Amendment XIV. 1).

The first question involves not only the topics so fully and 1 Webster v. Cooper, 14 How. 488.

2 Carpenter v. Pennsylvania, 17 How. 456; Elmendorf v. Taylor, 10 Wheat. 159., 3 7 Pet. 243. 420 How. 84.