35 Wis. 425 | Wis. | 1874
Lead Opinion
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.
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
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
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,
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 constitu
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
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,
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 pri
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.
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
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
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
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
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.
“ 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.
*526 “ 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;*527 "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-
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 ad
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 Rail
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
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
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
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
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
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
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*539 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 estrepe*540 ment 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.
*541 “ 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 juris
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 inter
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,
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 assum
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.”
| 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
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
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 specifi
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.,
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.
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
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
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.
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
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
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 an
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
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
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.
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.
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
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
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.*564 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
“ 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 instru
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
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
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*569 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*
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
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
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, essen
’ 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.
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
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
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 lim
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 in
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
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.
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
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 ver
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.
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 ac
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.
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.
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
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
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-
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
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*592 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
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
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 discre
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
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:
Concurrence Opinion
concurring, an order was made by the court, on the 15th day of September, in accordance with the foregoing opinion. Afterwards the attorney general moved to vacate so much of said order as excepted from the injunction
The motion was granted, and the following opinion filed, on •the 29th day of September:
In passing upon the principal motion of the •attorney general for an injunction against the defendant, we •excepted from the writ then allowed, the railroad of the defendant from Milwaukee to Prairie du Ghien, built under the ■territorial charter of 1847-1848. There was then no evidence before us of the time when the Milwaukee & Waukesha Railroad Company was organized under that charter. But we held that, in the circumstances, and especially because there seemed ■to be a recognition of the corporation as organized in the territorial act of 1848, there was a presumption that the' charter was accepted and the corporation organized before the adoption •of the state constitution. But there was sufficient doubt of the actual fact to induce us to give leave to the attorney gen•eral to renew his motion so as to include that road in the injunction, if he should be so advised.
He has accordingly made this motion, and in support of it he produces a certified copy of the statement of subscription .and payment of capital stock, required by sec. 2 of the charter of February 11, 1847, dated April 5, 1849, and filed, as the section .'required, with the treasurer of Milwaukee county, in the same month ; and also an affidavit of the election of the first board • of directors, May 10, 1849.
This is conclusive of the fact that the charter was accepted .and the corporation organized many months after the adoption ■ of the constitution and the admission of the state into the Union by congress. It would have saved great trouble had . the attorney general presented the fact on the first motion.
It is true that the defendant has filed an affidavit showing .that, as early as November, 1847, and from thence till the or
We do not think that these statements touch the conclusion to which we have come. The proceedings led up to the acceptance of the charter, but could not, by the terms of the-charter, operate as an acceptance of it. Even if it had appeared-that there were subscriptions to the stock before the-territory had become -a state, such subscriptions, short of $100,000, required by the charter, could give no right to the subscribers to accept the charter. The terms of the charter expressly exclude such a right. The charter prescribes the-conditions of acceptance. It gives no such right - to the com- ‘ missioners. They were only officers of the territory to fulfill a given function. And it gives no such right to the subscribers, until they should have subscribed the entire capital stock and made certain payments towards it. Then, and then only, the-charter confers on them the right of acceptance, in the manner which it provides; that is, by filing the very certificate of April 5, 1849. On and by the domg of that, the charter declares that the subscribers should be created a corporation. And thereupon an election of directors should be had, until which the commissioners should act as directors. There may be some doubt when the corporation actually came in esse, whether on the filing of the statement or on the election. Putnam v. Sweet,. 1 Chandler, 286. That question is not material here. It is very certain that, by the terms of the charter, it was accepted by the making or the filing of the statement, and not before.
Such a charter is held to be a contract between the political body granting it, and the corporators under it. The territory of Wisconsin proffered such a contract by the charter in question. So proffered, it remained a mere proposal, in fieri, until accepted according to its terms. Who could accept it? Not the commissioners, as we have seen. Only the subscribers. When could they accept it? Only upon subscription of the full amount of capital stock. How could they accept it ? By making and filing the statement of subscription. And the commissioners could do no act, at any time, tending to prove acceptance, because they had no right to accept. And the subscribers could do no act tending to prove acceptance, before subscription of the whole capital stock; because, until then, they had no right to accept. Such evidences of acceptance as the defendant relies on, must be accompanied by a present right to accept, or they go for nothing.
The territorial charter remained a naked, unaccepted proposition until April 5, 1849, long after the territory had ceased and the state was in existence.
Some cases were cited to show that legislative recognition in a subsequent statute of a corporation de facto, will cure irregularities in its organization and waive forfeitures incurred. People v. Manhattan Co., 9 Wend., 351; Railroad Co. v. Barnard, 31 Barb., 258. We do not perceive the application of these eases to aid the view of the defendant. The principle on which they rest appears to us to go the other way. Such recognition has relation to a corporation in esse, waiving irregularity and forfeiture. An act of the legislature relating to a corporation, not creating or authorizing one, may well have the effect of
The attorney general having established the fact, as we now hold it to be established, we signified our intention to confine the further discussion of this motion to the legal effect of the fact on the question of the right of the state to alter or repeal the charter. Two other points were discussed, however, which we shall briefly notice.
It was urged, against the views we had before expressed, that the state statutes authorizing the mortgage of the road built under the territorial charter, and authorizing the purchasers on foreclosure to organize anew with the territorial franchises, operated as a grant from the state of the franchises of the territorial charter. We cannot think so, for the reasons assigned in our former opinion. The franchise is quasi property ; and by whomsoever held, under whatsoever chain of title, is derived from the territorial charter, not from the state statutes. The state statutes did not create it, and do not grant it. They simply authorized the sale and purchase, and the organization by the purchasers of a new corporation, to hold the old franchise, under the old grant. The state statutes are merely enabling acts, conferring no franchise, but only authorizing the transfer of the title to existing franchises. If one purchase under a statute enabling a person, otherwise incompetent, to convey, or enabling a corporation, before unauthorized, to convey, he surely does not take his title from the state; hé takes his title by authority of the state, but he takes it from his grantor. The title of the Milwaukee & Prairie duOhien Company to the franchise was derived from the territorial charter, though so derived and held by permission of the state. The question turns on the title of the vendor, not on the license given to him to
It was suggested with much ingenuity that, as the territory was the creature of the United States, the state upon its organization succeeded to the sovereign rights of the United States in the territory, as well those reserved by the United States as those delegated to the territorial government; full sovereignty subject only to the federal constitution; and that, as the organic act of congress reserved to that body the right to annul all acts of the territorial legislature, the state succeeded to that right. We cannot think so. Waiving all question of the sovereign rights of the United States over the territory, the state came into the union “ on an equal footing with the original states in all respects whatever.” The United States derive their powers from the states, not the states theirs from the United States. And though Wisconsin became a constituent of the United States ‘as one born out of due time,’ it is none the less an equal constituent with the original states. On its establishment, it took no governmental rights or powers from the United States, as a state. As a member of the union, it took, in common with all the other states, such rights as the federal constitution confers on the original states, as members-of the union. The sovereignty and rights of sovereignty of this state came from no organized power. They are inherent in and are derived from its people. The power of congress over territorial legislation was an incident to the territorial condition, and lapsed, with the territorial government, when the state
On the argument of the principal motion, it was not suggested at the bar, and it wholly escaped our attention, that a general act concerning corporations in the territorial revision of 1839 reserved to the territorial legislature power to amend, alter-or repeal all subsequent' acts of incorporation. This act remained in force until the first state revision in 1849, when it, with' many others, was repealed; the repeal to take effect January 1, 1850; with a saving clause, that the repeal should not affect any right accrued under any of the statutes so repealed.
The attorney general has now called our attention to this act. And it was argued that the reserved right to amend, alter or repeal the territorial charter, entered into and became a. part of the contract of the charter, when accepted; and thus became a right accrued, which was not affected by the repeal; that the repeal could not take effect as to the territorial charter, so long as the charter itself remained unrepealed; the reserved power continuing so far to exist, by force of the charter itself, as a contract. These are nice questions, not necessary to the disposition of this motion, and on which we shall therefore not express an opinion.
If the territorial charter be a contract, as is held, it became such only upon acceptance by the corporators. Before that, as already seen, it rested in proposition, to ripen into a contract upon acceptance in the manner which it provided. And being so accepted after the territory had ceased to exist, it never became a contract between the territory and the corporation. The state constitution, as already observed, continued in force all territorial acts not repugnant to it. The charter thus became a statute of the state. And its acceptance, after the organization of the state, so far as it is a contract, makes it mani
The state adopted the charter, then a mere statute, not a contract, so far only as it was not repugnant to the constitution. With the reserved power of the territorial act of 1839 entering into it and forming part of it, as a proposition, it was in no way repugnant to the constitution. Without that power, it manifestly was. It is true that the language of sec. 1, art. XI, is expressly prospective. But it is prospective not only as to acts of incorporation, but also as to the formation of corporations. “All general and special acts enacted under the provisions of this section may be altered or repealed and, “corporations may be formed,” etc. The whole section, taken together, signifies clearly, not only that no charters should be passed, but also that no corporations should be formed, not subject to the reserved power. It seems to us quite plain that a territorial charter, not subject to the reserved power, and not yet accepted, was “a law in force in the territory, repugnant to this constitution.” Art. XIY, sec. 2. And the position that its acceptance from the state, after the adoption of the constitution, was an acceptance subject to the reserved power in the territorial act of 1839, and in sec. 1, art. XI of the constitution, is certainly a very strong one. There is high authority for going even further. After saying that a private corporation may forfeit its franchises by misuser or nonuser, Mr. Justice StoiíT says: “ This is the common law of the land, and is a tacit condition annexed to the creation of every such corporation. Upon a change of government, too, it may be admitted that such exclusive privileges attached to a private corporation as are inconsistent with the new government, may be abolished.” Terrell v. Taylor, 9 Cranch, 43. A fortiori may this be said of a, charter passed before and accepted after a change of government. There is indeed some conflict between these views and
It was quite competent for the state constitution to have repealed all laws of the territory which had not ripened into contracts, under the rule in Dartmouth College v. Woodward, 4 Wheat., 518. So was it competent for it to adopt them. So, also, to adopt them sub modo; This last is what the constitution did. Sec. 1, art. XIY, provides that all rights, actions, contracts, etc., as well of individuals as of corporations, shall continue and be as valid as if no change from territorial to state government had taken place. This provision is in favor of rights.and contracts, and is properly absolute. It might have applied to the territorial charter, if then accepted. Sec. 2 provides that all laws then in force in the territory, not repugnant to the constitution, should remain in force, until they should expire by their own limitation or be altered or repealed by the legislature. This provision has relation to public policy, and is properly subject to absolute legislative control. The distinction is a just one, and is very marked and manifest.
It may be that the territorial laws would have survived the change, without this constitutional provision, as the laws of conquered countries are said to survive conquest. Even in that case, they would have been subject to repeal. But the territorial laws actually survived the change by force of no such principle, but by the express provision of the constitution. That instrument expressly continued them in force, until altered or repealed by the legistature, and no longer. The effect is to render subject to subsequent alteration or repeal, all territorial laws which were then subject to alteration or repeal. This makes all such laws expressly subject to alteration or repeal, the identical words of the reserved power in sec. 1, art. XI. And this use here of the very words used
We therefore hold that the unaccepted territorial charter of the Milwaukee & Waukesha Railroad Company, till then suR ject to alteration or repeal by the territorial legislature, was continued in force by sec. 2, art. XIY of the constitution, subject to alteration or repeal by the state legislature, just as a charter granted by the state ; and all the positions of our former opinion in regard to state charters apply equally to the territorial charters of 1847-1848.
The present motion of the attorney general must therefore be granted.
By the Oourt. — So ordered.
