famous Dartmouth College decision was principally relied on.

3d. Charging a greater compensation for transporting persons and property a shorter distance than for a longer one is not necessarily unreasonable or an unjust discrimination. In support of this, it was alleged that in the case in dispute the toll to Lexington was reasonable, and that the toll to Bloomington was too low, but that no one was injured thereby save the company. Examples were given of many cases before the English courts where companies had been upheld in similar cases.

4th. The judicial department of the government has the sole authority to determine between the public and the appellant what rates are reasonable and what are unreasonable, and what discriminations are just and what are unjust.

5th. The power of the General Assembly to pass all such laws as are necessary to promote the health, safety, morals, good order, and general welfare of the inhabitants of the State, did not authorize the passage of the Act of April 7, 1871.

DECISION OF THE SUPREME COURT-THE LAW UNCON

STITUTIONAL.

In rendering its decision, the Supreme Court first quoted from the constitution of the State of Illinois, as follows:

"The General Assembly shall pass laws to correct abuses and prevent unjust discrimination and extortion in the rate of freight and passenger tariffs on the different roads in this State, and enforce such laws by adequate penalties, to the extent, if necessary for that pur、 pose, of forfeiture of their property and franchises." Art. XI., Sec. 15.

The court argued that the discrimination forbidden by the common law, and by the constitutional enactment in accord

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ance therewith, was against unjust discrimination, while the law under consideration was directed against all discriminations, whether they could be shown to be unjust or not. The decision continues:

This provision, expressly directing the Legislature to pass laws to prevent unjust discrimination, is a recognition of the palpable fact that there may be discriminations which are not unjust, and by implication it restrains the power of the Legislature to a prohibition of those which are unjust. That was undoubtedly the object of the Legislature in passing the existing law. This is clearly shown by its title. But the act itself goes further. It forbids any discrimination whatever, under any circumstances whatever, and whether just or unjust, in the charges for transporting the same classes of freight over equal distances, even though moving in opposite directions, and does not permit the companies to show that the discrimination is not unjust. The mere proof of the discrimination makes out a case against the railway companies, which they are not allowed to meet by evidence showing the reason or propriety of the discrimination, and then, upon this sort of ex-parte trial, imposes as a penalty for the offense a forfeiture of the franchise, which would often be equivalent to a fine of millions of dollars. The object of the law is commendable, but such a proceeding, to be followed by such a penalty for the first offense, can not be sustained. It could only have been authorized through the inadvertence of the Legislature. The law as it now stands makes an offense out of an act which might be shown not to be an offense, but an exercise of a wise discretion really beneficial to the people of the State; and, while debarring the companies from all right of explanation, confiscates their franchises upon the first conviction. The Legislature can not raise a conclusive presumption of guilt against a natural person from any act that may be innocent in itself, taking from him the privilege of showing the actual innocence or propriety of the act, and confiscating his property as a penalty for the supposed offense. Those provisions of our constitution which forbid the deprivation of life, liberty, or property, except by due process of law, and which guarantee the right of trial by jury "as heretofore enjoyed," and the right in all criminal prosecutions to appear and defend in person and by counsel, would all be violated by such a law.

These provisions, it is true, are designed to apply only to

natural persons; but artificial persons must be permitted to invoke the spirit of justice which prompted them, so far as may be necessary to protect their property and franchises against the operation of a law that substantially condemns without a trial.

The opinion of the court is, that while the Legislature has an unquestionable power to prohibit unjust discrimination in railway freights, no prosecution can be maintained under the existing act until amended; because it does not prohibit unjust discriminations merely, but discrimination of any character, and because it does not allow the companies to explain the reason of the discrimination, but forfeits their franchise upon an arbitrary and conclusive presumption of guilt, to be drawn from the proof of an act that might be shown to be perfectly innocent. In these particulars, the existing act violates the spirit of the constitution.

The judgment of the Circuit Court, ousting the appellant of its franchises, must therefore be reversed.

The court advised further, that before this act could be enforced it must be so amended as to correspond with the requirements of the constitution, by directing its prohibition against unjust discriminations. The court did not question the power of the State to regulate railway rates; and, furthermore, it expressed an opinion as to what is or is not a discrimination, which is of much importance:

If a farmer, living three miles from the Springfield station, upon this company's road, is charged fifteen cents per bushel for shipping his corn to Chicago, is it just that a farmer living twenty miles nearer Chicago should be charged a higher sum? Certainly not, unless the railroad company can show a peculiar state of affairs to justify the discrimination, and this must be something more than the mere fact that there are competing lines at one point, and not at the other. The discrimination, in such a case, is as much a discrimination between Individuals as it would be in reference to two persons living in the same locality, and shipping at the same station, unless, as before stated, a satisfactory reason can be given for discrimination between the points of shipment; and such a reason, in the case supposed, it is not very easy to conceive.

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The only issue to be made under a law properly framed would be whether there was an unjust discrimination or not. If on the trial of such an issue the prosecution proves a permanently established discrimination, like that disclosed by the present record, and the company can show no other reason for it than the existence of a competing line at the favored points, the defense must be held unsatisfactory, notwithstanding witnesses may testify that they believe, as a matter of theoretical opinion, that the rates to Lexington are reasonable. They can not be reasonable, and the discrimination must be unjust, if the lesser rates for the greater distance have been established merely because the company has ceased to exercise at that point a practical monopoly.

CHAPTER XXV.

THE NEW ILLINOIS RAILROAD LAW AND ITS WORKINGS.

THE RAILROAD COMMISSION SQUABBLE.

The existing railroad law of Illinois having been pronounced unconstitutional, and the Legislature being at the time in session, the amendment of the act was immediately and diligently set about; in fact, so diligently as to excite the apprehension among the farmers that their legislators were going to "talk the subject to death." This feeling began to strengthen as measure after measure was mooted, yet always put aside. The Springfield Convention, of which a condensed report has already been given, was called with a view of enlightening the Legislature as to the earnestness of the popular desire for an efficient law.

About this time (March, 1873) the term of office of the Railroad and Warehouse Commissioners expired. The farmers began agitating for the appointment to the office of persons identified with agricultural interests. Governor Beveridge, however, nominated Messrs. McCrea, Robinson, and Stilwell-one of whom is a banker, another a lawyer. This raised a storm about the Governor's ears which he will not readily forget. Protest after protest, memorials and resolutions without end, were sent in, and the Governor, wisely yielding to the pressure, finally conferred the vacant offices