Attorney General v. Chicago & Northwestern Railway Co.

35 Wis. 425

• Court: Wisconsin Supreme Court
• Decided: June 15, 1874
• Status: Published

Opinions

■Ryan, C. J.

These causes, although before the court now on motion only, are of high importance, for both the interests and the principles which they involve. Most of the questions to be passed upon were elaborately argued with much learning and ability at the bar, and all have been patiently and laboriously considered by ns, in view of the gravity and delicacy of the decision which we have to make.

I I. The first question to be settled, and the one which has given us the greatest difficulty to settle, is the jurisdiction of this court to entertain the informations in these causes.

Since the case of Attorney General v. Blossom, 1 Wis., 817, the original jurisdiction of this court under the third clause of sec. 3, art. VII of the constitution of this state, has never been doubted in this court, has- been- recognized and asserted in many cases, and is no longer an open question. This original jurisdiction is conferred and limited by the power “ to issue writs of habeas corpus, mandamus, injunction, quo warranto, cer-tiorari, and other original and remedial writs, and to hear and determine the same.” The court has many times exercised original jurisdiction in cases of habeas corpus, mandamus, quo warranto and certiorari. This is the first time it has been called upon to assert original jurisdiction of injunction. In the case of Cooper v. Mineral Point, 34 Wis., 181, application was made to this court to -issue a writ of injunction in a cause pending in the circuit court. The court disclaimed jurisdiction to grant the writ in a cause- not in this court, under either its appellate or original jurisdiction ; but took occasion -to assert its jurisdiction to issue the writ in a proper case commenced in this court, as an exercise of its original jurisdiction. But in neither of these cases, nor — so far as we are aware — in any other case, has it been considered what are the nature and limits of the original jurisdiction conferred on this court in cases of injunction, or how that jurisdiction is to be exercised. And indeed the distinction between the writ of injunction and the other writs granted, seems to have been -overlooked in discussions which had relation chiefly to the nature and functions of those other writs.

In Attorney General v. Blossom, Smith, J., speaking of the group of writs given to the court, says that “ this class of writs, it would seem, appertain to and are peculiarly the instruments of the sovereign power, acting through its appropriate department, prerogatives of sovereignty,” etc. He calls them indiscriminately original and prerogative writs; and says that they “ differ essentially, in tbeir character and objects, from ordinary writs issued by the courts in the regular and usual administration of the law between parties. They go to accomplish peculiar and specific objects, carrying with them the special mandate of the sovereign power, etc. They bear no resemblance to the usual processes of courts by which controversies between private parties are settled by the judicial tribunals of every grade.” He speaks particularly of the writs of certiorari and injunction as “ remedial writs of a high judicial character, and essential to the complete exercise of the function of sovereignty in the administration of justice.”

Substantially correct of all the other writs named, this language does not appear to be accurately used of the writ of injunction. At common law, all the other writs given were prerogative writs, issuing on behalf of the state only; and though sometimes used for private remedy, were so used on special leave given, and in the name of the state, and were not ordinary writs applicable to private controversies or issuable of course. All the other writs must or might be original; as given to this court they must be original writs, in the modern and practical sense of the term original writs. The writ of injunction was not original. They are, as given, essentially jurisdictional writs, implying the jurisdiction granted, in each case, ex vi termini. The writ of injunction was not an original writ, and by itself, as given, implies no specific jurisdiction. It was a judicial writ, going only upon some judgment, interlocutory or final, of the court issuing it, in some case of which the court had jurisdiction otherwise; never jurisdictional, but always remedial in aid of jurisdiction- already attached, within the vast range of equitable cognizance. And the difficulty arises wholly from placing this non jurisdictional writ in a group of jurisdictional writs; this judicial writ amongst original writs; this equitable writ of vague and ' varied application amongst •common law writs of sharp and terse significance ; this confusion of equitable and legal jurisdiction. In Attorney General v. Blossom, tbe jurisdiction in question was quo tvarranto. Ancf elaborately as tbe question was discussed by the able judge-who wrote the opinion, he seems to have followed the framers-of the constitution in a want of perception that the writ of injunction appeared to be illy grouped with habeas corpus, man damns, quo warranto and certiorari, and that the court might be-troubled some day, as it has been now, how to take jurisdiction-of a writ not before jurisdictional; how to hear and determine a writ not before original.

The common law, which gave the original writs adopted by-' the constitution, gave the forms of procedure. The jurisdic tion of them, once ascertained, involved nothing difficult, noth ing new; and when they were under consideration, the original-jurisdiction of the court was easily asserted and discussed. It was natural.that the court should overlook, it was fitting that the. court should postpone, the difficulty arising on original-jurisdiction of injunction, until the writ itself should be applied for, and a proceeding taken to put its original jurisdiction of the writ in motion. And the questions are now here, for the first time, for settlement, What is that jurisdiction ? What are-its import' and limits ? How and at whose instance is it to be asserted ? The writ does not of itself, like the rest of the group-of writs given, furnish an answer to these questions.

From the beginning of the discussion of these motions, this-difficulty stared us in the face, and we called on the bar for a solution of it. On the one side, we were first told that the writ gives this court general equitable jurisdiction, in all cases, between all parties, where injunction is prayed; thus substantially making this court one of general equitable jurisdiction, concurrent with all the circuit courts of the state. Later in the discussion an attempt was made to limit this interpretation to-cases in which perpetual injunction is the sole relief sought. The latter construction is hardly consistent with the indisposition of a court of equity to be the handmaid of other courts, or the general maxiin that a coart of equity, having once obtained jurisdiction for one purpose, will retain it for all purposes ; or if consistent, not very available as a limitation. And an original equitable jurisdiction, however restricted, of purely private causes, concerning private interests, between private persons, would be wholly inconsistent with the manifest policy of the constitution to limit this court to appellate jurisdiction, superintending control over inferior courts, and original jurisdiction in certain causes publici juris, as is held in Attorney General v. Blossom. It would be a gross blemish upon the symmetry and economy of the constitutional distribution of jurisdiction, a solecism against the judicial order observed in it, to-attribute to the supreme court of the state original jurisdiction in one class of causes of private right, which is carefully excluded in all other causes, for no inherent distinction ; for no-assignable reason, except that it seems to follow from words used for a different purpose; a purely accidental and incongruous jurisdiction, which was surely not designed. (See the cases in Missouri cited infra.) We could not accept so vicious and mischievous a construction, resting really upon an imputation of an inaccurate use of terms in the constitution; and which after all does not fully meet the difficulty of jurisdiction given of a nonjurisdictional writ.

On the other side it was suggested that the writ of injunction does not go at all to the original jurisdiction of the court; and that it is inserted where it is, in aid of the appellate or superintending jurisdiction of the court. This construction is properly rejected in Attorney General v. Blossom. The framers of the constitution appear to have well understood that, with appellate jurisdiction, the court took all common law writs applicable to it; and with superintending control, all common law writs applicable to that; and that, failing adequate common law writs, the court might well devise new ones, as Lord Coke tells us as “ a secret in law.” Hence the constitution Dames no writ for the exercise of the appellate or superin tending jurisdiction of the court.

* But the original jurisdiction depends on the writs given, and hence the group of specific writs. The injunction given, mean what it may, appertains therefore to the original jurisdiction of the court.

Again we were told that the writ of injunction was inserted in the class of original, writs ex abundanii- cautela, where it does not fit, where it performs no office, where it stands mere sur-plusage, signifying nothing, nudum, verbum. We might sympathize with this way out of the difficulty, but we cannot accept it. We cannot so deal with the charter of this court. We cannot so dispose of a jurisdictional word. Even in ordinary phrases, in an ordinary statute, dealing with an ordinary subject, verba aliquid operan debent, cum effectu sunt accipienda. And surely we cannot, in the constitution which creates the court, reject as superabundant and unmeaning an independent, jurisdictional word, manifestly inserted for the purpose of imposing a distinct duty on the court, only because we find it difficult to apply it. We must hold that the grant of the writ had a definite purpose. This is proved by the independent use of the word, rarely appearing in such a grant of jurisdiction. We may say that we have found it difficult to define the purpose; but if we should find it impossible to interpret the organic law of the court, we might not unjustly be held to confess our unfitness for this place.

Receiving from the bar no solution of the difficulty which we could accept, we have patiently considered it, seeking light from the constitutional grant of jurisdiction itself, from the previous discussions of this court and from the discussions of other courts on kindred subjects; steadfast to accept or reject jurisdiction of these causes, as our duty might be ; and as far as we should be able, and as far as might be necessary to our decision, to ascertain and define the jurisdiction in question for the future guidance of the court and the profession, until our construction should be modified or changed by our successors.

All the other writs of the group are common law writs. The writ of injunction, when the constitution was adopted, was exclusively an equitable writ, used only by courts of chancery. As such it was given to this court, implying and carrying with it equitable jurisdiction to employ it. It is therefore plain that the original jurisdiction of this court is both legal and equitable, within certain limits; legal for the use of the common law writs; equitable for the use of the chancery writ. The use of the former must be according to the course of common law courts. The use of the latter, according to the course of courts of equity; in each case, subject to statutory modifications of the practice, which do not impair the jurisdiction granted. The common law writs, as already observed, imply and define the jurisdiction appurtenant to them, as jurisdictional writs. It is otherwise with the writ of injunction. Equity has no jurisdictional writs. By the course of courts of equity, the jurisdiction must precede the writ. And though the writ is the end of the equitable jurisdiction implied, the scope of the jurisdiction must be sought mainly outside of the writ itself. It can issue only after bill or information filed. And the question still remains, what is the original equitable jurisdiction conferred on the cour-t, of bills or informations, dependent on the use of the writ.

The grant of original jurisdiction is one entire thing, given in one general policy, for one general purpose, though it may have many objects and many modes‘of execution. So it is of the appellate power. So it is of the superintending control. There are three independent and distinct grants of jurisdiction, each compact and congruous in itself ; each a uniform group of analogous remedies, though to be exercised in several ways, by several writs, in legal and equitable proceedings, on many objects, in great variety of detail. The constitution wisely, almost necessarily, stopped with the general grants of j urisdietion, carefully distinguished, and left details to practice and experience.

The grant is to the supreme court of the state, in the full significance of that term given in Attorney General v. Blossom ; designed to have a general judicial oversight of the state in all its interests, public and private. To this court, as such, are given general appellate jurisdiction and superintending control over all other courts throughout the state, because these are essential to the judicial supremacy of the court in all ordinary litigation; and original jurisdiction of certain writs, “because they are designed for the very purpose of protecting the sovereignty and its ordained offices from invasion or intrusion, and also to nerve its arm to protect its citizens in their liberties, and to guard its prerogatives and franchises against usurpation.'’ This is the language of the court in Attorney General v. Blossom, which we adopt and approve as applicable to the question before us. And it tends to show, as the whole opinion in that case shows, that the three grants of jurisdiction proceed on one policy: appellate jurisdiction to decide finally all ordinary litigation; superintending jurisdiction overall other courts to control the course of ordinary litigation in them; and, outside of these, original jurisdiction of certain proceedings at law and in equity, to protect the general interests and welfare of the state and its people, which it would not do (to quote Smith, J., again) to dissipate and scatter among many inferior courts. Here are three jurisdictions, but one policy: to make this court indeed a supreme judicial tribunal over the whole state; a court of last resort on all judicial questions under the constitution and laws of the state; a court of first resort on all judicial questions affecting the sovereignty of the state, its franchises or prerogatives, or the liberties of its people. Attorney General v. Blossom.

The other courts may, indeed, adjudicate public as well as private questions; and the appellate and superintending jurisdiction of this court may therefore reach public as well as private interests. But the framers of tlie constitution, for greater security, added to these original jurisdiction over great public interests, for reasons already assigned. In a government like ■ours, public rights of the state and private rights of citizens -often meet, and may well be involved in a single litigation. So it may be in the exercise of the original jurisdiction of the •court. But it is safe to say that the constitution is content to intrust purely private rights to the appellate and superintending jurisdictions given, and to have granted the original juris•diction of this court for the better and prompter and more authoritative protection of public interests. This is its primary .and controlling object and character.

This is very plainly implied by the grant of the writs of .habeas corpus, mandamus, quo luarranto and certiorari, as is well reasoned in Attorney General v. Blossom. And, plainly recognizing the intention of the constitution to vest in this court one jurisdiction, by several writs, to be put to several uses, for one ■consistent, congruous, harmonious purpose, we must look at ■the writ of injunction in the light of that purpose, and seek its use in the kindred uses of the other writs associated with it. .Noscitur a sociis is an old and safe rule of construction, said to have originated with as great a lawyer and judge as Lord Hale, ■peculiarly applicable to this consideration. Lord Bacon gives •the same rule in a more detailed form, more emphatic here. Copulaiio verborum indicat acceptalionem in eodem sensu. Here .•are several writs of defined and certain application classed with ■one of vague import. We are to be guided in the application •of the uncertain, by its certain associates. The joinder of the doubtful writ with the defined writs operates to interpret and restrict its use, so as to be accepted in the sense of its associates ; so that it and they may Harmonize in their use, for the •common purpose for which it is manifest that they were all given. And thus, in this use and for this purpose, the constitution puts the writ of injunction to prerogative uses and makes it a quasi prerogative writ.

There is the less difficulty in reaching this construction, and giving definite meaning to the jurisdiction of injunction, because of the very contrast between this writ and mandamus. The latter commands. The former forbids. Where there is nonfeasance, mandamus compels duty. Where there is malfeasance, injunction restrains wrong. And so near are the objects of the two writs, that there-is sometimes doubt which is the proper one; injunction is frequently mandatory, and mandamus sometimes operates restraint. In these very motions it was argued on one side that the remedy of the state is by mandamus, on the other that it is by injunction. And it is very safe to assume that the constitution gives injunction to restrain excess, in the same class of cases as it gives mandamus to supply defect; the use of the one writ or the other in each case turning solety on the accident of over-action or shortcoming of the defendant. And it may be that where defect and excess meet in a single case, the court might meet both, in its-discretion, by one of the writs, without being driven to send out both, tied together with red tape, for a single purpose.

This view excludes jurisdiction of injunction in private suits-, between private parties, proceeding on private right or wrong. In excluding them, we feel quite assured that we are only giving effect to the very purpose and limit of the constitution in the grant of jurisdiction. And we were aided in arriving at this conclusion, by decisions of the supreme court of Missouri, in somewhat analogous cases, excluding original jurisdiction of causes of merely private interest. State v. Stewart, 82 Mo., 379; State v. Lawrence, 38 id., 535; Foster v. State, 41 id., 61; Vail v. Dinning, 44 id., 210; State v. Vail, 53 id., 97. In our view, the jurisdiction of the writ is of a quasi prerogative writ. The prerogative writs proper can issue only at the suit of the state or the attorney general in the right of the state ; and so it must be with the writ of injunction', in its use as a quasi prerogative writ. All may go on the relation of a private person, and may involve private right. It is the duty of the court to confine the exercise of its 'original jurisdiction to questions publici juris. And hereafter the court will require all classes of cases, as it has hitherto done some, in which it is sought to put its original jurisdiction in motion, to proceed upon leave first obtained, upon a prima facie showing that the case is one of which it is proper for the court to take cognizance.

Although the writ of injunction was at no time properly a jurisdictional writ, and it-has long been held tobe a judicial writ only, used to give effect to the general jurisdiction of courts of equity, yet in the early history of the English Chancery, the use of the writ rested on a jurisdiction of its own, borrowed from the Roman law by the churchmen who first sat in that court. 1 Spence, 668. And this early use of the writ as a quasi jurisdictional writ has aided us in giving to it the construction and use in the constitution, which we adopt.

We ought, perhaps, earlier in the discussion, to have indicated another section of article YII of the constitútion, which has aided our conclusion. Section 8 gives jurisdiction to the circuit courts, original in all matters, civil and criminal, within the state, not excepted in the constitution or thereafter prohibited by law, and appellate from all inferior courts and tribunals, and supervising control over the same, and also power to issue writs of habeas corpus, mandamus, injunction, quo war-ranto, certiorari and all other writs necessary to carry into effect their judgments, etc., and a general control over inferior courts and jurisdictions. A great jurisdiction, comprehending, as C. J. Stow remarked, in Putnam v. Sweet, the united powers of the English courts of the King’s Bench, Common Pleas, Exchequer and Chancery. The same writs are granted to those courts as to this. It is impossible for a lawyer to suppose that they are granted in the same sense and with the same measure of jurisdiction, to this court as to those courts. Such a proposition would shock the legal sense of any professional man. And the distinction is to be looked for, and is readily found, in the general constitution and functions of those courts and of this. The writs are given to the circuit courts as an appurtenance to their general original jurisdiction; to this court, for jurisdiction. Those courts take the writs with unlimited original jurisdiction of them, because they have otherwise general original jurisdiction. Other original jurisdiction is prohibited to this court, and the jurisdiction given by the writs is essentially a limited one. Those courts take the prerogative writs as part of their general jurisdiction, with power to put them to all proper uses. This court takes the prerogative writs for prerogative jurisdiction, with power to put them only to prerogative uses proper. The circuit courts take the writ of injunction with all the powers and uses of the English Court of Chancery. This court takes it as an integral element of its jurisdiction of prerogative writs. And it would be a rude and criminal emasculation of the judicial charter of the state, to disfranchise this court of all jurisdiction or use of injunction, as it would be a wild and reckless delusion, undiscerning the symmetrical distribution of judicial powers in the constitution, to attribute to this court the same jurisdiction and uses of the writ which the circuit courts have.

And so the difficulty which seemed so great, becomes so little, and is overcome, as difficulties often are, by being directly met and carefully examined. And thus we find that Smith, J., was more apparently than'really inaccurate in Attorney General v. Blossom, when he classed injunction with the other writs given, and called the whole group prerogative and original writs. Por, in our view of its use, the injunction given to this court seems to become a quasi prerogative writ, and founds jurisdiction as if it were an original writ. It is certainly competent for the constitution to give new writs, or to put old writs to new uses; to make any writ, by the use to which it puts it, prerogative or original; and to found jurisdiction on any writ, as in case of a prerogative or original writ. And this it appears to have clone, in effect, with the injunction which it gives to this court.

We therefore hold that this court has original jurisdiction of •an information on behalf of the state in the nature of an injunction bill in chancery, in all cases coming within the scope ■of the original jurisdiction conferred on this court by the third clause of section 3, article YII of the constitution, in which injunction is the appropriate remedial writ.

The original jurisdiction of the court by way of injunction being thus settled, no question was made on the argument, and it is not perceived how any could well be, of our jurisdiction to entertain the informations in these causes, if they make a case for equitable cognizance.

IT. But equitable jurisdiction of such informations was denied. It was argued that courts of equity have no jurisdiction, at the suit of the attorney general, to enjoin usurpation, excess or abuse of corporate franchises^

This question was argued very ably and 'at large, and has been carefully considered, although we have had no difficulty in coming to the conclusion that courts of equity have such jurisdiction, and that it is a very beneficial jurisdiction, almost ■ essential to public order and welfare, j

It was hardly denied that the English court of chancery entertains jurisdiction in such cases; and indeed the English books leave little room for such a denial.

But it was said that, in England, the attorney general has a right to elect his forum, legal or equitable. And it is so said in some of the cases. Attorney Gen’l v. Mayor of Galway, 1 Molloy, 103. But it appears to us that this logically follows, everywhere, upon equitable jurisdiction to restrain corporate violations of charters or other public law. In such cases there is always a remedy at law. The attorney general may proceed at law by quo warranto to forfeit the charter of the offending corporation; and, if there be a penalty, as often happens, he may sue for it at law. And the concurrent remedy by injunction inevitably gives the election imputed to the attorney general. And we see no reason why the attorney general here has not the same election. To deny him such an election is only another way of denying the jurisdiction.

The equitable jurisdiction precludes the objection that there is an adequate remedy at law. It admits the remedy at law, but administers its own remedy in preference, when the state seeks it in preference. It seems to proceed on the presumption 4that it may better serve the public interest to restrain a cor-yporation, than to punish it by penal remedies or to forfeit its £ charter; and that, in that view, the proper officers of the state should have an election of remedies. And we may as well say in this connection, that the jurisdiction to entertain these in-formations is wholly independent of an adequate remedy at law; and that, were that otherwise, we could not consider the informations in the nature of a quo warranto, pending in this court against these defendants, as an adequate remedy at law, which could be a substitute for or bar to the injunctions asked." Judgments of ouster on those informations might not only be of far more grave consequence to the defendants, but might be far less beneficial to the state, and less accordant with its policy, and altogether less equitable and proper, than the injunctions sought to restrain the defendants from doing what is alleged to work a forfeiture of their charters. Doubtless the court has power, in granting injunctions, to prescribe conditions controlling the action of the attorney general in the quo war-ranto cases. But if this court can enjoin, it can do so without regard to any remedy at law ; and the attorney general has a right of election to resort to the more lenient remedy of injunction, in preference to the harsher and more dangerous experiment of forfeiture. ,, t

It was further urged for the defendants, against the authority of the English cases, that the jurisdiction of the English chancery in such cases, rests largely on recent acts of parliament. And we were referred, in support of that position, to the Railway and Canal Traffic Act of 1854, and to the Common Law Procedure Act of the same year (17 and 18 Viet., ch. 31 and ch. 125). We have carefully examined these statutes, and Mr. Joyce’s comments upon them. We find that the former of them enlarged the powers of some of the common law courts, and gave them jurisdiction of certain summary proceedings, and the equitable writ of injunction for certain purposes, against railway and canal companies. The second of these acts gives some equitable powers, and the writ of injunction, in certain cases, to courts of common law. But we fail to discover that either of these statutes adds anything to the jurisdiction of courts of equity; In this connection we were led also to examine the Railway Act of 1840 (3 and 4 Viet., ch. 97), and the Railway Act of 1844 (7 and 8 Viet., ch. 85). Section 11 of the former of these two latter acts, and section 17 of the latter of them, the second of these sections being a substitute for the first, give certain authority to the Board of Trade to require the attorney general to proceed against railway companies for violation of legal dut}1-; and, upon such requisition, make it obligatory on the attorney general to take such proceedings. While the latter of these sections was in force, the attorney general filed an information in the court of chancery against a railway company for an injunction against acts within the letter and spirit of the section, without any requisition of the Board of Trade. On application for injunction, the vice chancellor says: /•

“ It is, however, contended that as the act of 7 and 8 Viet., ch. 85, sections 16, 17, prescribes a particular remedy in such a case, the attorney general cannot take proceedings otherwise than in accordance with that provision.

“This objection in truth involves the contention that this court has no jurisdiction to entertain the suit by the attorney-general, unless it is instituted under the circumstances mentioned in those sections.

“ The effect of tiróse sections is not to take away the right of the attorney general to file such an information at his discretion, although there is no certificate of the board of trade, or the jurisdiction of the court to entertain such a suit. The only effect is, that if the board of trade has certified to the attorney general, he is bound to act, and compel the railway company to-abstain from doing what is in violation of the law. In that particular case he can exercise no discretion : he must sue.”-

The information was sustained and the injunction issued. Attorney General v. Great W. Railway Go., 1 Drewry & S., 154.

We have been unable to find any English statute enlarging the jurisdiction of the court of chancery in such cases ; and we find all the English cases proceeding without reference to statutory jurisdiction. We find no room for doubt that this jurisdiction of English courts of equity is independent of all authority by statute, and has long been as well recognized as any ground of equitable jurisdiction whatever. And these views-are fully sustained by the case just quoted.

We cannot state the rule better than by taking it from the-excellent work of Mr. Brice, so recently given to the profession.

“ Under many circumstances, the court of chancery has, on public grounds, jurisdiction to prevent corporations acting in various ways, or contrary to the intent for which they have-been created. The public, however, must be represented in all applications relating to such matters, and this is done by the intervention of the attorney general. No single person, whether a member of the corporation in question or not, is able on his own account, and of his own motion, to call upon the court to interfere for his special protection. The wrong he complains of is not confined to himself; no right or privilege peculiar to himself is violated; the wrongs inflicted and the rights invaded affect the public, and the public, consequently, must be a party to the proceedings. The occasions upon which the court will exercise jurisdiction to restrain the doing of acts of this kind, seem to fall into the three following; "headsThe author then proceeds to give the three heads of jurisdiction at large, which are thus classed in his own words: “ 1st. When a corporation is abusing powers given for public-purposes ; 2d, or is committing a breach of trust; 3d, or is acting adversely to public policy.” We copy this last in full:

“ When any 'corporation is doing acts detrimental to the public welfare, or hostile to- public policy. The right of the-attorney general to interfere on these grounds was fully established in Attorney General v. Great North. Railway Company, where the defendants had engaged in an illegal trade in coals. It was objected that it was not competent for him to file an information. But Kindersley, V. C., said: ‘On this point I entertain no doubt whatever. Whenever the interests of the public are damnified by a company established for any particular purpose by act of parliament, acting illegally and in contravention of the powers conferred upon it, I conceive it is the function of the attorney general to protect the interests of the-public by an information; and that, when in the case of an injury to private interests, it would be competent for an individual to apply for an injunction to restrain a company from using its powers for purposes not warranted by the act creating-it, it is competent for the attorney general, in cases of inj ury to public interests from such a cause, to file an information for an injunction.’ ”

The writer then proceeds: “ The above being the grounds of the jurisdiction of the court of chancery in this behalf, the-next point is, when can the attorney general direct proceedings on behalf of the public ? He may do so whenever public interests have been damnified, or will manifestly be damnified, in the result, by transactions which are now talcing place. And it would seem from the judgment in Ware v. Regent's Canal Company (3 De Hex & J., 212, 228), that he may do-so when a corporation is going beyond its special powers, even though no definite injury has been done or is likely to be done to the public. Where there has been an excess of the-powers given by an act of parliament, but no injury has been occasioned to any individual, or is imminent and of irreparable consequences, I apprehend that no one but the attorney general, on behalf of the public, has a right to apply to this court to check the exorbitance of the party in the exercise of the powers confided to him by the legislature.” Brice’s Ultra Vires, 506-9.

The custom of courts of equity to interfere in such cases, at the suit of private parties, for private injuries, is quite old. It seems to have grown up out of the ancient jurisdiction to restrain waste and nuisance. We shall not attempt to trace it. It is recognized as an established jurisdiction by Lord Hardwicke in 1752 (Fishmonger's Co. v. East India Co., 1 Dickens, 163); and particularly as applied to corporations exceeding or abusing their franchises, by Lord Eldon in 1815. Agar v. Regent's Canal Co., Cooper, 77. In more recent times, as corporations have grown in number and power, cases applying this jurisdiction to them are very numerous. We cite a few at random : River Dun N. Co. v. North Mid. Railway Company, 1 English Railway Cases, 135; Blackburne v. Glamorgan Canal Navigation, 1 Mylne & K., 154; Coals v. Clarence Railway Company, 1 Russell & M., 181; Dawson v. Paver, 5 Hare, 415; Broadbent v. Imperial Gas Company, 7 De Gex, M. & G., 437; Ware v. Regent's Canal Company, 3 De Gex & J., 212; London & Brighton Railway Company v. Cooper, 2 English Railway Cases, 312.

The general grounds of jurisdiction, in favor of private persons as well as the public, are stated by Lord Eldon in Blackmore v. Glamorgan Canal Navigation. “ When I look upon these acts of parliament, I regard them all in the light of contracts made bj' the legislature, on behalf of every person interested in anything to be done under them ; and I have no hesitation in asserting that, unless that principle is applied'in construing statutes of this description, they become instruments of greater oppression than anything in the whole system of administration under our constitution. Such acts of parliament have now become extremely numerous ; and, from their number and operation, they affect so many individuals, that I apprehend those who come for them to parliament, do, in effect, undertake that they shall do and submit to whatever the legislature empowers and compels them to do; ”and that they shall ■do nothing else; that they shall do and forbear all that they ■are required to do and forbear, as well with reference to the interests of the public, as with reference to the interests of individuals. It is upon this ground that applications are frequently made,” etc.

And the jurisdiction is now clearly defined as having two branches: one on behalf of the state, for public wrong, and the other on behalf of private persons, for private wrong, arising from an excess or abuse of corporate franchise. Eelief against public wrong is confined to informations by the attorney general. Ware v. Regents Canal Company, 3 De Gex & J., 212; Brown v. Monmouth Railway and Canal Company, 13 Beavan, 32. And it has been held, on the other hand, that the attorney general cannot maintain information on the ground of mere private wrong. Attorney General v. Birmingham & O. Railway Company, 4 De Gex & S., 190, and 3 MacNaghten & G., 453. Though doubt is thrown upon this point by the later case of Ware v. Regents Canal Company, 3 De Gex & J., 212.

Be that as it may,'the authority of the English chancery to restrain corporate violations injuring or tending to injure public welfare, or to defeat public policy, at the suit of the attorney general, as stated by Mr. Brice, is now beyond controversy. Attorney General v. Johnson, 2 Wilson, 87; Attorney General v. Forbes, 2 Mylne & C., 123; Attorney General v. Eastern Counties Railway Company, 3 English Railway Cases, 337; Attorney General v. Great Nor. Railway Company, 4 De Grex & S., 75; Attorney General v. Sheffield Gas Company, 3 De Grex, M. & Gr., 304; Attorney General v. Great North. Railway Company, 1 Drewry & S., 154; Attorney General v. Mid. Kent Railway Co., 3 Chancery Appeal Cases, 100; Attorney General v. Cambridge Gas Co., 4 Chancery Appeal Cases, 71.

The grounds on which this jurisdiction rests are ancient ; but the extent of its application has grown rapidly of late years, until a comparatively obscure and insignificant jurisdiction has become one of great’magnitude and public import. The modern exercise of this jurisdiction has kept pace with the multiplication of great corporations in England. The cause may be found in the language of Lord Eldon already quoted, and the motive, in the language of Lord Cottenham three times repeated : “ I have before taken occasion to observe that I thought it the duty of this court to adapt its practice and course of proceedings, as far as possible, to the existing state of society,' and to apply its jurisdiction to all those new cases which, from the progress daily making in the affairs of men, must continually arise; and not, from too strict adherence to forms and rules established under very different circumstances, decline to administer justice and enforce rights for which there is no other remedy.” 1 Mylne & C., 559; 4 id., 141, 635.

In our day the common law has encountered in England, as in this country, a new power, unknown to its founders, practically too strong for its ordinary private remedies. The growth of great corporations, centers of vast wealth and power, new and potent elements of social influence, overrunning the country with their works and their traffic throughout all England, has been marvelous during the last half century. It is very certain that the country has gained largely by them in commerce and development. But such aggregations of capital and power, outside of public control, are dangerous to public and private right; and are practically^above many public restraints of the common law, and all ordinary remedies of the common law for private wrongs. Their influence is so large, their capacity of resistance so formidable, their powers of oppression ‘SO various, that few private persons could litigate with them; still fewer private persons would litigate with them, for the little rights or the little wrongs which go so far to make up the measure of average prosperity of life. It would have been a mockery of justice to have left corporations, counting their capital by millions — their lines of railroad by hundreds, and even, sometimes, by thousands of miles — their servants by multitudes — their customers by the active members of society— subject only to the common law liabilities and remedies which were adequate protection against turnpike and bridge and ferry companies, in one view of their relations to the public ; and, in another view, to the same liabilities and remedies which were found sufficient for common carriers who carried passengers by a daily line of stages, and goods by a weekly wagon, or both by a few coasting or inland craft; with capital and influence often less than those of a prosperous village shop keeper. The common law remedies, sufficient against these, were, in a great degree, impotent against the great railway companies — always too powerful for private right, often too powerful for their own good. It was in these circumstances that the English courts of equity applied their restraining jurisdiction at public or private suit, and laid on these great companies the strong hand of equitable control. And all England had occasion to bless the courage and integrity of her great judges, who used so ably and so freely and so beneficially the equity writ, and held great corporations to strict regard to public and private right. Every person suffering or about to suffer their oppression, by a disregard of corporate duty, may have his injunction. When their oppression becomes public, it is the duty of the attorney general to apply for the writ on behalf of the public. And in this country, where the judicial tone is less certain, it is refreshing to read the bold and true words of which English equity judges do not spare the utterance. One of these corporations having violated an injunction, Y. 0. Shad-WELL says : “ Considering then their conduct to be at once contumacious and otherwise illegal, to be wrongful against the plaintiff individually, wrongful against the Queen’s subjects at large, and of, I had almost said, scandalous example; whatever amount of inconvenience may be the consequence of acting against the defendants on this occasion, I think it right to deal with them according to their merits. The consequence may possibly be to stop the railway. I answer again that it ought to be stopped, for it passes where it does by wrong. The, directors of the company and their agents cannot, on this motion, at present, be committed to prison; but what can be, shall be done, to repress a daring invasion of public and private rights, maintained in open defiance of law, authority and order. Let a sequestration issue.” Att'y Gen. v. Great North. Railway Co., 4 De Gex & S., 93. A great example, of authority, in proper cases, for all American judges.

And it is not unimportant to observe that this broad English jurisdiction was well established and publicly recognized at the time of the adoption of our state constitution.

It was, however, strenuously denied that it had been adopted in this country or could be upheld by the current of American authorities.

We have not found this jurisdiction as directly and succinctly stated in American treatises as in English, although it is fully recognized by the best of our elementary writers. Judge Red-field says that “injunctions in courts of equity, to restrain railways from exceeding the powers of their charters, or committing irreparable injury to other persons, natural or artificial, have been common, for a long time, in England and this country.” 2 Redfield on Railways, 307. Nearly all the chapter of his work (ch. 39) from which we quote, is full of instruction on the question, and directly recognizes, especially in the valuable notes, the same jurisdiction of courts of equity in this country, both at the suit of private persons for private wrongs and of the attorney general for public wrongs, as that exercised bj1- the English chancery. Later in the chapter he says that the equi-, table jurisdiction by injunction goes upon the ground of nuisance. As, indeed, any intrusion upon public right is in the nature of pourpresture. The ancient jurisdiction to restrain nuisance, is perhaps the most direct ground of the modern jurisdiction under consideration. And the former is full}1-asserted as an American jurisdiction, as to remedies both by private persons and by the attorney general for the public. 2 Story’s Eq., §§. 920-928.

The remedy by injunction, at the suit of private parties, for private wrong, is recognized and enforced in a great number of American cases. Gardner v. Newburgh, 2 Johns. Ch., 162; Belknap v. Belknap, 2 Johns. Ch., 463; Couch v. Turnpike Co., 4 Johns. Ch., 26; Jerome v. Ross, 7 Johns. Ch., 315; Osborn v. United States Bank, 7 Wheat., 788; Bonaparte v. Camden & A. R. R. Co., Baldwin, 205; McArthur v. Canal Co., 5 Ohio, 139; Ross v. Page, 6 Ohio, 166; Mohawk Bridge Co. v. Utica & S. R. R. Co., 6 Paige, 554; Delaware & Md. R. R. Co. v. Stemp, 8 Gill & J., 479; Rowe v. Granite Bridge Co., 21 Pick., 344; Browning v. Camden & W. R. R. Co., 3 Green, 47; Jordan v. Phil., W. & B. R. R. Co., 3 Wharton, 502; Newburyport T. Co. v. Eastern R. R. Co., 23 Pick., 326; Bigelow v. Hartford Bridge Co., 14 Conn., 565; O'Brien v. Norwich & Wor. R. R. Co., 17 Conn., 372; Moorhead v. Little Miami R. R. Co., 17 Ohio, 340; Kean v Central R. R. Co., 1 Stockton, 401; Newhall v. Galeria & C. U. R. R. Co., 14 Ill., 273; Boston & L. R. R. Co. v. Salem & L. R. R. Co., 2 Gray, 1; Sanford v. R. R. Co., 24 Pa. St., 378; Bell v. Ohio & P. R. R. Co., 25 Pa. St., 161; Water Comm. v. Hudson, 2 Beasly, 420.

There are more cases to the same effect; an unbroken line (^decisions, of the most respectable authority, covering some i/half a century ; most of them going on excess or abuse of corporate franchise, and all fully sustaining equitable jurisdiction in case of private wrong. They seem to establish the jurisdiction of courts of equity in this country, as conclusively as it is established in England, of private suits to restrain private wrong arising from excess or abuse of power by corporations.

In such cases, public wrong may be considered only as an aggregation of private wrongs. And, the jurisdiction once established to enjoin private wrong, in each case, at the suit of the person wronged, it is almost a logical necessity to admit the other branch of the jurisdiction, to enjoin, at the suit of the state, such a general wrong, common to the whole public, as interests the state, and could be remedied by private persons by a vast multitude of suits only, burthensome to each and impracticable for very number; more conveniently, effectively and properly represented by the attorney general as pa-rens patria. But jmisdiction of informations of this nature has sometimes been denied here, courts of equity in this country, singularly enough, being sometimes more timid to control corporate power, and less willing to protect the public against corporate abuse, than the English chancery. In both branches of the jurisdiction, it proceeds as for quasi nuisance; and it is difficult to understand why the jurisdiction should be asserted as to private nuisance and denied as to public nuisance; why, for the same cause, individuals should have a remedy denied to the aggregate of individuals, called the public. But, as we remarked before, in this regard the judicial voice in America is less certain in tone than in England. We should be willing to follow the English rule, in this state, unless there were a preponderance of American authority against it. But fortunately we find this wholesome jurisdiction sustained here bv the great weight of authority, and, with modern experience, we deem it only a question of time when it must be universally asserted and exercised.1,1

In Bigelow v. Hartford Bridge Co., supra, Stores, J., takes occasion to say: “Indeed it is upon the ground of particular injury to the plaintiff, distinct from what he suffers in common with the rest of the public, that all applications for injunctions against what is a public nuisance are sustained. And there is no good reason why, apart from such special injury, relief should be granted in this mode at the instance of a particular individual. Courts of equity, in this respect, proceed on the principle which prevails in courts of law, that an action will not lie in respect of a public nuisance, unless the plaintiff has sustained a particular damage from it, and one not common to the public generally. To preserve and enforce the rights of persons as individuals, and not as members of the community at large, is the very object of all suits, both at law and in equity. The remedies which the law provides in cases where the rights of the public are affected, are ample and appropriate ; and to them recourse should be had when such rights are violated. The courts of equity in England will indeed sustain informations, not by individuals, but at the suit of the attorney general or the proper crown officer, for the purpose of abating public nuisances and what are termed pourprestures. That mode of proceeding has been, however, hitherto unknown here, and whether it would be tolerated in any case it is unnecessary to consider.” 14 Conn., 578.

This is not a very accurate statement of the jurisdiction, which does not go to abate, but to restrain, which is the very ground of it, as distinct from legal remedies. The court holds the jurisdiction in cases of private nuisance and of public nuisance inflicting particular injury, at the suit of an individual, and questions it at the suit of the state. It is not easy to comprehend why the remedy should avail against the less evil, and not against the greater; why equity should interpose to restrain what affects one person only, and refuse its protection against what affects all persons ; in the case of a public nuisance, restrain it at the suit of one whom it especially aggrieves, and refuse to do so for the public whom it equally aggrieves. The reason assigned signally fails; for remedies at law reach private as well as public nuisances.

If, in saying that the remedy by information in behalf of the ■state was hitherto unknown there, the court meant in Connecticut, it was probably correct; if in the United States, it was certainly mistaken.

Bigelow v. The Hartford Bridge Co. was decided in 1842. As earl}'' as 1834, the jurisdiction was entertained and asserted bj the court of chancery of New Jersey, in Attorney General v. New Jersey R. R. Co., 2 Green, 136. The chancellor says: “It would seem, at first, incongruous and improper for this court, to interfere in cases of public nuisance. The very fact that, nuisances of that character are offenses against the community, and necessarily savor of criminality in a greater or less degree, would seem to distinguish them as matters not proper to be dealt with by this court. But the jurisdiction of chancery, to a certain extent, in cases of public nuisance, appears to be admitted, although it has been very rarely exercised. It is asserted by lord Hardwick in Baines v. Baker, Ambler, 159; 3 Atkyns, 750; and is considered as existing by Lord EldoN, in the case of the Atttorney General v. Cleaver, 18 Yesey, 211. He speaks with caution on the subject, as though it were new but not disputed ground. Chancellor Kent, in Attorney General v. Utica Ins. Co., 2 Johns. Ch., 371, appears rather to question the jurisdiction; considering that the cases of pourpresture-which have often occurred in the Court of Exchequer on the equity side, differ in some important' particulars from a strict case of public nuisance. He seems to think that the case of Baines v. Baker, before Lord Hardwick, has been misunderstood. It was a bill filed by one individual against another, to stay building an hospital for people infected- with the smallpox, very near the homes of several tenants of the plaintiff. The court said, if it were a nuisance at all, it was a public nuisance ; that bills of that sort were founded on nuisances at common law, and if a public nuisance it should be an information in the name of the attorney general; and then it would be for-his consideration whether he would file such information or not. Chancellor KENT throws out a doubt whether it was not. meant that the attorney general might file an information in the King’s Bench. Such has not been held to be the meaning by English lawyers or courts, and it appears to me’their construction is the right one.”

This is feeble language compared with the English cases cited. It is certainly not true in our day, that the English courts rarely exercise the jurisdiction ; and the caution which the chancellor attributes to Lord EldON has long since passed out of the court. "It may be safely assumed that the chancellor of New Jersey who asserted the jurisdiction then, would be less timid in doing so now. ' But in that day he adds: “The very fact, however, that there may be a doubt on the subject by intelligent jurists, should be sufficient to induce caution on the part of this court. In cases of public nuisance there is an undisputed jurisdiction in the common, law courts by indictment, and a court of equity ought not to interfere in a case of misdemeanor, when the object sought can be as well attained in the ordinary tribunals.” And so, asserting the jurisdiction, he denied the motion.

In 1836, notwithstanding the cases presently noticed in 2 Johns Ch. and Hopkins, Chancellor Walworth asserted and enforced the jurisdiction in New York. The attorney general filed an information to restrain the defendant corporation, claiming a right so to do, from tapping a canal. The chancellor sustained the jurisdiction and the injunction, saying: “ This court has jurisdiction to restrain any pourpresture, or unauthorized appropriation of public property to private use, which may amount to a public nuisance, or may injuriously affect or endanger the public interest. And when the officers entrusted with the protection of such public interests, acting under the sanction of their official oaths, believe the intended encroachment will prove injurious to the navigation of the canals, private persons should not be permitted to interfere with the waters or embankments of the canals, contrary to law, upon a mere opinion, although under the sanction of an oath, that the intended trespass upon the public rights would not be an injury to the public.” Attorney General v. The Cohoes Co., 6 Paige, 133. In emergency, the New York chancery overlooked Chancellor Kent’s coy doubts and nice subtleties, and assumed the jurisdiction which he had involved in such learned obscurity.

In Georgetown v. Alexandria Canal Co., 12 Peters, 91, which was a bill to restrain the defendants from erecting a nuisance under their charter, decided in 1838, the supreme court of the United States thus state the jurisdiction:

“Were it even admitted that the canal company had exceeded the authority under which they are acting, nevertheless, as the Potomac River is a navigable stream, a part of the jus publicum, any obstruction to its navigation would, upon the most established principles, be what is declared by law to be a public nuisance. A public nuisance being the subject of criminal jurisdiction, the ordinary and regular proceeding at law is by indictment or information, by which the nuisance may be abated, and the person who caused it may be punished. If any particular individual may have sustained special damage from the erection of it, he may maintain a private action for such special damage, because to that extent he has suffered beyond his portion of injury in common with the community at large. Besides this remedy at law, it is now settled that a court of equity may take jurisdiction in cases of public nuisance, by an information filed by the attorney general. This jurisdiction seems to have been acted on with great caution and hesitancy. Thus, it is said by the chancellor in 18 Yesey, 217, that the instances of the interposition of the court were confined and rare. He referred, as to the principal authority on the subject, to what had been done in the court of exchequer, upon the discussion of the right of the attorney general, by some species of information, to seek, on the equitable side of the court, relief as to nuisances and preventive relief. Chancellor Kent, in 2 Johns. Oh., 382, remarks that the equity jurisdiction in cases of public nuisance, in the only cases in which it had been exercised, that is, in cases of encroachment on the king’s soil, had lain dormant for a century and a half; that is, from Charles I. down to the year 1795. Yet the jurisdiction has been finally sustained, upon the principle that equity can give more adequate and complete relief than can be obtained at law. Whilst, therefore, it is admitted by all, that it is one of delicacy, and accordingly the instances of its exercise are rare, yet it may be exercised in those cases in which there is imminent danger of irreparable mischief before the tardiness of the law could reach it.”

These views were adopted by the United States circuit court of Michigan, in the same year, on a bill for injunction against a nuisance. The court asserts both branches of the jurisdiction in equity, and says: “Mo individual has a right to prosecute for a public nuisance, in his own name or at his own instance, in this form of action, unless the nuisance be irreparably injurious to himself. The United States, through their law officer, might well ask to have this nuisance, if it shall be one, abated ; but the special and private injury to an individual is the-only ground on which he can ask relief against it.” Spooner v. McConnell, 1 McLean, 887.

And the same views were again recognized and affirmed by the supreme court of the United States, in 1851, in Pennsylvania v. Wheeling Bridge Co., 13 Howard, 518.

The same question came before the supreme court of Pennsylvania in 1854, at the suit of the attorney general against a railroad company to restrain them from filling up a canal in the construction of their road, under their franchise. The court says:

“ The boldness of this act seems almost like a studied test of the vigilance of the canal commissioners, and of the efficiency of the remedies which the state has provided for the prevention of injuries. It is hoped that the equity remedy, being.somewhat unusual and peremptory in its character, will not be applied to an act which does so little injury. But writs of capias, replevin, foreign and domestic attachment, estrepement, prohibition and habeas corpus, are quite as efficient and peremptory in their power, and most of them much more easily obtained, and yet they are common law writs. And estrepement applies to many of the same cases as injunction, and may issue without bail. And so it was once with the prohibition. In most of the cases, moreover, in which we hear this objection to the injunction, the common law allows more speedy remedy, for it permits the injured party to redress himself by driving off the wrongdoer.

“The argument that there is no irreparable damage would not be so often used by wrongdoers, if they would take the trouble to observe that the word ‘ irreparable ’ is a very unhappily chosen one, used in expressing the rule that an injunction may issue to prevent wrongs of a repeated and continuing character, or which occasion damages which are estimable only by conjecture and not by any accurate standard. 3 Railway Cases, 106, 345; 4 id., 186; 1 Sim. & Stuart, 607; 3 Atkyns, 21; 3 Johns. Ch., 501; 16 Pick., 525; 3 Wharton, 513. As this argument is generally presented, it seems to be supposed that injunctions can apply only to very great injuries ; and it would follow that he who has not much property to be injured, cannot have this protection for the little he has.

“ Besides this, where the right invaded is secured by statute or by contract, there is generally no question of the amount of damage, but simply of the right. He who grants a right cannot take it away, even on giving a better, without a new agreement for the purpose. 19 Eng. L. & E., 287; 16 Pick., 525; 4 Simons, 13; 8 Wend., 99; 8 Paige, 351; 2 Swanston, 253. And such was our decision in the late case of the Western Saving Fund Co. v. Philadelphia.

“ And so it is where the public rights are invaded. In the case of the Attorney General v. The Cohoes Co., 6 Paige, 133, there was an offer to tap the state canal for a mill purpose, and it was stopped by injunction, without any regard to evidence tending to disprove damage. And in Downing v. McFadden, 18 State R, 334, we justified the keepers of the public works in abating a house that encroached upon the embankment of a railroad, though a jury had found that it did no injury.

“ And when railroad companies or individuals exceed their statutory powers in dealing with other people’s property, no question of damage is raised when an injunction is applied for, hut simply one of the invasion of a right. 1 Railway Cases, 185; 4 Mylne & C., 254. And railway companies will not be allowed to exercise their discretion capriciously (1 Railway Cases, 288), but the court will supervise their discretion, as in seeing that they shall not take more land than is needed, nor take any land merely in order to get earth for embankments (1 id., 576; 4 Mylne & C., 116) ; and that they do not unnecessarily affect a mill-race by too small an arch over it. 1 Russell & M., 181; 2 Railway Cases, 280.

“ Railway companies must stand upon a strict construction of their chartered privileges. 21 State R, 22; 9 Beavan, 391; 2 Mann. & Granger, 134; 7 id., 253; 1 Railway Cases, 576; 3 id., 563; 21 Eng. L. & E., 620. With the immense powers that are freely and loosely given to them, this much restraint is essential to the protection of private rights. 1 Railway Cases, 154, 504, 636 ; 4 Mylne & 0., 120.

“ If they step one inch beyond their chartered privileges to the prejudice of others or of the stockholders, or offer to do any act without the prescribed preliminary steps, they are liable to be enjoined, irrespective of the amount of damage.” Commonwealth v. Railway Co., 24 Pa. St., 159.

There is no doubt or hesitation here. Time and experience had done their work; as the court says, referring to the English cases : “ Such at least is the practice elsewhere, and it may' be well for us to learn from the experience of others.” And the same doctrine is reaffirmed by the court, in 1867, in Sparhawk v. U. P. Railway Co., 54 Pa. St., 401.

The question came again before the New Jersey chancery and court of errors in 1853, upon information and bill to restrain a corporation from exercising their franchise by the erection of a public nuisance. The chancellor refused a preliminary injunction, but briefly and clearly asserted the jurisdiction. He says: “I have no doubt of the power of the court to interpose in this case by injunction; nor of the propriety of its exercising that peculiar jurisdiction, if, as alleged, the defendants, under and by virture of the power of the legislature, conferred upon the Patterson and Hudson River Railroad Company, to bridge the river Passaic, are obstructing the navigation of that river, in violation of the provisions of the act from which they derive their authority.”

The court of errors reversed the order of the chancellor and granted the injunction, stating the doctrine in the language of Story’s Equity. “ ‘In regard to public nuisances,’ says Justice Story, ‘the jurisdiction of courts of equity seems to be of very ancient date, and has been distinctly traced back to the reign of Queen Elizabeth. The jurisdiction is applicable not only to public nuisances strictly so called, but also to pourprestures upon public rights and property, as public rivers, etc.’ ” Att'y Gen. v. Hudson River R. R. Co., 1 Stockton, 526.

And again in 1855, upon an information and bill to restrain abuse of corporate franchise, Chancellor Halsted had allowed a preliminary injunction, in an opinion in which, after his few authoritative words in the case last cited, he tacitly assumes the jurisdiction. A motion for attachment for violation of the injunction was heard before Green, C. J., sitting for Chancellor Williamson, who had succeeded Chancellor Halsted and had been of counsel in the cause. Chief Justice GREEN reviews the merits of the case at great length, without a word said of jurisdiction, and sustains the information on the merits. He gives a second opinion on the merits, upon exceptions taken, with the same significant silence. Elmer, J., delivers the judgment of the court of errors on appeal, at some length, affirming the orders of the chancery, with the same tacit recognition of the jurisdiction, as one not to be doubted. An eloquent silence, following twenty-one years after the faltering opinion in Att'y Gen. v. N. J. R. R. Co., supra.

We can see nothing in conflict with these cases in the intermediate case of Att'y Gen. v. Paterson, 1 Stockton, 624, cited for the defendants, which is indeed a confirmation of the jurisdiction.

In 1865, in Pennsylvania, one corporation filed a bill against another to enforce the charter obligations of the defendant. The court holds that, suffering no special injury, the plaintiff could not maintain the bill; and thus, after much similar discussion, assigns the reason of the judgment; “It is plain, therefore, that a private individual may not, in the absence of a special right or special authority, vindicate the public for breach of duties owing to her alone. Nobody will doubt that he may enforce against public corporations, contracts and duties which they ought to perform towards himself; and, in doing this, sometimes the public interests are subserved, and this is all right. But it is his special interest that gives him the right to act. This might be enough for this case; but it may not be out of place to add that we have no doubt but the remedy by a bill for an injunction, sued out on the part of the commonwealth, by the attorney general, would lie against a company to compel them to observe their charter obligations. It would in this case be a substitute for a mandamus, and come within the power given to courts of equity to control corporations other than municipal.” Buck Mountain C. Co. v. Lehigh Coal & N. Co., 50 Pa. St., 91.

The same question came before the supreme court of Missouri, in 1873, upon an information in equity against a municipal corporation. Shepley, S. J., in delivering the opinion of the court, reviews the cases at great length, and sustains the jurisdiction. This is his general conclusion: “It seems to me that, both on principle and authority, this proceeding is maintainable; and that, while in case of private corporations, the courts of this country will sustain the conclusions arrived at in 2 Johns. Ch., 371, in 103 Mass., 138, and 104 Mass., 239, that the writ of quo warranto affords ample and efficient remedy for violation of its charter or misuse or abuse of its powers, and that therefore this form of proceeding will not lie, the powers of the state, through its proper legal officers, to restrain public corporations from a violation of the law will be sustained.” State v. Saline Co., 51 Mo., 350.

There is a strong presumption that the term private corporations, as here used, is intended to designate private trading corporations; and the term, public corporations, to include all quasi public corporations, whose relations with the public involve public interests and public questions. This is indicated by the cases in Massachusetts on which the distinction is rested, and the language of the court in those cases; and seems to follow from many other cases cited and commented on, which certainly do not confine the remedy to private corporations, in the sense in which these defendants are such. And, indeed, it is not easy to see how a private trading corporation could cause public injury by a mere abuse or excess of franchise, or otherwise than as a natural person might. This construction of J udge Shepley’s language is confirmed by the additional opinion of J udge Bliss, who discusses the question at some length, and recognizes no such qualification of the jurisdiction. He says:

“ How much more adequate the remedy that prevents the doing of any legal wrong, than those that are merely punitive, or that compel every tax payer to prosecute.” “ I am aware that the jurisdiction of a court of equity, by injunction, even to restrict a public nuisance, has been denied in Massachusetts under their statute (Hale v. Cushman, 6 Metc., 425), but it is established in England, and generally admitted in the United States; and the rule as to the proper plaintiff is, I believe, universal.”

And this is further confirmed by the dissenting opinion of WAGNER, J. He objects to the jurisdiction assumed, as injuriously affecting the rights of stockholders, which must mean those of quasi public corporations. And we feel safe in assuming that, so far as it is necessary here, this decision is in accord with the others cited on this point.

In our investigations of this question, we have carefully examined all the authorities cited at the bar and many others. It is probable that there may be others, which have escaped our attention. But we think that we have sufficiently shown that the jurisdiction has long been asserted and is very generally recognized in the United States. And, before leaving this review of the authorities sustaining the jurisdiction, we wish to quote the terse and comprehensive statement of its scope, given by the supreme court'of Pennsylvania: “This remedy extends to all acts that are contrary to law, and prejudicial to the interests of the community, and for which there is no adequate remedy at law.” Kerr v. Trego, 47 Pa. St., 292.

Two cases in Massachusetts were cited for the defendants, as denying the jurisdiction. They do not seem to us to do so.

. The Attorney General v. Salem, 103 Mass., 138, was an information in the nature of quo warranto against' a municipal corporation for failure of duty. The court holds that the remedy does not lie in the case, for reasons not pertinent here. It was, perhaps, a case for mandamus. Having so decided the case, Morton, J., adds:

“ But the plaintiffs urge that this proceeding may be treated as a proceeding for general relief on the equity side of the court. If the necessary amendments were made to change it into an information or a bill in equity, we are of opinion that it still could not be sustained. "Whether, in this state, in the absence of any express grant of jurisdiction, the attorney general can bring a bill in equity to redress any public wrong or grievance, need not be decided. It is clear that such a bill cannot be sustained for a private wrong. In this case, the grievance complained of is not a public wrong, in which every subject of the state is interested; and therefore cannot be redressed by a public prosecution or proceeding.”

This was only a refusal to pass upon the question, because the question was not before the court. The refusal certainly implies a doubt, very much such as that suggested by the supreme court of Connecticut. But the doubts even of such respectable tribunals cannot weigh against so much solid authority.

| The Attorney General v. Tudor Ice Co., 104 Mass.. 239, was an (information on the relation of a private person, to restrain the ’defendant from trading outside of its franchise. The court /says: “ The Tudor Ice Co. is a private trading corporation. / It is not in any sense a trustee for public purposes.. The acts j complained of are not shown to have injured or endangered any rights of the public, or of any individual or other corporation, \ and cannot, under any legal construction, be held to constitute ; a nuisance.” “ No ease is therefore made, upon which, according to the principle of equity jurisprudence and the practice of this court, an injunction should be issued upon an information in chancery.”

This disposes of the case. But the court proceeds to quote, ;with implied approbation, Att'y Gen. v. Utica Ins. Co., infra, and Att'y Gen. v. Reynolds, 1 Eq. C. Abr., 131; and to make this comment on later English cases : “ The modern English cases, cited in support of the information, were of suits against 'public bodies or officers exceeding the powers conferred upon them by law, or against corporations vested with the power of eminent domain, and doing acts which were deemed inconsistent with the rights of the public.”

Without stopping to consider the accuracy of this comment, we content ourselves with the remark that no doubt is implied of the jurisdiction of such informations as those now before this court.

After some particular comments on certain English cases, the :court proceeds to state the position of Massachusetts on this 'question, thus : “ However that may be, by our statutes the «general equity jurisdiction of this court is limited to cases where there is no plain, adequate and complete remedy at law, as well in suits by the commonwealth as those brought by private persons. Gen. Stat, ch. 113, sec. 2.”

This shows that the court seems to think their jurisdiction, in such cases, crippled by statute. And yet that court has, not only in the cases above cited, sustained private suits within the jurisdiction in question, but appears to have acted on the public branch of that jurisdiction in several cases. It is true that they are cases of nuisance, but they seem to us to be within the broad principles laid down in England and this country. Att'y Gen. v. Boston Wharf Co., 12 Gray, 553; Dist. Att'y v. Lynn & B. R. R. Co., 16 Gray, 242; Commonwealth v. Smith, 10 Allen, 448. The case in 16 Gray appears to us fully to support the jurisdiction of equity to restrain corporations from excess or abuse of franchise.

Other cases outside of New York were cited against the jurisdiction ; but on examination we cannot consider any of them as having bearing and weight upon the question. But the cases in New York require consideration.

In that state the authorities are conflicting, and do not appear to us to rest on distinct and settled principle. We have already cited several cases decided by Chancellor Kent and other judges, sustaining the private remedy in equity against nuisance, and one case sustaining the public remedy. And the last case which we have seen in the court of appeals sustains the public remedy in equity. People v. Vanderbilt, 26 N. Y., 287.

The jurisdiction, as applied to abuse or excess of corporate franchise, is denied in the last case we have seen in that court on the precise question. People v. Albany & Vt. R. R. Co., 24 N. Y., 261.

"We have been referred to several cases, in other courts of that state, for and against the jurisdiction. For it are Davis v. Mayor, etc., 2 Duer, 663; People v. Mayor, etc., 32 Barb., 102; People v. Albany & Vt. R. R. Co., 37 Barb., 216, reversed in 24 . Against it are dicta of Vice Chancellor MoCoun in Verplanck v. Mercantile Ins. Co., 1 Edwards, 88, and of STRONG, J., in Smith v. Lockwood, 13 Barb., 219; People v. Miner, 2 Lansing, 407, and People v. Albany & Vt. R. R. Co., supra.

We must accept this last case as authoritative on the precise point, for the present, in New York ; though in view of all the authorities, it is difficult, at this day, to reconcile it in principle with the later case of People v. Vanderbilt. The latter case goes on the ground of pourpresture, which is a special kind of public nuisance. The common law defines a nuisance as anything unlawful, which works hurt, inconvenience or damage; and a pourpresture, formerly an intrusion on the King’s soil, is now defined as an encroachment upon public rights or property. It is easy to understand how the courts have, of late, applied both terms to unlawful excess or abuse of corporate franchise, as an encroachment upon and a hurt to public rights. But it is difficult to appreciate how the courts of New York continue to adhere to the physical meaning of pourpresture, in the light of all the modern authorities, and to relieve the public and individuals against material nuisance, and refuse to relieve the state against the most serious form of pourpresture, only because it is immaterial.

And we must be permitted to remark that the opinion of the court in 24 New York is destitute of authority cited to uphold it; rests on the unsupported dictum of the court; and, however respectable in itself, and for the authority of the court which utters it, does not compare favorably with the able and learned opinions of Duer, J., in Davis v. Mayor, etc., and of Hogeboom, J., in People v. Mayor, etc. In face of all the authorities, and apparently ignoring them, it disposes of the question of jurisdiction -in this brief and bare sentence : “ Any remedy which the public may have for a breach or neglect of duty imposed by .the Bailroad Act, must be by mandamus, quo warranto or indictment; and the performance of such duty cannot be specifically enforced in equity at the suit of tire attorney general.” Outside of New York, this opinion can weigh little against the current of authority.

We are led to "believe that the singular and erratic course of the New York courts on this subject is somewhat attributable to the case of Attorney General v. Utica Ins. Co., 2 Johns Ch., 371, in 1817, followed in 1825 by Attorney General v. Bank of Niagara, Hopkins, 354.

Whatever degree of deference might be due, in this clay, to the decision of so illustrious an equity judge as Chancellor Kent, made at so early a day, we are unable to regard Attorney General v. Utica Ins. Co. as authority against the jurisdiction under consideration. It was an information in equity by the attorney general for an injunction against the corporation to restrain it from usurping banking powers. The court held that no injury to the public or private persons was averred or apparent; which, in that day, if not now, would be adequate ground for dismissing the information. But the court goes on to discuss the equitable jurisdiction of nuisance and kindred cases, and incidentally denies the authority of equity to enjoin excess of corporate franchise ; though the chancellor leaves room for an inference that he might have held otherwise, had a public evil been averred or apparent. It must be borne in mind that this was long before the era of great corporations in this country, and that the modern practice of courts of equity in England and this country, of applying the equitable remedy against nuisance to abuse of corporate franchise, was nearly or quite unknown. And the chancellor, passing from the single point of his decision, brings all his great learning to bear on all collateral questions, in such variety and at such length, that it is not altogether easy to discover whar his precise views were on many subjects discussed. We adopt the view of Chancellor Veoom, supra, that Chancellor Kent only “appears rather to question the jurisdiction.” Be that as it may, it doubtless misled many, as V. C. McCoun, in Verplanck v. Mercantile Ins. Co., to think that the decision was against the jurisdiction under any circumstances. And with all our admiration of his learning and deference for his authority and veneration for his ju. dicial qualities, we cannot help feeling that, as in the case of the exercise of the right of eminent domain, the great chancellor misled the courts of New York into error on this question also. In the one case, it took them some quarter of a century to return to sound principles. In the other, they have not yet done so. So mischievous is the sanction of a great name to error.

It is hardly necessary to add that we sustain the jurisdiction to enjoin a corporation from abuse or excess of franchise, or other violation of public law to public detriment, on information in equity, filed ex officio by the attorney general.

It will be perceived that we do not found our jurisdiction on ch. 148, secs. 18 and 14, R. S. We quite agree with the counsel for the defendants, that these sections confer no jurisdiction on this court. Whether they operate to limit the jurisdiction of the circuit courts, or are only declaratory of the jurisdiction which we hold to exist outside of them, we need not consider here. It is certain that they do not limit the jurisdiction of this court, if it be competent for the legislature to limit it.

The jurisdiction which we claim for this court puts the writ of injunction to a prerogative use. And we are strongly inclined to think that our views of our jurisdiction of these in-formations, follow almost logically from our views of our jurisdiction of the writ as a quasi prerogative writ. And we have illy expressed ourselves, and illy applied the authorities quoted, if we have not already made it apparent that we consider this jurisdiction, in this court, a necessary and most salutary one for the preservation of public right and public authority.

It was objected to the exercise of the jurisdiction in these cases, that it would deprive the defendants of the right of trial by jury, secured by sec. 5, art. I of the state constitution, extending to all cases at law.

It has been held by this court that this constitutional guaranty does not extend to cases in equity, including such cases of legal right as, by the practice of courts of equity, had become of equitable cognizance at the time of the adoption of the constitution. Stilwell v. Kellogg, 14 Wis., 461, affirmed in several late cases cited in Yilas & Bryant’s notes.

The constitution was adopted in 1848. And the English cases prior to that time are authority to show this equitable jurisdiction. Eor it was fourteen years later that the court of chancery was authorized by act of parliament to determine all questions of law and fact, with one qualified exception. 25 and 26 Yict., ch. 42, sec. 1. And the English and American cases cited show that this jurisdiction was an established equitable jurisdiction at the time the constitution was adopted.

But were this otherwise, we cannot perceive of what trial by jury, of what legal right, these informations can deprive the defendants. Their whole defense rests in questions of law. There is no fact for them to traverse, except their violation of the law. And their denial of this, if indeed they are to be taken as denying it, is manifestly formal only. And, if it were a Iona fide denial, these proceedings would not deprive them of any legal right triable by jury. If the law be valid, they are bound to obey it. If they are obeying it, the injunction cannot harm them or deprive them of any trial. If they are not obeying it, there is nothing involved here to be tried. The objection is specious, but is only specious.

The question is not here, and we shall not consider it, whether, under our practice, we could take equitable jurisdiction of a case in which a legal right is involved triable by jury, and provide for a trial of that right by a jury, so as to satisfy the provisions of the constitution.

It was also urgently pressed upon us that, all other questions apart, no equitable proceeding would lie to enforce chapter 278 of 1874, because it furnishes its own remedies by providing-penalties against the corporations violating it. We do not consider tlie rule on which the defendants rely, applicable to cases of this character, and should probably hold so in these cases, if the fact were as stated. But we shall not discuss the question, because it is not here. These informations go to enforce the rates fixed by the statute itself, not rates fixed by the commissioners. It does not appear that the commissioners have fixed any rates or classified any articles of freight. And for violations of the rates fixed by the act itself, no penalties are provided against the corporations; certain civil remedies are given, but no penalty. There are penalties against agents; but the remedy against the corporations is a distinct thing from the liability of their servants, as individuals, for violation of public law, mandatory upon them as private citizens.

This is, perhaps, as appropriate a place as we may find to notice an objection taken to the informations. It is said that they aver no specific injury to the public. Such an injury, in such a case, is a conclusion of fact, rather than a fact. The injury is a logical sequence of the facts. The acts of the defendants charged give the jurisdiction; and it is for the court to judge of the consequent evil. Many of the eases cited import, and some of them express, the rule governing such cases. It is not the averment of the pleader, but the nature of the acts pleaded, which is material on the question of public injury. The conscience of the court must 'be satisfied; and it may be satisfied or not, with or without averment. If an information should aver public mischief, where the court could see that there was none, the averment would go for nothing. So, without averment, it suffices that the court can see the public injury. It was hardly questioned that, in these cases, a public injury is apparent in the acts charged against these defendants. Directly or indirectly, this injury reaches every inhabitant of the state, and affects the whole state in its corporate capacity. It was, indeed, confidently foretold by the counsel for the defendants, that obedience to the law would work a still greater public injury. Upon that it is not for us to speculate. And if we could, we cannot sit here to offset a speculative injury arising from obedience of law, against a positive injury arising from disobedience' of law. In these days of self-judging insubordination, it would ill become this court to set so bad an example of compromise between right and wrong. We cannot look to the consequences of legislation. Let the legislature see to that. We have no discretion. We, at least, must obey the law. We can only see the direct public injury. And the acts charged satisfy the conscience of the court of the public injury. If the acts be illegal, that is sufficient.

Whether an information of this character would lie, as sug-. gested by Mr. Brice, even though no definite injury had been done, or was likely to be done, to the public, we are not called upon to decide in these cases. _

III. These questions of jurisdiction settled, still leave some preliminary matters to be considered, before we can reach the provisions of chapter 273, of 1874, which the informations charge that the defendants disregard and violate.

The act has many provisions not material in these causes. And this is a convenient place to state briefly the provisions which are material to any consideration involved here. The act classifies all the railroads of the state; fixes different maximum rates for passengers for each class of roads; classifies certain specified articles of freight; fixes maximum rates for each of the classes of freight, differently affecting different classes of roads; provides civil remedies against the companies, and penalties against their servants, for taking greater rates than those fixed by the act; provides for railroad commissioners, and gives them authority to classify articles of freight not classified by the act, and to reduce rates of freight; and provides civil -remedies and penalties against the companies for taking greater rates than those fixed by the commissioners.

It does not appear that the commissioners have acted in any way under the act; and the question of the validity of their powers is, therefore, not here.

The act was approved by the governor, March 11. It was contended for the defendants that it was repealed by chapters 292 and 341 of the same session ; both approved by the governor March 12. We have informed ourselves that the three acts passed the legislature in the same order in which they were approved.

This is a question of constructive repeal. In Attorney General v. Brown, 1 Wis., 513, this court adopted the uniform rule governing such cases. If there be two affirmative statutes upon the same subject, one does not repeal the other, if both may consist together; and we ought to seek for such a construction as will reconcile them together.

Section 2 of chapter 292, in which the repeal by that act is claimed, amends sec. 55 of the general railroad act of 1872. The section amended provides that existing companies shall have all the powers and be subject to all the duties prescribed by that act. The amendment provides that they shall have all the powers of the general railroad act and of their charters. It seems to us that the intention of the amendment is very manifest ; and it is a question of legislative intention. The amendment was probably adopted ex ahundanú cautela, to remove any possible doubt that the franchises of the general act had superseded the franchises of existing charters. And the amendment is not a grant of powers, but a mere confirmation of powers previously granted. It left the companies where it found them. And if chapter 273 be a valid alteration of railroad charters previously existing, it is no more repealed by sec. 2 of chapter 292, than any other previous amendment of such charters. The powers of railroad companies confirmed by this section, are those powers of their charters, controlled by all amendments of them and other public acts validly affecting them, as they existed when the section was passed. It is not difficult to make chapters 273 and 292 stand together.

Chapter 341 is an act in relation to railroads, with many provisions for their general government, perhaps all resting in the police power of the state. Amongst the rest, see. 9, under which the repeal is claimed, provides a penalty against any railroad company taking more than a reasonable rate of compensation. It was claimed that this provision licenses a reasonable rate of compensation in all cases, and therefore repeals the maximum rates specifically fixed by chapter 273. There are three answers to this:

First. Chapter 273 limits the companies to the maximum rates provided, but does not expressly license them to exact those full rates. And it might well happen, and the legislature may have so considered, that rates then reasonable might, in change of circumstances, become unreasonable; and that these companies continuing to charge the full maximum rates might be charging unreasonable rates.

Secondly. The act provides no fixed, statutory rates of freight for class C of roads. This class is forbidden to charge more than in June, 1873, which might be an unreasonable rate. And it includes all railroads not included in classes A and B, and might therefore well include roads not operated in June, 1873, which would have no limit of rates of freight under the act. Here is ample scope for sec. 9 of ch. 341, without disturbing the fixed rates of ch. 273.

Thirdly. Chapter 273 does not assume to fix rates for all traffic on railroads. The commissioners might not fix the remaining rates, or might delay in doing so, or might naturally, by inadvertences, omit articles of freight in their classification. Here again is subject for sec. 9 of ch. 341 to act upon, applying the rule of reasonable compensation.

It must be admitted that this looks like careless and slovenly legislation. But either of these views is one which we are bound to seek, and which, seeking, we readily find, to reconcile the two acts and make them consist together.

The question of constructive repeal is one of legislative intent. The three acts were passed within two successive days, and must have been pending together. And it is not possible to believe that the legislature intended to defeat the operation of ch. 273 by the other acts, going through the forms of legislation contemporaneously with it. And this question of intent seems to us to be absolutely determined by the passage of joint resolution No. 11, delaying the publication of ch. 273, so that it could not become a law until after chapters 292 and 341 had taken effect as laws; so that the constructive repeal should precede, not follow, the act repealed. The resolution, and the consequent order of publication of the three acts, seem to us not only to demonstrate that the legislature intended no repeal, but might possibly have had the effect, if there must be a repeal, of making chapter 273, as the later act, repeal see. 2 of ch. 292, and sec. 9 of ch. 341.

It was contended by the Chicago, Milwaukee & St. Paul Company, that it is not in class A of railroads, because the corporation in that class is called the Milwaukee & St. Paul Company; whereas the defendant had just one month before added the prefix, Chicago, to its name, under a statute authorizing such change of name. This was merely assuming an alias dictus, not changing the body nor wholly changing its name. It had been called by one name and chose to be called by another, very similar; differing only by the addition of one word, as a sort of preenomen. These facts are pleaded on both sides. The information avers that there had" been no other corporation of the name used in the chapter, and the answer cannot be held to deny it, though there is a qualified general denial. Sexton v. Rhames, 13 Wis., 99; Allis v. Sabine, 17 Wis., 626. Indeed we think that there is a presumption that there is no other corporation of the name. We have therefore little difficulty in holding that the corporation named in the act is the defendant. It is said that we cannot resort to evidence aliunde to ascertain the corporation intended by the act. Probably not, but we do not need any. We can, however, look into the laws of the state to solve the question. In another case of misnomer of a corporation, this court held, “that the objections to the act are too technical and evasive. Legislative enactments are not to be defeated on account of mistakes, errors or omissions, any more than other writings, provided the intention of the legislature can be ascertained from the whole act.” The court might well have added, hut that it was not there necessary, that it could equally look into other acts in pari materia, as the rule is. Nazro v. Merchants M. Ins. Co., 14 Wis., 295. This act, by the name it uses, intended some corporation : there is no other but this, and this had lately been designated by the name used. And we find for years before, acts granting powers to the Milwaukee & St. Paul Railway Company claimed here in its answer by this defendant. We find a grant of power to it, passed at the same session and approved by the same governor, March 10, the day before” chapter 273. We find no trace in the statutes of any other corporation by either of the alias dicti of this defendant. We should assuredly hold it entitled to the grant of March 10. And we will hold it subject to the act of March 11. We should be ashamed to sit here and suffer the law to fail, where the design of the legislature is so apparent, through so mere a verbal quibble on so mere a verbal accident.

Rex v. Croke, 1 Cowper, 29, cited by the defendant,’goes upon a confusion of things, not of names; one designating, as Lord Mansfield says, the corporation at large ; the other, a select body. And in People v. Oakland Co. Bank, 1 Douglass, 282, also cited, the names of the corporation chartered and of the corporation repealed were so essentially different, that the court could not gather the legislative intention. The court says: “ It is not intended to assert that there should be an ex act correspondence between the act creating and the one repealing a corporate charter, so far as the name of the corporation is concerned. All that is required is, that the repealing act should indicate with sufficient clearness the name of the corporation intended. There should be such a correspondence as to leave no doubt of the intention of the legislature.” There is surely such a correspondence here.

We imply no censure on any of the distinguished counsel who argued these motions with so much professional ability. We allude to the defendants when we sa.y, that we are constrained to regard some of these points last considered, as unworthy of these causes. And, while we are not disposed to censure them for litigating the main questions involved, these petty points could not fail to remind us of the pungent criticism of Lord Langdale, in Brown v. Monmouth R. & C. Co., on such technical points introduced by other great corporations into other great litigations.

IV. A question was made on the argument, of the effect of the constitutional amendment of 1871 upon sec. 1, art. XI of the constitution.

The provision of the constitution, as first framed, was, that corporations might be formed under general laws, but not by special acts, except in cases where the legislature should judge that the objects could not be attained by general laws; and that such general laws or special acts might be altered or repealed at any time.

Of the first clause of this section it was said : “ It seems very obvious, on the face of the provision, that it aimed at the evils of special legislation. The provision is against creating corporations by special acts.” “ It is doubtful also whether this clause can, at best, be regarded as anything more than directory to the legislature, as it leaves the whole matter, after all, to its judgment.” Clark v. Janesville, 10 Wis., 119.

And, as a directory provision, it proved to be largely unavailing, as our statute books abundantly show. Therefore came the amendment of 1871, prohibiting special legislation in this and other cases. This amendment prohibits the legislature from passing special laws, amongst other purposes, for granting corporate powers of privileges, except to cities; and directs that the legislature shall provide general laws for purposes for which special acts are so prohibited, which shall be uniform throughout the state.

It was contended that this amendment, prohibiting the grant of corporate powers by special act, operates as a repeal of the reserved power of altering existing special charters by special acts; that the prohibition to grant corporate powers includes, not only the creation of new corporations, but also the grant of new powers to existing corporations, and by inference the limitation or regulation of existing corporate powers, by special acts; and so confines the reserved power to alter special charters, to general laws.

The difficulty of altering special charters by general laws, which shall be uniform throughout the state, is very apparent. And if this were the true construction of the amendment, it would almost follow that special charters could no longer be repealed by special acts, and that the whole reserved power was relegated to general laws. It was even said by counsel that the charter of a corporation, organized under general law, could be repealed only by repeal of the general law; so that one corporation of one kind could not be subjected to repeal without repealing the charters of all corporations of the same kind under the same general law. This is almost an argument ad absurdum. And it is all a very inconvenient and, we may say, dangerous construction, which we should be very unwilling to adopt.

•We shall not stop to dwell here on the importance of the reserved power. We may do that later, in a more appropriate connection. We shall only assume here that it is a power of great significance and gravity ; of such moment, that it is impossible to believe that the legislature and the people intended to surrender or impair it; very hard to believe that they suffered themselves to surrender or impair it, by implication, in an amendment designed for quite a different purpose, quite consistent with the reserved power.

But the purpose of the amendment, so far as it affects sec. 1, art. XI, appears to. us very manifest. It was designed to act on tbe first clause only of the section, talcing away the legislative discretion and changing the directory provision into a prohibitory one; and not to touch the second clause of the section at all, leaving the reserved power where it found it, to be exercised thereafter as theretofore, upon special charters, by special acts. The amendment is prospective only, not retrospective. It prohibits an old way and provides a new way of creating corporations, but was not designed to affect existing corporations in any way. If it could operate to take away legislative control over existing charters, it might well be argued — as it was in Indiana — that it operates to repeal them altogether.

We can see nothing in the letter or spirit of the amendment to warrant us in giving it a construction to impair the reserved power. Under the rule of constructive repeal, we are bound to give such construction to these constitutional provisions, as will leave both to stand together. It is not for us to wrest so great a power from the legislature, by construction, unless the legislature and the people have made such construction inevitable. And we feel bound to hold, and find no difficulty in holding, the phrase in the amendment, to grant corporate powers or privileges, to mean in principio clonationis, and equivalent to the phrase, to grant corporate charters. This is implied not only by the word grant, but also by the word corporate. A franchise is not essentially corporate; and it is not the grant of franchise which is prohibited, but of corporate franchise; that is, as we understand it, franchise by act of incorporation.

There are cases in Iowa with some bearing on this question, which were not cited, but which we have carefully considered.

The constitution of that state, of 1857, art. Ill, sec. 80, prohibits local or special laws in certain cases; among these, for the incorporation of cities or towns; and provides that, in the cases enumerated, all laws shall be general and uniform throughout the state.

In Ex parte Pritz, 9 Iowa, 30, Davis v. Woolnough, 9 Iowa. 104, and McGregor v. Baylies, 19 Iowa, 44, the supreme court Reid that, under the clause of their constitution mentioned, the legislature had not power by special act to amend city or town ■charters, existing by special act at the time of the adoption of the constitution. -With great respect for that court, we should hesitate long before concurring in the reasoning or adopting the rule of those cases. And the more so, because in Von Phul v. Hammer, 29 Iowa, 222, that court also held that, although the legislature could not amend existing charters, yet every 'corporation of the kind might amend its own charter, under a power in the general law. But we need not consider the reasoning of the Iowa cases, because we cannot consider them applicable here. There is no equivalent in their constitution for the reserved power in ours, to enter into or control the construction of the clause in question.

The constitution of Indiana, of 1851, art. IV, sec. 22, has a similar prohibitory clause of special legislation in specified ■cases, including laws for the punishment of crime and misdemeanors; and. a similar provision for general laws uniform throughout the state. And the question came before the supreme court, whether a law punishing certain misdemeanors, local in its application and not uniform throughout the state, and therefore in conflict with the constitutional provision adopted, but which was in force at the time of the adoption of the constitution, was not repealed by the constitution. But the court held, without difficulty, that the constitutional requirement was prospective, and did not apply to laws passed before its adoption. State v. Barbee, 3 Porter, 358. This is an aid to our construction.

We hold the amendment of 1871 to relate to future corporations, and to leave existing corporations under the original provision of the constitution; and that, as to the existing corporations, the reserved power to alter or repeal remains unimpaired.

V. The maximum rates of chapter 273, of 1874, expressly apply to the railroads of the defendants. The defendants plead various antecedent charters, with express power to take toll, without express limitation. The exact language differs in different charters ; but the substance is, we believe, alike in all: power to exact tolls in the discretion of the company, not essentially different from the power in the general railroad act of 1872.

And the defendants thereupon insist that the limitation of those powers in their charters, by the fixed rates of chapter 273, impairs the obligation of the contract of their charters, and is, therefore, in violation of the provision of the constitution of the United States, art. I, sec. 10, subd. 1, which provides that no state shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.

The construction and application of this clause by the supreme court of the United States are certain and defined, and are, of course, beyond the reconsideration of this court. But a brief review of the clause and its construction is not irrelevant to the questions before us.

Mr. Madison, Federalist, No. 43, thus explains the policy and objects of this provision : “ Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. The two former are expressly prohibited by declarations prefixed to some of the state constitutions, and all of them are prohibited by the spirit and scope of those fundamental charters. Our own experience has taught us, nevertheless, that additional fences against these dangers ought not' to be omitted. Yery properly, therefore, have the convention added this constitutional bulwark in favor of personal security and private rights; and I am much deceived if they have not, in so doing, as faithfully consulted the genuine sentiments as the undoubted interests of their constituents. The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen, with regret and indignation, that sudden changes and legislative interferences in cases affecting private rights, become jobs in the hands of enterprising and influential speculators, and snares to the more industrious and less informed part of the community. They have seen, too, that one legislative interference is but the first link of a long chain of repetitions ; every subsequent interference being naturally produced by the effects of the preceding. They very rightly infer, therefore, that some thorough reform is -wanting, which will banish speculations in public measures, and inspire a general prudence and industry, and give a regular course to the business of society.”

If this be, as may be safely inferred, the sense in which the prohibition was adopted, it is very certain that its framers did not foresee or intend the uses to which it has been put. So, indeed, Chief Justice MARSHALL himself admits, in his opinion, in the leading case. 4 Wheaton, 644.

As early as 1810, the supreme court of the United States held that an act of a state legislature might be a contract within the meaning of the prohibition, and therefore beyond subsequent legislative control. Fletcher v. Peck, 6 Cranch, 87.

In 1819, the same great tribunal held that the charter of any corporation, not municipal, was a contract within the prohibition, which the legislature could not impair, by subsequent amendment against the will of the corporation. Dartmouth College v. Woodward, 4 Wheaton, 518. And that remains the law of the land to this day.

It is easy to criticise the decision; to say that the very point was not in the case; to impeach the reasoning of the opinions. Many able jurists and statesmen have done so and are doing so. It is easy to foretell that the case will be opened. Many do so. Here is one of the latest and most thoughtful of such speculations :

“ Some of those who think it would have been better had the case been decided the other way, may reasonably condemn any attempt to unsettle a branch of the law so long established. But the murmuring at the whole doctrine, which is beginning to be heard throughout the country; the restless, fitful desire to get rid of it, not yet fully understood by themselves, which large classes of people begin to feel, indicates that the whole subject must, at no distant day, be carefully re-examined. Any decision in an ordinary case ought, as a rule, to stand; and when a decision has stood for fifty years, even to question it lightly and without sufficient consideration, is injurious and censurable, as tending to unsettle an entire system of jurisprudence. But constitutional decisions which take from the political department of government powers and prerogatives usually belonging to it, and which legislation cannot remedy, stand on a different footing from ordinary precedents involving questions of private rights. Fifty years is a short period in the history of a nation living under a constitution intended to be perpetual. The consequences of the Dartmouth College case are now beginning to press heavily on great communities, and the pressure, we believe, will increase rather than diminish. It involves questions of political power, political necessity, it may yet be of political safety, and the case will not be let alone, however wise it might be to do so.” 8 American Law Review, 191.

The court was not unanimous in the Dartmouth College case, and has not always been unanimous in subsequent cases applying the rule. Indeed it is a constant tradition of the profession, that the bench has never since been unanimous on the full extent of the doctrine of that case.

The spirit of the decision, and the grounds on which it goes, are best found in the opinions of the judges who made it.

Chief Justice MARSHALL says: “It has been argued that the word ‘contract,’ in its broadest sense, would comprehend the political relations between the government and its citizens, would extend to offices held within a state for state purposes, and to many of those laws concerning civil institutions, which must change with circumstances, and be modified by ordinary legislation, which deeply concern the public, and which, to preserve good government, the public judgment must control. That the clause in the constitution, if construed in its greatest latitude, would prohibit these laws. Taken in its broad, unlimited sense, the clause would be an unprofitable and vexatious interference with the internal concerns of a state, would unnecessarily and unwisely embarrass its legislation, and render immutable those civil institutions which are established for the purpose of internal government, and which, to subserve those purposes, ought to vary with varying circumstances. That, as the framers of the constitution could never have intended to insert in that instrument a provision so unnecessary, so mischievous, and so repugnant to its general spirit, the term ‘ contract ’ must be understood in a more limited sense. That it must be understood as intended to guard against a power of at least doubtful utility, the abuse of which had been extensively felt, and to restrain the legislature in future from violating the right to property. That anterior to the formation of the constitution, a course of legislation had prevailed in many, if not all, of the states, which weakened the confidence of man in man, and embarrassed all transactions between individuals, by dispensing with the faithful performance of engagements. To correct this mischief by restraining the power which produced it, the state legislatures were forbidden ‘ to pass any law impairing the obligation of contracts,’ that is, of contracts respecting property, under which some individual could claim a right to something beneficial to himself; and that, since the clause in the constitution must, in construction, receive some limitation, it maybe confined, and ought to be confined, to cases of this description; to cases within the mischief it was intended to remedy.

“ The general correctness of these observations cannot be controverted. That the framers of the constitution did not intend to restrain the states in the regulation of their civil institutions, adopted for internal government, and that the instrument they have given ns is not to be so construéd, may be admitted. The provision of the constitution has never been understood to embrace other contracts than those which respect property, or some object of value, and confer rights which may be asserted in a court of justice.”

If property, as the great chief justice indicates, be the test, it might well be said that aggregations of persons in municipal corporations may have rights of property as clearly as aggregations of persons in private corporations, and come as well within the prohibition. So the court afterward found in East Hartford v. Hartford Bridge Co., 10 Howard, 511, and other cases, in which the court disregards the property test, and rests the application of the rule on the distinction between public and private corporations. See Charles River Bridge v. Warren Bridge, 11 Peters, 420. And so of offices, it might well be suggested that the emoluments of public office, conferring rights which may be asserted in a court of justice, might logically come within the property test.

Mr. Justice Stoky, another great name which has reflected its lustre on this decision, says : “ Another division of corporations is into public and private. Public corporations are generally esteemed such as exist for public purposes only, such as towns, cities, parishes and counties; and in many respects they are so, although they involve some private interests; but strictly speaking, public corporations are such only as are founded by by the government for public purposes, where the whole interests belong to the government. If, therefore, the foundation be private, though under the charter of the government, the corporation is private, however extensive the uses may be to which it is devoted, either by the bounty of the founder, or the nature and .objects of the institution. For instance, a bank created by the government for its own uses, whose stock is owned exclusively by the government, is, in the strictest sense, a public corporation. So an hospital created and endowed by the government for general charity. But a bank whose stock is owned by private persons, is a private corporation, although it is erected by the government, and its objects and operations partake of a public nature. The same doctrine may be affirmed of Insurance, Canal, Bridge and Turnpike Companies. In all these cases, the uses may, in a certain sense, be called public, but the corporations are private ; as much so as if the franchises were vested in a single person.”

It is difficult, at this day, to recognize the sound policy of this strict distinction between municipal and all classes of quasi private corporations, or to appreciate the wisdom which admits the necessity of legislative control over all municipal corporations of every grade and nature, and denies it to all other corporations ■of every grade and nature. It is quite safe to say that in this state of Wisconsin, each of these defendants, a private corporation for the purposes of this rule and placed by it above legislative control of its franchises, directly exercises, to say nothing of its indirect influence, more power over the public interests of the state, over the public welfare and prosperity of the ■state, over the commonwealth, than the largest municipality in the state with its 90,000 or 100,000 souls. The state entrusts it with the exercise of the sovereign fight of eminent domain, with the construction and operation for public purposes of hundreds of miles of public thoroughfare of the most dangerous character to public safety, with a virtual monopoly •within its district of the carrying trade, with almost a control of all commerce within its reach, and a power almost of life and death over its people — and yet it is a private corporation, whose charter the legislature cannot control; while the most insignificant town in the state, with no extra-territorial influence and hardly any extra-territorial recognition, is invested with the dignity of a public corporation,'over which it is unsafe to deny legislative control.

It is not to be overlooked that the decision was made long before the era of great corporations in this country, long before what were then private corporations had become of more public significance than municipal corporations were then, long before-our present civilization hinged almost as machón quasi private corporations, as HallaM says early modern civilization did on municipal corporations ; before Judge Story had lived to see a, bank, which he defined to be a private corporation, notwithstanding its public relations, wage war, unequal at last, but long doubtful war, with the federal government' itself. The difficulty arises probably from applying old names to new things • applying the ancient definition of private corporations to corporations. of a character unknown when the definition arose, corporations of such great and various public relation and public significance ; a definition which, as applied to them, is wearing-out, so that courts are beginning to call them quasi private corporations and quasi public corporations, as in truth they are.

The remarks since made, from time to time, on this decision,, by the court which made and has always hitherto sustained it,, are perhaps the severest commentary upon it, in the broad sense in which it is applied. It deprives the states of a large measure of their sovereign prerogative, and establishes great corporations as independent powers within the states, a sort of imferia in imferiis, baffling state order, state economy, state policy. Well might a distinguished judge of the same great court, when the-extent of the evil was becoming apparent, start back, shocked at the claims of corporate immunity from law, and cry out:

“ No state, it is declared, shall pass a law impairing the obligation of contracts; yet with this concession constantly yielded,, it cannot be justly disputed that in every political sovereign community there inheres necessarily the right and the duty o-f guarding its own existence, and of protecting and promoting the interests and welfare of the community at large. This power and this duty are to be exerted not only in the highest acts of sovereignty and in the external relations of governments; they reach and comprehend likewise the interior polity and relations of social life, which should be regulated with reference to the advantage of the whole society.” And he adds, speaking of tbe right of eminent domain: “ It would imply an incredible fatuity in tbe states to ascribe to them tbe intention to relinquish the power of self-government and self-preservation.” West River Bridge Co. v. Dix, 6 Howard, 507.

It was lately said by tbe same court, speaking of this construction and application of tbe constitutional prohibition: “ A departure from it now would involve damage to society that cannot be foreseen; would shock the sense of justice of the country, unhinge its business interests, and weaken, if not destroy, that respect which has always been felt for the judicial department of the government.” Binghamton Bridge, 8 Wallace, 51. Perhaps so ; there is always inconvenience and sometimes danger in abandoning old rules of judicial decision. But there is danger in adhering to this rule. And it is not always the better part of wisdom to bear the ills we have, than fly to others that we know not of. And it must be conceded that the language of the court, just quoted, sounds rather like apology than justification.

Be all this as it may, the rule in Dartmouth College v. Woodward stands, and we must all yield to it while it does stand. Neither this nor any state court can disregard or evade it, 'while the court which established it may set fit to adhere to it. And the rule that corporate charters are contracts within the prohibition, has been expressly applied by that court to railroad charters. Wilmington R. R. v. Reid, 13 Wallace, 264; Humphrey v. Pegues, 16 id., 244.

And we have given some brief history of the rule,- and of its application and its mischief, not for any purpose of combating it, but for the purpose of showing the significance and scope of the reserved power over corporate charters in our state constitution. For the very purpose of that reservation of power was to exclude the rule from all application to corporate charters in this state, and to restore to the state all its otherwise inherent authority over its own corporations.

This court has several times had occasion to discuss this re* served power, as one well understood and of undoubted efficiency. Madison W. & M. Plank Road Co. v. Reynolds, 3 Wis., 287; Pratt v. Brown, id., 603; Nazro v. Merchants' M. Ins. Co., 14 id., 295; Kenosha, R. & R. I. R. R. Co. v. Marsh, 17 id., 13; Blair v. Milwaukee & P. du C. R. R. Co., 20 id., 254; Whiting v. Sheboygan & F. du L. R. R. Co., 25 id., 167; State v. Milwaukee Gas L. Co., 29 id., 454; Chapin v. Crusen, 31 id., 209; West Wisconsin R. R. Co. v. Trempealeau, ante, p. 257.

As long ago as 1854, six years after the adoption of the constitution, Mr. Justice SMITH observed in Prattv. Brown, supra: “ In all instances, however, in which this power to take private property for public use has been delegated to corporations, the .parties interested in such grant have been compelled to rely for the perpetuity of the grant, either upon the pledged faith of the sovereign power making the grant, or upon constitutional compacts inhibiting the power of revocation. The doctrine that a charter of incorporation, conferring certain franchises upon a company or individual, was in the nature of a grant, and hence protected from encroachment or attack by the federal constitution, was established after elaborate argument and on full consideration by the supreme court of the United States, in the Dartmouth College case. This doctrine has, since that decision, been acquiesced in by nearly if not quite all the state courts of the union. It is competent, nevertheless, for each state, by constitutional regulation or specific legislative enactment, to reserve the power to modify or repeal all such acts of incorporation. When the power of modification or repeal is reserved, either in the one mode or the other, it is obvious that the grantees must rely, for the perpetuity and integrity of the franchises granted to them, solely on the faith of the sovereign .grantor. Hence, since the decision of the Dartmouth College case, some of the states, and our own among the number, have, by constitutional provision, reserved to their legislature the right of modification or repeal of all special acts of incorporation j and all such corporations now rest upon the faith of the state, taking care to deserve its favor by observing strictly the limits of their powers, and accomplishing by all legitimate means the objects of their incorporation.”

In 1863, in Kenosha R. & R. I. R. R. Co. v. Marsh; supra, Mr. Justice PAINE said: “The occasion"1 of reserving such a power in the constitution or in the charters themselves, is well understood. It grew out of the decisions of the supreme court of the United States, that charters were contracts within the meaning of the constitutional provision that the states should pass no law impairing the obligation of contracts. This was supposed to deprive the states of that power of control over corporations which was deemed essential to the safety and protection of the public. Hence the practice, which has extensively prevailed since those decisions, of reserving the power of amending or repealing charters. It was solely to avoid the effect of the decision that the charter itself was a contract between the state and the corporation, so as to enable the state to impose such salutary restraint upon those bodies as experience might prove to be necessary. Undoubtedly the legislature might, under this power, impose new duties and new restraints upon corporations in the prosecution of the enterprises already undertaken. And provisions of this nature would be binding, whether assented to or not.”

In 1870, in Whiting v. Sheboygan & F. du L. R. R. Co., supra, Chief Justice DIXON enters into an able and elaborate consideration of the subject, from which we quote : “ And here it occurs to us to observe that, under the principles announced in the Darmouth College case and in the numerous eases which have followed it in the same court, and by the authority of which the courts of all the states are bound, this power of the state to regulate and control the franchise and fix the amount of the tolls has been frequently wholly lost. Be this matter as it may in other states, the question can never arise in this state. Our people, by a most wise and beneficent provision in tbeir constitution, have perpetually reserved the power to the legislature to alter or repeal all charters or acts of incorporation at any time after their passage. As yet, we believe, the power has never been exercised with respect to any railroad company organized in this state, and possibly it may never be. It is valuable, however, as a check upon the rapacity which these corporations sometimes exhibit, and the time may come when the legislature will be imperiously required to exert it; but when it does, if ever, it will not be to deprive the corporation or its stockholders of their legitimate rights, but to correct abuses and save the rights of the people. The legislature will not reduce the tolls or rates to an unreasonably low figure, or so as to disappoint the just expectations of the owners of stock.”

In 1874, this sounds like prophecy.

And at the last term, in the case of West Wis. R. R. Co. v. Trempealeau, supra, Mr. Justice Cole said: “ The validity of these acts. repealing the exemption is mainly rested upon the power reserved to the legislature by sec. 1, art. XI of the constitution, which in terms declares that all general laws or special acts under which corporations without banking powers are created, may be altered or repealed by the legislature at any time after .their passage. If proper force and effect are given to this constitutional provision, it would seem to afford ample authority for the enactment of the repealing statutes above cited, as it reserves the right to the legislature to amend and revoke all corporate franchises and privileges which it might grant. In this case the legislature first relinquished the right of taxation, so far as the lands in controversy-are concerned, and then subsequently resumed it. But this the learned counsel for the company contend it was not competent for the legislature to do, because it impaired the obligation of a contract which the state had made. The doctrine that a state may grant or bargain away beyond recall, the right of taxation, a high political and sovereign power, essential to the very existence of the state, and without which no governmental functions can be exercised or carried on, has always seemed to me to rest upon very unsatisfactory grounds, and I am unable to assent to its general correctness. If the legislature of a state may relinquish for a specified period the right to tax the property of persons or corporations within its jurisdiction, it may do so permanently; and it may, upon the same ground, relinquish its police power, the right of eminent domain, and other sovereign powers, until nothing of the state government remains but a name. I should greatly regret the general recognition of such a doctrine, or even acquiescence in it without protest, as sound constitutional law. And therefore I feel constrained to withhold my assent to it at this time. I do not propose to enter upon any discussion of the question, however, as it is not necessarily the ground upon which our decision in this case is founded. I concede that the supreme court of the United States say that the question whether the legislature has the power to grant away the right of taxation is one not open to discussion in that court, because this power has been affirmed by repeated adjudications made in that court, and the doctrine of the Darmouth College cáse has been applied in all its extent and rigor to such a legislative grant. * * The object and historical origin of the provision in the constitution of this state are matters known to all professional men. They were, through this paramount authority, to retain and secure to the state full power and control over corporate franchises, rights and privileges which it might - grant, — a power and control which the state was in a measure deprived of by the federal constitation, as that instrument had been interpreted in the celebrated Darmouth College case. "With the grant of exemption from taxation was annexed the reservation that such grant might be altered or revoked by the legislature at any time after its passage. It was a qualification of the grant, and the subsequent exercise of the reserved power cannot be regarded as an act impairing the obligation of contracts.” And the court sustained the exercise of the reserved right.

’ This has been the unanimous opinion and decision of this court, always, in all cases before it. And, by force of the constitutional power reserved and of the uniform construction and application of it, the rule in the Darmoutli College case, as applied to corporations, never had place in this state, never was the law here. The state emancipated itself from the thraldom of that decision, in the act of becoming a state ; and-corporations since created here have never been above the law of the land.

Subject to this reserved right, and under the rule in the Dartmouth College case, charters of private corporations are contracts, but contracts which the state may alter or determine at pleasure. Contracts of that character are not unknown in ordinary private dealings; and such we hold to be the sound and safe rule of public policy. It is so in England. It is so under the federal government itself. The material property and rights of corporations should be inviolate, as they are here ; but it comports with the dignity and safety of the state that the franchises of corporations should be subject to the power which grants them, that corporations should exist as the subordinates of the state, which is their creator, durante bene plácito.

This is a question of state law, not of federal law. We give full scope to the federal constitution as interpreted by the federal courts, but we stand clearly outside of both. This question could be brought within the Dartmouth College rule, not by interpretation of the federal constitution, but by interpretation of the state constitution only. That is our function. We accept the construction of the federal constitution as the federal courts give it. But we give construction to our own constitution for ourselves. And there we might well rest.

But the exercise of this reserved power has been sanctioned by the federal and other state courts.

The general banking law of New York, of 1838, provided that stockholders of banks under it should not be personally liable for the debts of their banks, unless they should expressly so declare by their articles of association ; but the law reserved' power to the legislature to alter or repeal it at any time, the very words of our constitution. Under this law, a bank was organized in 1844, and the stockholders declared, by their articles of association, that they should not be liable for the debts of the bank. Afterwards the constitution of the state, of 1846, declared the stockholders liable, and the legislature of 1849 passed an act to enforce that liability. The courts of New York held the stockholders liable; and the supreme court of the United States affirmed the judgment, holding that the constitutional provision and act of 1849 impaired the obligation of no contract, either in the general banking law or in the articles of association, because the reserved power subjected the contract and the stockholders to the change made in their liability. Sherman v. Smith, 1 Black, 587. See also 21 N. Y., infra.

In the Pennsylvania College Cases, 13 Wallace, 190, the opinion of the court states that: “ Cases often arise, where the legislature, in granting an act of incorporation for a private purpose, either make the duration of the charters conditional, or reserve to the state the power to alter, modify or repeal the same at pleasure. Where such a provision is incorporated in the charter, it is clear that it qualifies the grant, and that the subsequent exercise of that reserved power cannot be regarded as an act within the prohibition of the constitution. Such a power, also, that is, the power to alter, modify or repeal an act of incorporation, is frequently reserved to the state by a general law applicable to all acts of incorporation or to certain classes of the same, as the case may be, in which case it is equally clear that the power may be exercised whenever it appears that the act of incorporation is one which falls within the reservation, and the charter was granted subsequent to the passage of the general law, even though the charter contains no such condition nor any allusion to suck a reservation. Reservations in such a charter, it is admitted, may be made ; and it is also conceded that when they exist, the exercise of the power reserved, by a subsequent legislature, does not impair the obligation of the contract created by the original act.”

The same point is ruled in many cases, amongst others, in Miller v. State, 15 Wallace, 478; Tomlinson v. Jessup, 15 id., 454; Holyoke Co. v. Lyman, 15 id., 500; McLaren v. Pennington, 1 Paige, 102; Re Oliver Lee's Bank, 21 N. Y., 9; Perrin v. Oliver, 1 Minn., 202; Mayor etc. v. Norwich & W. P. P. Co., 109 Mass., 103; Parker v. Metropolitan R. R. Co., id., 506; Stevens v. Smith, 29 Vermont, 160.

In Olcott v. Supervisors, 16 Wallace, 678, a case from this state, turning on the relations of a railroad company and the state, the court takes occasion to say of the reserved power in our constitution: “ That the legislature may alter or repeal the charter granted to the Sheboygan & Fond du Lac Railroad Company, is certain. This is a power reserved by the consti» tution. The railroad can, therefore, be controlled and regulated by the state. Its use can be defined; its tolls and rates for transportation may be limited.”

It was argued for the defendants that the power is a limited one. It is so said in Miller v. State, and Holyoke v. Lyman, supra, and in some Massachusetts cases, that it must be reasonably exercised. But the remarks in the former eases seem to relate to the property, rather than to the franchise, and are vague. And it seems to us that the legislature is the sole judge of the reasonable nature of the alteration, as it is the sole judge of the reasonable nature of the original charter. And so that court itself says in effect in Mayor v. Norwich & W. R. R. Co, supra. But these dicta are too vague and general for either guidance or authority.

The reserved power in our constitution is a positive provis ion entering into all charters under it, and must be construed as it is written. We cannot construe away its meaning, oi bold it to mean something else, which we or others might con sider wiser or better. We are bound, in our construction of it, by the very words used. We refer to a large number of cases on this point of construction, collated by DixoN, C. J., in 26 Wis., 451. The power is limited by its own words only. Any limitation of it must come from those words. And we must' be guided in our construction of the words used, if the words will admit of it, by the purpose of the provision, to do away in this state the rule in the Dartmouth College case so far as it relates to charters of private corporations. The power to re peal can bear but one construction; for, in this use, the word has but one meaning. The power to alter depends on the meaning of the word, alter. To alter is to make different, without destroying identity (Crabb); to vary without entire change (Webster and Imp. Diet.) A corporate charter of one kind cannot be altered to a charter of an entirely different kind. But a corporate charter may be altered so as to make it different in detail, so long as the general identity of the corporation remains ; so that it is varied, without entire change. This is the obvious meaning to lawyer or layman. Arguments ah in-convenienti cannot weigh against the manifest meaning of the word used; they may go to impeach the wisdom of the power, but not to impair its import.

We think that Mr. Justice PAINE recognized the true limit, depending on the word used, in Kenosha R. R. Co. v. Marsh, supra: “ I suppose it would hardly be claimed that the state, even where this power of amendment ,is reserved, could, by amending the charter of a railroad company so as to provide for a new and entirely different road, impose any obligation on the corporation to build it.” That is a particular application of the rule, not to alter so as entirely to change.

But it is unnecessary to pursue this topic further, as there can be no doubt that here is as unquestionable an exercise of the power to alter as can well be. The charters of the defendants gave them an unlimited right of toll. The alteration limits tbe right. This is a strict alteration, or there is no such thing as alteration. This is just what STRONG, J., says, in Olcott v. Supervisors, supra, and Dixon, C. J., says, in Whiting v. S. & F. R. R. Co., supra, the legislature can do under the power to alter.

We shall not discuss the question whether the defendants have a right to take toll, as intimated by Mr. Justice STRONG in the State Freight Tax Case, 15 Wallace, 232, without any franchise to take it, as an attribute of ownership. They certainly could not have a right to exact' what they might please. But the question is not here, because these corporations accepted a franchise to take toll, and must be held to take it under the franchise.

And we need hardly notice the point made, that the franchise to take toll without limitation, once granted, inheres in the railroad as property, beyond the reach of the reserved power to alter. Logically considered, this is only a denial in another form of the reserved power to alter. If the franchise inhere in the property by the use of it, and be revocable, then it would be severed from the property by repeal, and, upon alteration, would inhere only as altered. A building is real estate, by being attached to the soil; but if it be taken down, the brick and wood do not still inhere in the land. The reserved power would be nugatory, if the mere use of the franchise could operate to put it beyond alteration or repeal. The position is a mere petitio principii.

Of the same type is. the argument that ch. 27S violates the contracts of these defendants with their creditors. This'position appears to us to rest in the absurdity that the mortgagor can vest in his mortgagee a greater estate than he had himself. Perhaps the statute may lessen the means of payment of the defendants. So would a fine for homicide, under the police power of -the state. But to lessen the means of payment of a contract, is not to impair the obligation of the contract. These defendants took their franchises, and their creditors invested their money, subject to the reserved power, and suffer no legal wrong when that is exercised.

It was said that ch. 273 violates the rights of property of these defendants. We cannot perceive that it does. Whether it will lessen the income of their property, we cannot foresee. We only know that it does lessen their rates of toll. But it does not wrongfully touch their property. As far as the franchise is to be considered property, it was subject to this very limitation ; and the limitation is the exercise of a right over it, which does not violate it. The right of limitation entered into the property and qualified it. And the act does not at all meddle with the material property, distinct from the franchise. It acts only on the franchise, not at all upon the material property. And it is sufficient to say that they acquired the material property, as distinct from the franchise, subject to the alteration of the franchise under the reserved power. That was a condition under which they chose to hold their property; and they have no right to complain when the condition is enforced. Their rights in their material property are inviolate, and shall never be violated with the sanction of this court. But they are no more violated by this act and its enforcement, than by foreclosure of a mortgage or ejectment by paramount title. It is a right over property which is enforced, not a wrong to right in property.

We listened to a good deal of denunciation of chapter 273, which we think was misapplied. We do not mean to say that the act is not open to criticism. We only say that such criticism is unfounded. It was said that its provisions, which have been noticed, were not within the scope of the legislative function ; as if every compilation of statutes, everywhere, in all time, did not contain provisions limiting and regulating tolls ; as if the very franchise altered were not a rebuke to such clamor. It was repeated, with a singular confusion of ideas and a singular perversion of terms, that the provisions of the chapter amount to an act of confiscation; a well definedf-term-in the law, signifying tbe appropriation, by tbe state, to itself, for its own use, as upon forfeiture, of tbe whole thing confiscated. It was denounced as an act of communism. We thank Grod that communism is a foreign abomination, without recognition or sympathy here. The people of Wisconsin are too intelligent, too staid, too j ust, too busy, too prosperous, for any such horror of doctrine; for any leaning towards confiscation or communism. And these wild terms are as applicable to a statute limiting the rates of toll on railroads, as the term murder is to the surgeon’s wholesome use of the knife, to save life, not to take it. Such objections do not rise to the dignity of argument. They belong to that order of grumbling against legal duty and legal liability, which would rail the seal from off the bond. They were not worthy of the able and learned counsel who repeated them, and are hardly worthy even of this notice in a judicial opinion.

We have, according to our duty, dealt with the questions we have considered as questions of law. We cannot judge of the policy or of the fairness of the act. That is for the legislature. We can only say that it is the law. We cannot judge of the propriety of these informations. That is for the law officers of the state. We are only to determine what the law is, and to administer it as we find it, in causes over which we have no other control. And we can join in no outcry against the law, which it is our duty to administer. Neither can we countenance any outcry against the railroads. We cannot consider any popular excitement against them warranted or useful. The railroads have their rights, and so have the people. Whatever usurpation or abuses, if any, the railroad companies may be guilty of, can find a remedy in calm, just, appropriate legislation. And this court will firmly and impartially protect all the rights of the railroads and of the people, in all litigation which may come here. But we can take no part in popular outcry against these companies, or countenance any prejudice against them. We endorse here the full meaning of what Mr. Justice PAINE so eloquently said in Whiting v. Sheboygan R. R. Co., supra: “Railways are tbe great public highways of the world, along which its gigantic currents of trade and travel pour — highways compared with which the most magnificent highways of antiquity dwindle into insignificance. They are the most marvelous invention of modern times. They have done more to develop the wealth and resources, to stimulate the industry, reward the labor, and. promote the general comfort and prosperity of the'country, than any other, and perhaps all other, mere physical causes combined. There is probably not’a man, woman or child, whose interest and comfort have not been in some degree subserved by them.”

And we endorse and repeat what Chief Justice Dixon well said in the same case: “The power of the legislature to regulate the' tolls and charges of such companies is in itself a limited one, if not in a constitutional sense, certainly in the sense of morality and justice. If there be not an express, there is certainly an implied, obligation and promise, on the part of the state, never to reduce the tolls and charges below a standard which will be reasonable, or which will afford a fair and adequate remuneration and return upon the amount of capital actually invested. This obligation and promise, which spring from the act of incorporation and invitation by the state to persons to invest their money in the stock, it is presumed that no legislative body would disregard, except where the company, by gross and wanton abuse of its privileges, had forfeited its rights; and then, instead of legislative action, it is also presumed that the regular course of judicial proceedings would be preferred. The true intent and object of the power is. that the legislature shall be able to protect the rights and interests of the people, but not that it should arbitrarily impair the rights and franchises of the company, or destroy the property of its stockholders. The good faith of the state is pledged against this, and it is not within the range of presumption that it will ever be done. The individuals owning the property, and whom the corporation represents, purchase it under this pledge and inducement held out by the state. To them it is a matter of mere private business, engaged in under the sanction and encouragement of the state, and for their individual gain and emolument; and the legislature will no more unnecessarily interfere with it, or with the business of the corporations when it is legitimately and properly conducted, than it will with any other private business.”

And, fully sustaining the reserved power and this exercise of it, as matter of law, we add to what the judges of this court have said, what Chancellor Kent says, that it should be matter for serious consideration how far the exercise of the reserved power is consistent with justice and policy, and that it ought to be under the guidance of extreme moderation and discretion. 2 Kent’s Com., 806.

It is deeply to be regretted that there is just now more or less excitement against railroad corporations, although we believe that its extent is greatly exaggerated. But it seems to us quite safe to say that, though this feeling may be unwise, it is not vindictive; but is rather of the nature of parental anger against those spoiled children of legislation, as our statute books abundantly show them to be, ,who, after some quarter of a century of legislative favors lavishly showered upon them, unwisely mutiny against the first serious legislative restraint they have met. If it bé true that the people are too angry, it is very sure that the companies have been too defiant. But, be all this as it may, there is some excitement against them. We entertain no doubt, however, that through it all, the sound and just views just quoted from their chosen and trusted judges, Dixon and PAINE, are the views of the people of this state to-day; that they always have been; and that these corporations and all interested in them may safely rely on the sense of justice of the people and the legislature. The judgment of both may err. It is said that it has erred in the details of this chapter 278. Of that we are not the judges; but we believe that it is yet to be verified by experiment. It may well be that the high rates charged by the railroads have lessened their own receipts, by crippling the public interests. The affidavits of experts have been read to the contrary; but they are only opinions, founded indeed on past statistics. Such opinions, founded on such statistics, would have defeated cheap postage, and are helping to-day to defeat a moderate tariff. Experience often contradicts such theories. The interest of the public, in this regard, seems to be identical with the interest of the railroads. We think that there must be a point where the public interest in railroads and the private interest of the corporators meet: where the service of the public at the lowest practicable rate will produce the largest legitimate income to the railroads. It seems to us an utter delusion that the highest tolls will produce the largest income. The companies have hitherto absolutely controlled their own rates. The legislature now limits them. The companies say that the limit is too low. But there is no occasion for heat or passion on either side. The people and the legislature understand well the necessity of the railroads to the state, and the necessity of dealing fairly and justly, and even liberally, with the companies. Time and prudence and wise counsels will set all this right. This very controversy may well bring about a better and more permanent understanding and relation between the state and its corporations. We say so much in deference to an earnest appeal from the bar to counsel moderation. But, in the meantime, we cannot legislate for either party. We can only tay what the law is, and administer it as we find it.

An objection was taken to chapter 273, that it is not uniform throughout the state, as required of general laws under the constitutional amendment of 1871. As we think that we have already sufficiently indicated, we sustain and apply this act as an alteration of the special charters of these defendants, and not as an amendment of the general railroad act of 1872. It was said, on the argument, that one of the roads of the Chicago & Northwestern Company was organized under the general act. But that is not pleaded, and does not appear in any of the papers in the case ; and of course we cannot act upon a mere verbal suggestion of the kind. So the question whether chapter 273 can be held a valid alteration of the general railroad act of 1872, is not before us, and is not passed upon.

Neither do we express any opinion on the validity of any provision of chapter 273 not expressly involved in the decision of these motions. And, in that connection, it is proper to say that the injunctions prayed for exclude all question here on what is called inter-state commerce.

We only hold the provisions of chapter 273 of 1874, regulating their tolls, to be valid amendments of the special charters of these defendants, obtained from the state under the constitution as it stood before the amendment of 1871.

YI. Supposing chapter 273 to be, on the part of the state, a valid amendment of the charters of the defendants, it was objected that it could not be a valid amendment quoad the defendants, without acceptance of it on their part; and until such acceptance, not obligatory upon them. And this proposition is sanctioned by Yeaton v. Bank, 21 Grattan, 593, and other cases cited.

It was said in Kenosha R. R. Co. v. Marsh, supra, and we think said' — ■ certainly implied — in other cases in this court, that valid alterations of a charter, under the reserved power, would bind the corporation, whether assented to or not. The same thing has been said by other courts, is implied in a great many cases, and is expressly decided by the supreme court of Massachusetts in Mayor v. Norwich & W. R. R. Co., supra. And we think that the better opinion.

But it appears to us to be here a distinction without a difference. For it is very evident, as it is said in Yeaton v. Bank, .that if the corporation do not accept the amendment, it must abandon its charter. The court says: “ One consequence undoubtedly is, that the corporation cannot conduct its operations in defiance of the power that created it; and if it does not accept tbe modification or amendment proposed, must discontinue its operations as a corporate body.”

If tbe amendment be obligatory, tbe corporation may suspend ; if it be not obligatory, the corporation must accept, or suspend; we fail to see tbe practical difference in such a case as this. 'Whether or not the defendants had an election to accept or reject, and whether or not they accepted the amendment, they had no right to go on in disregard of the amendment. And we think that their proceeding under their charters, after the passage of the alteration, raises a presumption that, if they had a right of election, they exercised it by accepting the alteration. Otherwise, it was their duty to suspend their operations. In any case, the question cannot weigh in the consideration of our duty to enjoin their actual disobedience of the law.

VII. The defendant The Chicago, Milwaukee & St Paul Company pleads the charter of the territorial legislature of February 11, 1847, incorporating the Milwaukee & Waukesha Bailroad Company, and the organization of the corporation thereunder; the act of the territorial legislature of March 11, 1848, extending the road from Waukesha to Prairie du Chien, and the construction of the road from Milwaukee to Prairie du Chien in the years 1850-1856; the act of the state legislature of February 1, 1850, giving the corporation the new name of the Milwaukee & Mississippi Eailroad Company; the act of the state legislature of March 31, 1860, to facilitate the formation of a corporation with the franchises of the original company, upon foreclosure of their mortgage, and the formation thereunder, by the purchasers, of the Milwaukee & Prairie du Chien Eailway Company; and the conveyance of the road and franchises by that company to the defendant by deed o£ August 1, 1868; and we find an act of February 15, 1868, ratifying the purchase by the defendant of the road and franchises. We presume that the purchase had been then made, though the deed followed after.

We have not considered the title of tbe defendant to this road, because we think it immaterial here. The road is actually operated by the defendant, and is, therefore, included in the same class with the other roads of the defendant by chapter 273. And the question before us must rest on the charter of the road, not on the title of the defendant. In saying this, we imply no doubt of the title; we only say that we have not investigated it, because it does not enter into any question before us.

The charter of 1847-1848 appoints commissioners to take subscriptions of stock; and, upon subscription and payment of stock as therein directed, creates the subscribers a corporation vested with the franchises of the act. This act does not create a corporation by its own force only; the prescribed subscription is a condition precedent to the existence of the corporation. The corporation came into existence, probably, upon the election of directors by the subscribers. Putnam v. Sweet, 1 Chandler, 286.

It is not pleaded, and.does not appear, when the corporation was actually organized. For all that appears here, it may have been at any time between 1847 and 1850. We are inclined to think, however, that under such a charter, when the existence of the corporation appears, as here, there is a presumption that it was organized immediately after the passage of the charter. In this case, there is certainly a presumption that the corporation was in esse before the passage of the supplementary act of March 11, 1848, because the act deals with it as an existing corporation by name. This is not, of course, conclusive of the fact, but it is all that we have in this case now; and we must presume, for the purposes of this motion, that the charter was accepted and the corporation organized under it, before the adoption of the state constitution in 1848.

The original charter contains a franchise, upon completion of the road or any ten miles of it, to take such toll as the company should think reasonable.

The road was not constructed till after the adoption of the constitution, but it was constructed under the territorial charter. And the title to the franchise, which runs with the road, dates from the organization of the corporation.

There may be facts which are not before rrs, or there may be legislation which we have not been able to find, which might operate to make the defendant hold the road built in pursuance of the territorial charter, under franchises granted to the defendant, or to the defendant’s grantor, by the state, and so bring the franchises of this road under the reserved power in the constitution. On the argument, we called on the attorney general for information on this point; we were only informed that the territorial charter contained a reserved power to alter or repeal.

On examination, we find this to be a mistake. The only power reserved is in section 20 of the act. And that only provides that in case of violation of the charter by the company, the territorial or state legislature might resume the rights and privileges granted by it.

The right reserved in this section is dependent on violation of the charter. That must first be established. That is clearly a judicial function. We need not stop to inquire whether the territorial legislature could have exercised such a function, under such a clause, and thereupon repeal the charter; nor whether the state legislature could do it now. It is enough that neither has done it. And, in any ease, the power reserved is simply one of repeal, which can in no way aid the application of chapter 273 to the road built under the territorial charter.

Sections 1 and 2 of art. XIV of the state constitution provide, if provision were necessary, for the continuance of the territorial charter in force under the state government.

We have carefully examined the several acts of the state legislature applicable to the title of this road, so far as it is disclosed to us; and we find nothing to defeat or impair the franchises of 1847, as appurtenant to this road, to this day. Sec. 1 of the act of 1860, and sec. 33 of ch. 79 of the Revised Statutes, Doth provide that the purchasers on the foreclosure should take the road with the franchises relating to it, as granted to the original company. And this seems to be recognized by the act of 1868. This is not a new grant of franchise. The state had licensed the mortgage of the road and franchise, the corporation had mortgaged the road and franchise, and both were vested in the purchasers by operation of law. The provision of the act of 1860 was only declaratory of an existing right. And as far as the facts are before us, we see nothing to sever the territorial charter from the road, or to operate as a surrender of that charter or as a relinquishment of the franchises granted by it or as an acceptance of new franchises from the state, to bar the corporation operating the road from relying on the franchises granted by the territory. Neither party appears to have investigated the facts, and they may not be all before us. We rest this opinion on what is before us. And we hold the territorial charter of 1847, enlarged by the territorial act of 1848, to be the existing charter of the road built under it from Milwaukee to Prairie du Ghien.

This charter, being accepted — as we are bound here to assume — before the adoption of the state constitution, is not affected by the reserved power in that instrument. And it is undoubtedly a contract within the rule in the Dartmouth College case, which the state legislature cannot impair. And we have, therefore, the direct question, whether the franchise granted by it, to take such tolls as the company should “ from time to time think reasonable,” is part of the obligation of the contract which the state cannot impair, and whether it would be impaired by the application to it of the rule of fixed maximum tolls prescribed by chapter 273.

We are of opinion that the franchise is not one vesting in the corporation an absolute right of exacting whatever tolls it might see fit. The courts have authority to limit the right to reasonable tolls; to tolls reasonable, not in the arbitrary judgment of the corporation, but in fact. That is, indeed, as against a great railroad company, not a very effective remedy. But the law gives the remedy to all aggrieved by the exaction of unreasonable tolls. The question here, however, is not what the courts can do to control the exercise, but what the legislature can do by statute to limit the right of a franchise so broad that it seems to invite extortion.

We have already sustained the power of the legislature to limit rates of toll of railroads subject to legislative control. But that power rests on the authority of the legislature, not on the reasonable rate of tolls fixed. And the restraint of a franchise to take reasonable tolls, to tolls reasonable in fact, is a judicial, not legislative function. Any authority of the legislature, not under the reserved power of the constitution, to regulate tolls under a franchise to take tolls, cannot be derived from the judicial function, but must rest in some proper legislative function.

And therefore, as far as the legislative power over it is concerned, this must be taken as a valid and -absolute franchise to take tolls at discretion.

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. Yiewed 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.

We have no doubt of the general authority of a state legisla-uure to regulate the tolls of a corporation of this character, as a necessity of public welfare and public order, under the sover sign power of police, when the exercise of that power is not in some way suspended or restrained*

But the right of the corporation here to take tolls at 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 of the charter, within the authorities.

We are not considering the charter as a mere statute. We are considering it, in obedience to the Dartmouth College rule, as a contract. We are not giving our own views of its effect. We are looking at it in the mirage of federal construction. Considering this matter of purely state law and state polity, we are sitting in 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 éxcuse. On this point, we admit and defer to their authority. It is an evil example, subversive of judicial order and judicial authority, not becoming judges or courts, to disregard the authority of courts within their peculiar and appropriate jurisdiction; whether it be of federal by state courts, or of state courts by federal. We do not propose to follow a bad example. And, in all questions under tbe federal constitution, it is the duty and choice of this court to follow, as nearly as it can, the principles and spirit of the adjudications of the federal supreme court.

We think that the state ought to possess the same power over this, as over other railroads. And we think that the right of the state to control territorial charters, independently of the reserved power, ought to exist, as one well founded in principle. We are even inclined to think that the weight of state authority is in favor, rather than against it, even under the Dartmouth College rule. We have considered, with great interest, an able and instructive note of Judge Redfield to the Philadelphia, W. & B. R. R. Co. v. Bowen, Am. Law Reg., March, 1874. We think, however, that the distinguished jurist had too little in his view the spirit and scope of the decisions of the supreme court of the United States; and that he shows rather what the law ought to be, and would be but for those decisions, than what it is under them. He seems to think that the Dartmouth College rule is being pushed to such an extreme as will ultimately defeat it altogether, by a reduetio ad absurd-um. So many are beginning to think, and so we think. But we think that he errs in laying the blame on those who oppose the extent of the rule, which we think belongs to those who support it. But, after very deliberate consideration, we find that principle and state authority leave us no room for doubt, that this case comes within the prohibition, under the decisions of the supreme court of the United States.

We think that the rule to be gathered from all the decisions, and which should govern us, is accurately stated in Judge Cooley’s excellent work, and we give it in his own words:

“ The limit to the exercise of the police powers in these cases must be this: the regulations must have reference to the comfort, welfare or safety of society; they must not be in conflict with any provision of the charter; and they must not, un der pretence of regulation, take from the corporation any of the essential rights or privileges which the charter confers. In short, they must be police regulations in fact, and not amendments of the charter in curtailment of the corporate franchise.” Cooley’s Const. Law, 677.

The fixed limitations of toll in chapter 273, if applied to the territorial franchise, would limit tolls under the latter, whether the fixed rates be reasonable or not. And we think that we have sufficiently explained the conflict between the two, to show that the state act does essentially limit a right which the territorial charter confers.

The very point which arises here has not, so far as we are aware, been passed upon by the supreme court of the United States. But the principle governing it has been, in many cases. We shall not attempt to review the cases. We will only say that a court which has several times held that state relinquishment of the sovereign right of taxation in favor of a corporation is a valid contract which the state cannot impair by resumption of the right to tax, is not to be expected to sustain such a substantial impairment of a franchise to take toll, which, at its worst, could affect no public power of the state, and could only be abused by individual extortion. And, in view of all their decisions, and in submission to them, we feel bound to hold the territorial charter of 1847, enlarged by the territorial act of 1848, to be a contract within the prohibition of the federal constitution, the obligation of which the state can pass no law to impair; and that the provisions of chapter 273, of 1874, limiting the tolls of railroads operated by the Chicago, Milwaukee & St. Paul Company, if applied to the road from Milwaukee to Prairie du Ohien, built under that charter, would impair the obligation of the contract of that charter, and that therefore those provisions of chapter 273 do not apply to that road.

If, indeed, that charter was not accepted and the corporation under it was not organized before the adoption of the state constitution, a grave question would arise of the effect of the reserved power in the state constitution upon the charter accepted and the corporation organized, after that instrument had gone into operation. But that question is not here, and we express no opinion on it.

YIII Before the commencement of the argument an objection was made to the hearing of these motions on the unverified informations of the attorney general, unsupported by affidavit. We hold, on the authority of the Attorney General v. The Cohoes Co., 6 Paige, 133, and other cases, that an information of the attorney general ex officio, acting under the sanction of his oath of office, is equivalent to a bill in chancery verified on information and belief. Like such a bill, it will call, in proper cases, for answer under oath. But, as in case of ■ such a bill, an injunction will not usually go upon it, unsupported by positive affidavit, until after the defendant has had the opportunity to contradict it on oath, and has failed to do so.

We say this now only for the purpose of settling the practice. In these cases the difficulty was cured by affidavits filed by the attorney general before, the motions were heard, which the defendants had leave to answer, of which they declined to avail themselves.

These affidavits, uncontradicted, establish what we presume that defendants denied only pro forma, the disregard of the maximum rates of toll prescribed by chapter 273, of 1874. Indeed some of the affidavits filed by the Chicago, Milwaukee & Si. Paul Company admit the violation of that rule of rates, and some of those filed by the Chicago & Northwestern Company very forcibly imply a similar violation. We therefore take the fact to be undisputed.

IX. These views substantially dispose of these motions. A moving appeal was made to us on the argument, if we -should sustain these informations, to withhold the writs in our discretion. The appeal was such and so made as could not fail to leave a deep impression on our minds. It was founded on very strong affidavits of the injurious effects to these defendants and to the public interest in their well doing, which it was feared would result from the enforcement of the rates of toll prescribed by the statute. These affidavits are entitled to great respect. They are not the affidavits of speculators, at a distance, in the affairs and control of these railroads, reputed to play with the public and private interests involved in them, with cruel success. They are chiefly the affidavits of well known men of high character and standing, of. great experience in the affairs of railroads, and specially conversa.nt with these roads. And we may well be permitted to say here that there is great cause for regret that these men and others like them, acquainted with the state and its people, their resources and their needs, and likely to act in sympathy with them as well as for the true interest of the roads, have not been independent in the local management of these corporations. If they had been, we are quite confident that there would have been no cause for this unfortunate controversy. But the affidavits, after all, give us only their theories, which do not satisfy us of the ruin which they foretell. Still the appeals seemed so urgent and so sincere that they left impression enough on our minds to make us somewhat reluctant to grant the writs. But we have no discretion to disregard our plain duty.

It is true that it is said that the granting or withholding of an injunction rests in the sound discretion of the court. But that is judicial discretion, not willful choice. And the rule is applied to injunctions in aid of private remedies. The same rule applies to mandamus in cases of private right. But it does not apply to the application of 'the writ to thingspublici juris. There the writ goes ex debito justicien. The court has no discretion to withhold it. Tapping, 287.

"We need not repeat here the analogies already stated between the two writs, used as prerogative or quasi prerogative writs, to protect public right. And we have no more discretion to withhold injunction to restrain violation of public right, than to withhold mandamus to enforce public duty.

We have held that here is positive violation of positive public law to positive public injury, and that we have jurisdiction of this writ, as a prerogative writ, to restrain it. There is no room for discretion. The duty is positive, ex debito justiciad. The discretion which we were urged to exercise would be discretion to permit the violation of the laws which we sit hereto enforce. It was said to us by counsel, in a professional and not offensive sense, that we dare not issue these injunctions. We reply that, holding what we have held, we dare not face the judgment of the profession for withholding them.

We disregard the appeal made to us reluctantly. But it is not to us that such appeal should be made. We had no part in promoting these cases. We have no voluntary part in the decision of them. We only obey the law as we understand it. We cannot care for consequences. We must do our duty, be the consequences what they may. If such appeal be fit, it is fit to make to the attorney general, not to us. He can heed it. We cannot.

But while we have no discretion, we have power to impose terms which seem to us just. We have already expressed the opinion that the informations in the nature of quo warranto, pending in this court against these defendants, are not a bar to these informations, and our reasons why this may be considered the better remedy. But we do not think that the attorney general should have both remedies at once. He has an election, but he must elect. If he has these injunctions, he should dismiss those informations. And time will be necessary to these defendants to arrange the change of rates. We presume that the remaining half of this month will be adequate.

And therefore, before these injunctions issue, we require the attorney general to dismiss the pending informations in the nature of quo warranto, and to file in these causes a stipulation signed by him ex officio, and approved by the court, or one of the j ustices of the court, that the state will not proceed by way of quo warranto for forfeiture, or for contempt in violating the injunction to issue against the defendants, for any violation of the provisions of chapter 273, of 1874, involved in these causes, done or suffered to be done prior to the first day of October next.

If the time allowed for the change should be found insufficient, the defendants may move, on notice and proper proofs, to enlarge it, on either of the remaining Tuesdays of this month.

On the terms stated, the injunctions will issue as to all the roads of the Chicago & Northwestern Company, and as to all the roads of the Chicago, Milwaukee & St. Paul Company, except the road from Milwaukee’ to Prairie du Chien, built under the territorial charter of 1847-1848.

If the attorney general should be advised'that the corporation under the territorial charter was not organized until after the adoption of the state constitution, he will be at liberty to renew his motion as to the road now excluded from the injunction. •

If the Chicago & Northwestern Company should make it appear that one of the roads now included in the injunction was organized under the general railroad act of 1872, they will be at liberty to move to dissolve the injunction as to such road.

Put if such motions should be made, they will be heard only on the particular ground reserved in each case in this opinion.

No statute could have force to abolish any writ given to this court by the constitution, as it existed when the constitution was adopted. And, as our jurisdiction is founded on the writ of injunction, we think it better practice, in such cases, to send out the writ itself.

See sec. 5, cli. 115, R. S: