CASES ARGUED AND DETERMINED

AT THE

June Term, 1874.

THE ATTORNEY GENERAL VS. THE CHICAGO AND NORTHWESTERN RAILWAY COMPANY.

THE ATTORNEY GENERAL VS. THE CHICAGO, MILWAUKEE AND ST. PAUL RAILWAY COMPANY.

JURISDICTION: SUPREME COURT: INJUNCTION: CORPORATIONS. (1, 2) Original jurisdiction of supreme court. (3) Its jurisdiction of injunc tion. (4-6) Jurisdiction of equity to restrain corporations from excess or abuse of franchise, etc. (7-11) Questions touching the exercise of such jurisdiction.

STATUTES: CONSTRUCTION: CONSTRUCTIVE REPEAL. (12-15) Rules as to constructive repeal. (16) Misnomer of corporation in statute. (17, 18)

Ch. 273, Laws of 1874, an amendment of special charters, and not affected by constitutional amendment of 1871. RAILROADS: LEGISLATIVE REGULATION OF TOLLS: CONSTITUTIONAL

LAW. (19-28) Power of the legislature to alter railroad charters granted by the state, and to limit tolls. Sec. 1, art. XI of state constitution. (29-40) Power of state legislature as to territorial acts of incorporation. (41) Ch. 273, Laws of 1874, how far valid.

INFORMATIONS BY ATTORNEY GENERAL: PRACTICE. (42) Temporary injunction; unverified information. (43) Election of remedies. (44) Such election enforced in this case. (45) Temporary injunction, from this court, will be by writ.

1. That clause of sec. 3, art. VII of the constitution of this state, which

empowers the supreme court "to issue writs of habeas corpus, mandamus, iujunction, quo warranto, certiorari," etc., and to "hear and determine the same," was designed to give this court original jurisdiction of all judicial questions affecting the sovereignty of the state, its franchises and prerogatives, or the liberties of its people.

The Attorney General vs. Railroad Companies.

2. Hereafter, in all cases in which an exercise of this original jurisdiction is sought, leave must be obtained of the court upon a prima facie showing that the case is a proper one for its cognizance.

3. This court has original jurisdiction of the writ of injunction, as a quasi prerogative writ, where that is the proper remedy, in matters publici juris, within the scope of the jurisdiction upon information of the attorney general; but not in suits between private parties or for the determination of mere private rights.

4. Courts of equity have jurisdiction, upon information of the attorney general, to restrain corporations from excess or abuse of corporate franchise, or violation of public law to the public detriment.

5. This jurisdiction of equity was already established at the time of the adoption of our state constitution; and sec. 5, art. I of that instrument (which declares that "the right of trial by jury shall remain inviolate, and shall extend to all cases at law"), has no application to it. But the defenses to the present informations rest only in questions of law, and the granting of the injunctions sought will not have the effect to deprive defendants of any trial by jury.

6. Secs. 13 and 14, ch. 148, R. S., neither confer any jurisdiction upon this court, nor limit its jurisdiction. Whether they limit the jurisdiction of the circuit courts in cases of injunction against corporations, is not here determined.

7. Ch. 273, Laws of 1874, after fixing the maximum tolls chargeable by railroad companies in this state, gives certain civil remedies against the companies to persons injured by violations of the rates so fixed, and also provides penalties against the agents of the companies who may be guilty of such violations; but it does not provide penalties against the companies themselves. Held, that the legal remedies so provided furnish no sufficient ground for denying the relief here sought by injunction against the corporations.

[8. It seems that the rule that equitable proceedings will not lie to enforce a statute which provides penalties for all violations thereof, is not applicable to an information of the attorney general to restrain a violation of public right by a corporation. But it was not necessary to decide that question here.]

9. It is no objection to the granting of an injunction in such a case, that the information does not show any specific injury done to the public; but it is sufficient that facts are alleged which satisfy the court that there is disobedience of the law by the defendant, productive of public mischief.

10. In such cases the court cannot speculate whether obedience to the law by the defendant may not cause greater mischief to the public than is caused by disobedience.

The Attorney General vs. Railroad Companies.

11. The rule that the granting or withholding of an injunction rests in the sound discretion of the court, relates only to judicial discretion, and to injunctions in aid of private rights. The granting of an injunction (or a mandamus) as a quasi prerogative writ, when necessary to protect public right, is not a matter of discretion.

12. Where there are two affirmative statutes upon the same subject, without any express words of repeal, one is not to be construed as repeal. ing the other, if both may consist together; and the court ought to seek such a construction as will reconcile them together.

13. Chapters 292 and 341, Laws of 1874 (approved March 12), are both susceptible of being so construed as to consist with ch. 273 of the same year (approved March 11); and the last named act is not repealed by either of the former.

14. The question of repeal being one of legislative intent, the facts that the three acts were pending together, and were all passed within two successive days, and that the legislature, by a subsequent joint resolution, directed the publication of ch. 273 to be delayed so that it should not become a law until after the other two acts had taken effectmay be considered by the court, as showing that the legislature did not intend any repeal.

[15. Possibly if the acts were inconsistent, ch. 273, by reason of such later publication, would repeal such parts of the other acts as were irreconcilable with it.]

16. Ch. 273, Laws of 1874, in its classification of the railroads of this state, names among those in "Class A.," the "Milwaukee & St. Paul Railway Company." One of the defendant companies was formerly known by that name, and was so designated in previous acts of the legislature, granting powers here claimed by said company by virtue of such acts, including an act approved March 10, 1874. In Febru ary, 1874, however, under a general statute providing for such changes of corporate names, said company had changed its name to the "Chicago, Milwaukee & St. Paul Railway Company," by which name it is here made defendant. No other company has ever been known in this state by the name first above stated. Held, that the provisions of said act relating to the "Milwaukee & St. Paul Railway Company" must be regarded as applying to said defendant.

17. The constitutional amendment of 1871 (which prohibits the legislature from passing special laws, amongst other purposes, " for granting corporate powers or privileges, except to cities," and directs it to provide general laws for such purposes, "which shall be uniform throughout the state"), rclates only to acts of incorporation thereafter to be granted, and does not impair the power of alteration or repeal, reserved to the legislature by the state constitution, in respect to charters granted prior to such amendment.

The Attorney General vs. Railroad Companies.

18. Whether said ch. 273, considered as an amendment of the general rail road law of 1872, would be invalid under said constitutional amend ment of 1871, because not uniform in its operation throughout the state, is not here decided; the provisions of said act touching the de fendant companies being regarded as an alteration of their special charters.

19. Under the decisions of the supreme court of the United States in Dartmouth College v. Woodward, and subsequent cases, this court must hold that charters granted to private corporations, including railroad companies, are contracts, within the meaning of subd. 1, sec. 10, art. I of the constitution of the United States, which prohibits the passage by a state of any "law impairing the obligation of contracts." 20. Although the legislature has a general authority to regulate the tolls of railroads under the police power, where the exercise of that power is not in some way suspended or restrained, yet such power cannot be exercised where the right of a railroad company to take tolls at its discretion is fixed by its charter, without any reserved right in the legislature to alter such charter.

[21. Under a grant to a railroad company of a right to take such tolls as it shall think reasonable, it seems that a person aggrieved by the exaction of unreasonable tolls would still have a remedy by an action at law, and that the courts would have power to determine whether the tolls charged were reasonable in fact.]

22. Sec. 1, art. XI of the constitution of this state, after empowering the legislature to create “corporations without banking powers or privi leges," provides that "all general laws or special acts enacted under the provisions of this section may be altered or repealed by the legis lature at any time after their passage." Held, that this reserved power to alter or repeal operates as a qualification of every such grant of corporate franchises made by the legislature of this state, and a subsequent exercise of such reserved power cannot be regarded as impairing the obligation of the contract.

23. The power so reserved is limited only by the words used to express the reservation. A corporate charter of one kind cannot be changed into one of an entirely different kind, under the power to alter, but may be changed in detail, so long as the general identity of the corporation remains. And where the charter of a railroad company empowers it to exact tells at its discretion, an act of the legislature restricting the company to the maximum rates prescribed, is an alteration within the scope of such reserved power.

24. This power to alter or repeal the charters of corporations does not af fect their rights in their property, other than the franchises; but such rights remain inviolable.