Attorney General v. Chicago & N.W. Ry. Co. | Cases | Westlaw

**1 *432 INFORMATIONS for Writs of Injunction.

These were informations filed in this court July 8, 1874, by the attorney general of this state, acting for the state, praying for writs of injunction to restrain the two defendant companies from exacting tolls for the carriage of passengers or freight in excess of the maximum rates established by ch. 273, *433 Laws of 1874. When these proceedings were commenced, there were pending in this court informations in the nature of quo warranto, filed by the attorney general June 2, 1874, against the same defendants severally, to have a forfeiture of their charters adjudged for their alleged violations of the same act in exacting tolls higher than were therein authorized.

I. The following acts of the legislature of this state, and the facts stated in connection therewith, touching the corporate existence and powers of the Chicago & Northwestern Railway Company, are referred to in the pleadings and arguments herein: 1. An act approved August 19, 1849, incorporated the Madison & Beloit Railroad Company, with power to construct a railroad from Beloit, by way of Janesville, to Madison, and authorized the directors to regulate the amount of tolls to be charged on such road. 2. Ch. 219, Laws of 1850, authorized said company to extend its road from Janesville to Lake Winnebago, by way of Fort Atkinson, Jefferson and Watertown; and provided that after the company should assent to the act, it should be known as the Rock River Valley Union Railroad Company. 3. By an act approved March 19, 1855 (P. & L. Laws of 1855, ch. 137), “the Illinois & Wisconsin Railroad Company in the state of Illinois, and the Rock River Valley Union Railroad Company in this state,” were authorized “to consolidate the capital stock of the two companies, and to make the two companies one,” and to place their affairs and property under the direction of one board of directors; and the consolidated company was authorized to select for itself any name which the board of directors should see fit, and a certificate of such organization and name was to be deposited with the secretary of state of this state, etc. The act further provided that such consolidated company should “remain subject to the laws of the state of Wisconsin and the state of Illinois respectively,” and should have “in all respects the same privileges as though the consolidation had not taken place;” with a proviso that the laws of Illinois should have no force *434 or effect in this state under the provisions of the act. It appears that the Illinois & Wisconsin Railroad Company possessed under its charter a like power of consolidation, and that pursuant to these acts a consolidation of the two companies was effected on the 30th of March, 1855, and the consolidated company adopted the name of the Chicago, St. Paul & Fond du Lac Railroad Company. 4. An act approved October 11, 1856 (Laws of 1856, ch. 137), is entitled “An act to execute the trust created by an act of congress entitled 'an act granting public lands to the state of Wisconsin to aid in the construction of railroads in said state,' approved June 3d, 1856, by incorporating the Wisconsin & Superior Railroad Company, and granting a portion of said lands thereto.” This act, among other things, empowers the company so incorporated to build, maintain and operate a railroad from the city of Fond du Lac, by way of the city or town of Oshkosh, northerly to some point on the St. Louis River or some point on the state line within the requirements of the act of congress referred to in the title; and also empowers it, on the completion of said road or any part of it, “to demand and receive such sum or sums of money for the transportation of persons and of property, and for the storage of property, as it shall from time to time deem reasonable.” It appears that under this act the Wisconsin & Superior Railroad Company was duly organized. 5. The provisions of ch. 121, Laws of 1856, preserved in sec. 33, R. S. of 1858, are recited below (II, 11). 6. An act of the legislature of this state approved February 12, 1857 (ch. 17, P. & L. Laws of 1857), authorized the Chicago, St. Paul & Fond du Lac Railroad Company and the Wisconsin & Superior Railroad Company to consolidate their capital stock, “and to make the two companies one, and to place the affairs and property of the two companies under the direction of one board of directors,” etc.; and provided that when there should be deposited with the secretary of state of this state a certain certificate showing the fact of such consolidation, “therefrom and thereafter all the *435 rights, franchises, privileges, powers, immunities, property and causes of action” of the two companies so consolidated, and of the two former companies previously consolidated as above mentioned (viz., the Illinois & Wisconsin Railroad Company and the Rock River Valley Union Railroad Company), should be transferred to, conferred upon and owned by the consolidated company thus created. It appears that the consolidation here authorized was effected on the 5th of March, 1859, and that the title of the consolidated corporation was the Chicago, St. Paul & Fond du Lac Railroad Company. 7. An act approved March 14, 1859 (P. & L. Laws of 1859, ch. 108), provides that “in case the railroad of the Chicago, St. Paul & Fond du Lac Railroad Company, or any part of said railroad lying within this state, shall be sold by virtue of any mortgage or mortgages, or deed or deeds of trust, * * * the purchaser or purchasers, * * his or their associates, successors or assigns, if desiring to form a corporation under or by virtue of the laws of this state, or of the states of Illinois or Michigan, or any or all of said states, may file in the office of the secretary of state of this state a certificate,” specifying certain facts, and signed by such purchaser or purchasers, etc., and that thereupon the persons who shall have signed such certificate “shall be a body politic and corporate by the name stated in such certificate, and the said corporation shall possess all the privileges, powers, authorities and capacities acquired by said purchaser or purchasers or possessed by the Chicago, St. Paul & Fond du Lac Railroad Company by virtue of any law of this state or of the states of Illinois or Michigan,” etc., etc. It appears that an act of a similar character was passed by the legislature of Illinois in reference to the property and franchises of the same company in that state, which act was approved February 19, 1859; and that afterwards, on the 2d of June, 1859, the railroad and franchises of said Chicago, St. Paul & Fond du Lac Railroad Company were sold by virtue of certain trust deeds which had been given by said company to secure its indebtedness; *436 that the purchasers were Samuel J. Tilden and O. D. Ashley; and that on the 7th of the same month said purchasers became a corporation under the name of the Chicago & Northwestern Railway Company in pursuance of the laws of this state and of Illinois above mentioned. On the first of January, 1874, and from thence until the filing of these informations, said company owned and operated about five hundered miles of railroad in this state.

**2 II. The following statutes touching the corporate existence and powers of The Chicago, Milwaukee & St. Paul Railway Company, and the facts stated in connection therewith, are referred to in the pleadings and arguments herein: 1. An act of the legislature of the territory of Wisconsin, approved February 11, 1847, is entitled “An act to incorporate the Milwaukee & Waukesha Railroad Company.”Sec. 1 declares that nine persons, designated by name, “are hereby appointed commissioners, under the direction of a majority of whom subscriptions may be received to the capital stock of the Milwaukee & Waukesha Railroad Company, hereby incorporated; and they may cause books to be opened * * * for the purpose of receiving subscriptions to the capital stock of said company,” etc. Sec. 2 declares that “the capital stock of said company shall be one hundred thousand dollars, in shares of one hundred dollars each; and as soon as one thousand shares of stock shall be subscribed, and five dollars on each share actually paid in, and a statement shall be deposited with the treasurer of the county of Milwaukee, authenticated by the oath of the secretary and two or more of said commissioners, that such subscriptions and payments have been in good faith made, the subscribers of such stock, with such other persons as shall associate with them for that purpose, their successors and assigns, shall be, and they are hereby declared and created a body corporate and politic, by the name and style of the Milwaukee & Waukesha Railroad Company, with perpetual succession,” etc., etc. Sec. 3 provides that said commissioners, or a majority of them, after *437 the said one thousand shares of stock shall have been subscribed, shall give a certain notice of the time and place by them appointed for the subscribers or stockholders to meet for the purpose of electing nine directors; but there is a provision that previous to such first election, the commissioners named in section one of the act shall perform all the duties and be invested with all the powers of directors. The act empowers the company (sec. 8) to construct a railroad from the city of Milwaukee to the village of Prairieville (now Waukesha), and to transport “property and persons upon the same by the power and force of steam,” etc.; and it further provides (sec. 15) that “on the completion of said railroad, or any portion of the track not less than ten miles, it shall * * be lawful for the company to demand and receive such sum or sums of money, for passage and freight of persons and property, as they shall from time to time think reasonable.”Sec. 5 also declares that the directors shall have power, among other things, “to regulate tolls.” 2. An act of the territorial legislature, supplementary to the former, was approved March 11, 1848. Sec. 1 declares that the Milwaukee & Waukesha Railroad Company is thereby empowered to extend, lay out and continue the railroad authorized by the preceding act, from the village of Waukesha “to such point in the village of Madison, in the county of Dane, and thence west to such point on the Mississippi River, in Grant county, as the said company may determine.”Sec. 2 reads as follows: “Whenever the said company shall decide to extend said railroad as aforesaid, they may increase their capital stock to three millions of dollars, which shall be subscribed in shares of like amount as the original stock of said company, and for that purpose may open anew their books of subscription, or open new books for the subscription of such additional stock, and may appoint such agent or agents to attend to the same as may be necessary for carrying out fully the provisions of this section.”Sec. 3 provides that said company “shall have the same powers” in locating and constructing *438 the road from Waukesha to Madison and thence to the Mississippi River, “that they have upon that portion of the road from Milwaukee to Waukesha;” and that “““all powers, regulations and restrictions, and all authority granted to and liabilities of said company shall not in any manner be abridged, extended or altered by the increase of capital stock and extension of the road as aforesaid, except such alteration, extension and increase as is authorized by the provisions of this act.” 3. An act of the state legislature, approved March 12, 1849 (ch. 92, Laws of 1849), empowers the common council of the city of Milwaukee “to subscribe, in behalf of that city, to the capital stock of the Milwaukee & Waukesha Railroad Company, incorporated February 11, 1847, by the legislature of Wisconsin territory, or to the capital stock of any other railroad company which is now or may hereafter be incorporated for the purpose of constructing a railroad from the city of Milwaukee to the Mississippi River,” etc. 4. Ch. 49, Laws of 1850, among other things, changes the name of said company to the “Milwaukee & Mississippi Railroad Company.” 5. By ch. 64, Laws of 1851, said company last named was empowered to borrow money, and to “““make and execute in their corporate name, all necessary writings, notes, bonds or other papers, and make, execute and deliver such securities in amount and kind as may [might] be deemed expedient by said corporation;” and “the powers of said corporation for the purposes aforesaid, and for all purposes necessary to carrying out the object of said company, namely, the construction of a railroad from Milwaukee to the Mississippi River,” were by said act ““ratified and confirmed, and the contracts and official acts of said company declared binding in law and equity upon said corporation, and upon all other parties to said contracts.” 6. Ch. 238, Laws of 1852 (approved April 7 of that year), incorporated the Southern Wisconsin Railroad Company, with power to build a railroad from Milton, in Rock county, by way of Janesville, through Green, La Fayette and Grant counties to the Mississippi *439 River, and to carry property and persons thereon; and it provided that the directors of said company should have “full power to regulate tolls,” etc. 7. Ch. 255, P. & L. Laws of 1853, empowers the Milwaukee & Mississippi Railroad Company to purchase that portion of the Southern Wisconsin Railroad, then constructed or thereafter to be constructed, lying between Janesville and its intersection with the road of the first named company at Milton, together with the real estate, personal property, franchises, etc.; and declares that upon such purchase, and a conveyance made in pursuance thereof, such portion of railroad, with the property and franchises appurtenant thereto, necessary for the full use and enjoyment of the same, shall become incorporated and merged in the property and franchises of the Milwaukee & Mississippi Railroad Company, and said company shall have the right to operate, maintain, complete and reconstruct such portion of road, and to manage and control the same in all respects and to the same extent as if the same had been located and constructed as part of the railroad of said company. 8. Ch. 149, Laws of 1852, incorporated the Madison & Prairie du Chien Railroad Company, with power to build and operate a railroad between the points designated in its name, and authorized the company “to demand and receive such sum or sums of money for passage or freight of persons or property as they shall [should] from time to time think reasonable.” The act also conferred upon the directors of the company, among other powers, “full power to regulate tolls.” 9. Ch. 320, Laws of 1853, provides for a consolidation of the capital stock of the Madison & Prairie du Chien Railroad Company with that of the Milwaukee & Mississippi Railroad Company, and declares that all the rights, privileges, grants, powers and immunities conferred by the charter of the said Madison & Prairie du Chien Railroad Company are transferred to and conferred upon the Milwaukee & Mississippi Railroad Company. 10. Ch. 61, P. & L. Laws of 1855, empowers the Milwaukee & Mississippi Railroad Company to construct *440 a railroad, from a point on its then existing line in Rock county, through Janesville, Monroe, Shullsburg and Benton, to the Mississippi River. Pursuant to this authority, the company afterwards built a road from a point in Rock county to the village of Monroe, in Green county. 11. Ch. 121, Laws of 1856 (“An act concerning railroads”), approved October 10 of that year, empowers all railroad companies of this state to borrow money, etc., and to execute mortgages or trust deeds of their respective roads, constructed or in process of construction, and to make provision in such instruments “for pledging or transferring their railroad track, right of way, depot grounds, rights, privileges, franchises, immunities, machine houses, rolling stock,” etc., as security for their indebtedness; and it provides that in case of a sale by virtue of such a trust deed, or upon foreclosure of such a mortgage, the parties acquiring title under any such sale, and their associates, successors or assigns, shall acquire thereby, “and shall exercise and enjoy thereafter all and the same rights, privileges, grants, franchises, immunities and advantages in and by said mortgage or trust deed enumerated and conveyed, which belonged to or were enjoyed by the company making such deed or mortgage,” as to the portion of road so mortgaged or deeded; and that such purchasers, etc., may organize anew under the same or a different name, etc. The act further extends its provisions to all mortgages and trust deeds theretofore executed by any railroad company, provided such company should accept the same by resolution duly certified and filed with the secretary of state. These provisions of the act were preserved in sec. 33, ch. 79 of the Revised Statutes of 1858. 12. Ch. 308, Laws of 1860, entitled “An act to facilitate and authenticate the formation of a corporation by the purchase of the Milwaukee & Mississippi Railroad Company,” provided that in case the railroad of the Milwaukee & Mississippi Railroad Company, or any part thereof, should be sold by virtue of any mortgage or deed of trust, the purchasers, their associates, successors or assigns, if *441 desiring to form a corporation under the laws of this state, might file in the office of the secretary of state a certificate there described, and thereupon the persons named in the certificate should be a body politic and corporate by the name stated in such certificate; and that such corporation should “possess all the privileges, powers, authorities and capacities acquired by the said purchasers, or possessed by the Milwaukee & Mississippi Railroad Company, by virtue of the charter of said company and of any law of this state.” It appears that the road of the Milwaukee & Mississippi Railroad Company extending from Milwaukee to Prairie du Chien, had been conveyed by trust deeds to Isaac Seymour, to secure bonds of the company which had been sold to raise funds for building said road; that default was made on said bonds in 1860; that a decree of foreclosure was obtained under said trust deeds, and the road with the appurtenant property and franchises of the company sold January 18, 1861; and that a new corporation was formed by the purchasers in pursuance of the acts above described, under the name of the Milwaukee & Prairie du Chien Railway Company, the articles of association of which were filed in the office of the secretary of state, January 21, 1861. 13. Ch. 65, P. & L. Laws of 1868, declares that “the purchase by the Milwaukee & St. Paul Railway Company of the railway property, rights and franchises of the Milwaukee & Prairie du Chien Railroad Company, and also the sale and conveyance of the same by the said last mentioned company, are authorized, ratified and confirmed,” etc. It appears that the Milwaukee & Prairie du Chien Company conveyed its said road and franchises to the Milwaukee & St. Paul Company, August 1, 1868. 14. Ch. 198, Laws of 1852, provides for incorporating the La Crosse & Milwaukee Railroad Company, with power to build and operate a railroad between the two places designated in its name, and “to demand and receive such sum or sums of money for passage and freight of persons and property, as they shall from time to time think proper.” The directors were also empowered *442 “to regulate tolls and charges for the transportation of freight and passengers,” and also to make such contracts with any person whatsoever, as the execution and management of the works, and the convenience and interests of the company might require. It appears that the company was duly organized, and the road built; that in December, 1856, to secure payment of its bonds in a large amount sold to raise money for the construction of the road, the company executed a trust deed of so much of its road as lay between Portage City and La Crosse; that, upon default made and decree of foreclosure and sale obtained, that part of the road included in said trust deed was sold to one Pratt and one White, April 25, 1863; and that on the 5th of May following, the purchasers filed articles of association in the office of the secretary of state, and became a corporation under the name of the Milwaukee & St. Paul Railway Company. Ch. 358, P. & L. Laws of 1864 (approved April 2), entitled “An act to amend the articles of association of the Milwaukee & St. Paul Railroad Company,” empowers the company to issue preferred and special stock, etc. 15. Ch. 450, Laws of 1852 (approved April 17 of that year), provides for the incorporation of the Milwaukee & Horicon Railroad Company, with power to build a railroad from Milwaukee, by way of Iron Ridge and Horicon, to some point on the Fox river, and “to demand and receive such sum or sums of money for passage and freight of persons and property, as they shall from time to time think reasonable.” It appears that the company was duly organized, and the road built; that, upon default in payment of bonds issued to raise money for building the road, the trustees named in a deed of trust given as security for such bonds, obtained a decree of foreclosure and sale; and that the road, and its appurtenant property and franchises, were sold in May, 1863, to Washington Hunt and Russell Sage, by whom they were duly transferred to the Milwaukee & St. Paul Railway Company. 16. Ch. 176, Laws of 1851 (approved March 11 of that year), provided for the incorporation of the Milwaukee *443 & Watertown Railroad Company, with power to build and operate a railroad from some point on the line of the Milwaukee & Mississippi Railroad in Waukesha county to Watertown, and “to demand and receive such sum or sums of money for passage and freight of persons and property, as they shall from time to time think reasonable.” By act of February 13, 1852, this company was authorized to extend its road from Watertown, by way of Columbus and Portage City, to La Crosse. It appears that the company was duly organized, and built its road to Columbus; that afterwards it was consolidated with the La Crosse & Milwaukee Railroad Company; that in 1857 its said road was transferred to the Madison, Fond du Lac & Lake Michigan Railroad Company, afterwards known as the Milwaukee & Western Railroad Company; and that in June, 1863, said road was conveyed by the last named company to the Milwaukee & St. Paul Railway Company. 17. Ch. 419, Laws of 1865 (approved April 10), ratifies the organization of the Milwaukee & St. Paul Railway Company as provided by the articles of association filed May 5, 1863.

(supra, 14), and declares the company to be “a corporation with all the rights, powers, privileges and franchises which were of the Milwaukee & Western Railroad Company, Milwaukee & Horicon Railroad Company, and of all that part of the La Crosse & Milwaukee Railroad Company pertaining to its road lying west of Portage City.” 18. It also appears that a judgment in favor of one Cleveland, held by one James, against the La Crosse & Milwaukee Railroad Company, was in January, 1867, at the suit of James by creditor's bill, decreed to be a lien on the road of said company between Milwaukee and Portage City; and that such road was sold by order of the court, March 5, 1867, and purchased by the Milwaukee & St. Paul Company. 19. It further appears that, pursuant to authority granted by the general railroad law of 1872 (sec. 50, ch. 119 of the laws of that year), the name of the last mentioned company was changed to the Chicago, Milwaukee & St. Paul Railway Company, by resolution *444 of the company passed February 7, 1874, and recorded in the office of the secretary of state on the 11th of the same month, and duly published in the official state paper. On the 1st of January, 1874, and from that time until the filing of these informations, said company owned and operated between six and seven hundred miles of railway in this state.”

**3 III. Ch. 273, Laws of 1874, approved March 11th of that year, divides all railroads in this state into three classes designated respectively as A, B and C, and declares that class A shall include all railroads or parts of railroads in this state now owned, operated, managed or leased either by the Milwaukee & St. Paul Railway Company, the Chicago & Northwestern Railway Company, or the Western Union Railway Company. Sec. 2 prescribes for each of said classes the maximum compensation per mile which may be charged for the transportation of any person with ordinary baggage not exceeding one hundred pounds in weight; and such maximum for class A is fixed at three cents for persons over twelve years of age, and half that sum for persons under that age. Sec. 3 declares that “all freights hereafter transported upon any railroad or part of a railroad in this state are hereby divided into four general classes, to be designated as first, second, third and fourth classes, and into seven special classes, to be designated as class D, E, F, G, H, I and J.” The kinds of freight included in each of the seven special classes are then described; and it is then declared that “all articles not above enumerated or subsequently set into said classes as hereinafter provided, shall be placed in and belong to the four general classes, to be classified by the railroad commissioners hereinafter provided to be appointed, as said articles were classified by the Milwaukee & St. Paul Railway, which classification went into effect on the 15th day of June, 1872.” Sec. 4 prescribes the maximum rates chargeable by the railroads included in classes A and B for carrying the several articles named in the several special classes of freight previously described. The rates so prescribed *445 for articles in class D are as follows: “not exceeding six cents per hundred pounds for the first twenty-five miles, and not exceeding four cents per hundred pounds for the second twenty-five miles, and not exceeding two cents per hundred pounds for each additional twenty-five miles or fractional part thereof, unless the fraction shall be less than thirteen miles, in which case the rate shall be one cent for said fractional part, unless the whole distance be over two hundred miles, when no greater rate than one-half cent per hundred pounds shall be received for such [[[[each?] twenty-five miles over said first mentioned distance.” The maximum rates prescribed for each of the other special classes of freight are graded in a similar manner with reference to the distance of the carriage. Sec. 5, among other things, forbids any railroad in class A or B from receiving a higher rate for carrying any freight included in the four general classes than was charged for carrying such freight on the same road on the first day of June, 1873. Sec. 6 provides that any individual or corporation violating or in any way evading the provisions of the act shall forfeit all right to recover or receive any compensation whatever for the service rendered wherein such violation is attempted; and that every agent of the corporation or person operating such railroad, who shall refuse to receive for transportation over the road for which he is agent, in the usual way, any of the articles before mentioned, on account of the compensation prescribed in the act being too low, or who, receiving any such articles of freight, shall charge or attempt to charge for the transportation of the same any greater sum than is fixed in the act, or shall in any manner violate or attempt to violate or evade the provisions of the act, shall be deemed guilty of a misdemeanor, and on conviction thereof shall pay a fine not exceeding two hundred dollars for each offense; and that the injured party shall have a right of action against said agent or against the company or person operating the road, or both, for three times the amount taken or received from him *446 in excess of the rates prescribed by the act. The act further provides for the appointment of three railroad commissioners, with power, among other things, to “classify all articles of freight,” except those placed by the act in the special classes D, E, G and H, and “to reduce said rates on any of said railroads or parts of railroads, either in general or special classes, when in their judgment, or [[[[that of] a majority of them, it can be done without injury to such railroad.” There are numerous other provisions in the act, relating to the powers and duties of the commissioners, etc.; but these are not important here. Sec. 18 declares that “nothing contained in the act shall be taken as in any manner abridging or controlling the rates for freight charged by any railroad company in this state for carrying freight which comes from beyond the boundaries of the state, and to be carried across or through the state.” Sec. 19 declares that the act shall take effect from and after its passage and publication. In accordance with a joint resolution of the two houses, approved March 12, 1874, the publication of this act was delayed until April 28 of that year.

**4 IV. 1. Ch. 296, Laws of 1874, was approved March 12, and published March 26, of that year. Sec. 2 of the act amends sec. 55, ch. 119, Laws of 1872 (the general railroad law), so as to read as follows: “All existing railroad corporations within this state shall respectively have and possess all the powers and privileges contained in this act and in their respective charters, and they shall be subject to all the duties and liabilities prescribed by this act.” 2. Ch. 341, Laws of 1874, was also approved March 12, and was published March 25, of that year. Sec. 9 of this act provides that “if any railroad company organized or doing business within this state, or which may hereafter do business within this state, shall charge, collect, demand or recover more than a fair and reasonable rate of compensation upon any line or road within this state, which it has the right, license or permission to use, operate or control, the same shall be deemed guilty of extortion, and upon conviction thereof shall *447 be fined in any sum not less than five hundred dollars, nor more than two thousand dollars for each offense, with costs of suit, and reasonable attorney's fees, to be fixed by the court.”Sec. 10 declares that all acts or parts of acts contravening or conflicting with the provisions of that act are thereby repealed.

V. 1. Section 5 of article I of the constitution of this state provides that “the right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy.” 2. Section 2 of article VII provides that “the judicial power of this state, both as to matters of law and equity, shall be vested in a supreme court, circuit courts, courts of probate, and justices of the peace,” etc. Section 3 of the same article reads as follows: “The supreme court, except in cases otherwise provided in this constitution, shall have appellate jurisdiction only, which shall be co-extensive with the state; but in no case removed to the supreme court shall a trial by jury be allowed. The supreme court shall have a general superintending control over all inferior courts; it shall have power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari and other original and remedial writs, and to hear and determine the same.” 3. Section 8 of the same article reads as follows: “The circuit courts shall have original jurisdiction of all matters, civil and criminal, within this state, not excepted in this constitution, and not hereafter prohibited by law, and appellate jurisdiction from all inferior courts and tribunals, and a supervisory control over the same. They shall also have the power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and all other writs necessary to carry into effect their orders, judgments and decrees, and give them a general control over inferior courts and jurisdictions.” 4. Chapter 148, R. S., is entitled “Of proceedings by and against corporations,” and contains the following provisions: “Section 13. Upon a complaint being filed under the direction of the attorney general, in any circuit court, such court shall have power to restrain, by injunction, any corporation *448 from assuming or exercising any franchise, liberty or privilege, or transacting any business, not authorized by the charter of such corporation; and in the same manner to restrain any individuals from exercising any corporate rights, privileges or franchises not granted to them by any law of this state. Section 14. Such injunction may be issued before the answer, upon satisfactory proof that the defendants complained of have usurped, exercised or claimed any franchise, privilege, liberty or corporate right not granted to them; and after the answer, such injunction may be continued until such judgment shall be rendered.”

**5 VI. 1. Section 13 of article I of the constitution of this state declares that “the property of no person shall be taken for public use without just compensation therefor.” 2. Section 1 of article XI provides as follows: “Corporations without banking powers or privileges may be formed under general laws, but shall not be created by special act, except for municipal purposes, and in cases where, in the judgment of the legislature, the objects of the corporation cannot be attained under general laws. All general laws or special acts enacted under the provisions of this section may be altered or repealed by the legislature at any time after their passage.” 3. Sections 31 and 32 of article IV were adopted as amendments to the constitution in 1871. By the former section “the legislature is prohibited from enacting any special or private laws” in nine cases there specified, the seventh of which is “For granting corporate powers or privileges, except to cities.” Section 32 reads as follows: “The legislature shall provide general laws for the transaction of any business that may be prohibited by section thirty-one of this article, and all such laws shall be uniform in their operation throughout the state.”

VII. The information in this case against the Chicago & Northwestern Railway Company, after reciting the acts under which the company was organized, and the material provisions of ch. 273, Laws of 1874, etc., charges that said company, immediately *449 after said last mentioned act took effect, to wit, on the 29th of April, 1874, filed in the office of the governor of this state a communication in writing signed by Albert Keep, president of said company, in which, among other things, it announced its intention to disregard the requirements of said act, so far as the same fixes the rates of compensation for the transportation of freights and passengers within said state, and to operate its railroad to and from and between its various stations within this state regardless of the requirements of said act. It further charges that said defendant, “combining and confederating with divers persons at present to the attorney general unknown, * * * and contriving how to wrong and injure the plaintiff and all the people of the state of Wisconsin in the premises,” has hitherto absolutely refused, and still does refuse, to comply with the requirements of the aforesaid act, “and has adopted and issued a tariff of rates for freights between local stations within the said state, and a tariff of rates for freights and passengers transported over its roads within said state, and a classification of freights, each and all of which are in disregard of the classification and rates fixed by the said last mentioned act, and contrary to the requirements thereof;” that said defendant has also issued to its officers, agents and servants (all of whom the plaintiff prays may, when their names shall be discovered, be made parties defendant to this action, etc.), instructions to demand and receive of all persons passing over their roads or shipping freights thereon, the rates therefor specified in said tariff and schedules, * * * which are higher than those authorized by said act, and in excess of the power conferred upon defendant by law; that said defendant, its agents, etc., have, during all the time since said 28th of April, 1874, demanded and received, and now demand and receive, from persons carried on their railroad, and from persons shipping goods, etc., thereon, between places within this state, rates and compensation therefor higher than those authorized by said act, and higher than said defendant is *450 authorized by law to demand or receive. It is then further charged that said alleged rates are charged and received by the defendant as aforesaid, for carrying freight and passengers which do not come from beyond the boundaries of the state of Wisconsin to be carried across or through the same, and which do not come from places without the state of Wisconsin, to be carried to or delivered at places or stations within this state, and which are not received for carriage or transportation from stations or places within to places or stations without said state. Prayer, for the writ of injunction directed to said defendant, to restrain it, its officers, etc., from exceeding its powers and from violating the law in the manner above stated; and for judgment that said injunction be made perpetual.

**6 VIII. The answer of the Chicago & Northwestern Railway Company^a1 contains a plea to the jurisdiction of the court, and also a general denial except as to allegations specially admitted. After admitting the corporate character and name of said defendant under the laws of this state, the answer then sets up the following defenses: 1. That ch. 273, Laws of 1874, has, since March 11, 1874, been wholly repealed. 2. That said act never was a valid law, because in violation of sec. 13, art. I of the constitution of this state (supra, VI, 1), because “if this defendant is required to operate its railroads in said state in compliance with the terms of said act, it will be deprived of all beneficial use of said railroads without any compensation; and also for the reason that said act is in contravention of sec. 1 of the XIVth amendment to the constitution of the United States, which declares that No state shall make or enforce any law *451 which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” 3. That said act was also in violation of sections 31 and 32, art. IV of the constitution of this state, adopted in 1871 (VI, 3). 4. That said defendant's right to regulate the rates to be charged by it for the transportation of passengers and property over its said railroads was recognized by the several acts of the legislature of this state incorporating said company, and the acts amendatory thereof and supplementary thereto, and laws passed subsequent to the formation of said company; that defendant, in good faith, after making a thorough examination of all the facts bearing upon the question as to what said rates ought to be, established certain rates of fare and freight, with the purpose of establishing just and reasonable rates, and that the same are in fact just and reasonable, and are so low that in operating its railways under them it has not derived and does not derive from all its sources of revenue in this state a sum sufficient to pay the necessary cost of operating and maintaining its railways therein, and to pay the interest upon the bonds given by it for money borrowed by it under authority granted by the laws of this state, which money was actually invested in the construction and equipment of its roads in this state, and to pay the legal rate of interest in this state upon the moneys actually invested by its stockholders in the construction and equipment of said roads; and that the compensation for the transportation of passengers and freight, named in said act, would not yield sufficient revenue to pay the interest accruing upon the defendant's bonds above mentioned, and to maintain its roads in this state, with their equipments and appurtenances, in a proper state of efficiency and repair. 5. That defendant is indebted to the holders of its bonds above mentioned for moneys borrowed by it and expended by it in the construction and equipment of its said roads in this state, in the sum of $17,247,770, *452 and that said roads, if operated at the rates specified in the act aforesaid, would be of no value to defendant, and the enforcement of said act would impair the obligation of the contracts entered into between defendant and its bondholders, for that such enforcement would oblige defendant to employ its property, mortgaged to secure said bondholders, in such manner as to deprive said creditors of such security as lawfully belongs to them under such contract and by virtue of the laws of Wisconsin. 6. That the enforcement of said act would deprive defendant of its property in its railroads in this state, and in their equipment, by rendering the same of no value to defendant, and would therefore be a violation of the contract entered into between the state and said defendant. 7. That the Galena & Chicago Union Railroad Company was a corporation of the state of Illinois, incorporated under a certain act of the legislature of that state, of 1836, and was authorized by said act to prescribe the manner in which the railroad specified in the act should be used, and the rates of toll for the transportation of persons and property thereon, and also to borrow any sums of money which it might deem necessary, not exceeding its capital stock, to aid in the construction of its roads; that on the 2d of June, 1864, the Chicago & Northwestern Railway Company and said Galena & Chicago Union Railroad Company consolidated their property and franchises into one corporation by the name of the Chicago & Northwestern Railway Company, which consolidation was made pursuant to the laws of Wisconsin and Illinois; that this consolidation was approved and ratified by an act of the legislature of Illinois, approved February 5th, 1865, by which act it was provided that said company, as then consolidated, should have all the powers theretofore conferred by the laws of that state upon either of said two companies, or any other company consolidated therewith; that by virtue of this consolidation the defendant became vested with all the rights, powers, privileges and franchises which had been theretofore conferred by the laws of Illinois upon the two companies *453 above named, or by the laws of Wisconsin upon the Wisconsin & Superior Railroad Company, or upon the Chicago, St. Paul & Fond du Lac Railroad Company, or upon the Chicago & Northwestern Railway Company, among which powers was that to demand and receive such sums of money for the transportation of persons and property, as the said railroad from time to time should deem reasonable; and that the enforcement of the act of 1874, aforesaid, would impair the obligation of the contract between the stockholders of said Galena & Chicago Union Railroad Company and those of the Chicago & Northwestern Railway Company, contained in the consolidation of said companies above set forth, and thereby greatly impair the security of the bondholders. 8. That by an act of the legislature of Wisconsin passed March 12, 1874 (IV, 2), defendant was authorized to charge and receive fair and reasonable rates of compensation for the transportation of persons and property over its roads in this state; and that the rates now charged by defendant are fair and reasonable. 9. That a proper construction of said ch. 273, of 1874, is, that the rates of freight therein prescribed are to be applied to all merchandise shipped from any point without said state to any point within it, or from any point within to any without said state, which is a regulation of inter-state commerce that the legislature of Wisconsin has no power to make, under the constitution of the United States. 10. That at the time of the commencement of this action there was, and ever since has been, and still is, another action pending in this court, brought by the attorney general in the name of the state, in which the plaintiff sets forth as the cause of action the same facts which are set forth in the complaint in this action, and prays the judgment of the court to annul the charter of this defendant because of said alleged violation by defendant of the provisions of said act of March 11, 1874, and for no other cause; and that the injunction prayed herein would, if granted, inevitably render the defendant bankrupt, and destroy its existence as a corporation, and this action *454 is in effect for the same purpose as the former suit, and is designed to accomplish the same purpose, namely, the annihilation of this defendant, and therefore this action is barred; that on such question, involving the existence of the defendant, it has the right to a trial by jury, by the constitution of this state, and if the statute under which this suit is brought is upheld and enforced in this case, defendant will be deprived of a trial by jury; wherefore said act is unconstitutional and void, and on the facts alleged in the complaint this court has no jurisdiction to grant any relief demanded herein. 11. The answer then sets forth at length, substantially as it is above set forth (I), the history of the acts of the legislature of this state, and those of the legislature of Illinois, under which were organized the several railroad companies to whose property and franchises the defendant has succeeded; and it avers that when the property and franchises of the Chicago, St. Paul and Fond du Lac Railroad Company were sold, on the 2d of June, 1859, to Samuel J. Tilden and O. D. Ashley as above stated (I, 7), there were not separate sales of the portions lying in Illinois and Wisconsin severally, but the entire road, from Chicago, in Illinois, to Fond du Lac, in Wisconsin, was sold as a consolidated road, and deeded to the purchasers as one entire road; and it alleges that by virtue of said acts of the legislature of Wisconsin and Illinois, and by virtue of said sale and deeds, said Tilden and Ashley became seized of all the property of said railroad company, and of the right to operate the road and charge reasonable compensation for the transportation of passengers and freight thereon, as natural persons and not as a corporation, and that they did not lose the right so acquired by subsequently filing their certificate of incorporation.

**7 IX. The information against the Chicago, Milwaukee & St. Paul Railway Company alleges the organization of the company, as a corporation under the laws of this state, by the name of the Milwaukee & St. Paul Railway Company, by the filing of articles of association in the office of the secretary of *455 state, upon the 5th of May, 1863, as above stated (II, 14); the amendment of said articles of association as above mentioned by the act of April 2, 1864; the passage of the act of April 10, 1865, ratifying and confirming said articles of association, etc. (II, 17); and the subsequent change of the name of said company (II, 19). It then recites the passage and publication of ch. 273, Laws of 1874, and avers that said defendant is mentioned and described in said act as the Milwaukee & St. Paul Railway Company, “by which name it was then and theretofore, and still is, commonly known and called, and that there is no corporation in this state by the name of the Milwaukee & St. Paul Railway Company, and has not been since the change of the name above stated, except as the name is applied to the defendant, and whenever the Milwaukee & St. Paul Railway Company is mentioned in said act, the defendant is the company meant, and intended to be spoken of and referred to.” Said company is then charged with designed, systematic and continuous violation of the provisions of the act of 1874 prescribing maximum tolls chargeable on its roads, the charges being made in terms precisely similar to those used in the other information, above described; and the same relief is demanded against it.

X. The answer of the Chicago, Milwaukee & St. Paul Railway Company admits its existence as a corporation under the laws of this state; its original incorporation under the name of the Milwaukee & St. Paul Railway Company, by filing the articles of association of May 5, 1863; the amendment of these articles by the act of April 2, 1864; their ratification and confirmation by the act of April 10, 1865, and the subsequent change of its name to that under which it is made defendant. It then denies generally the other averments of the information. (2) For a second defense, after reciting the facts stated above as to the La Crosse & Milwaukee Railroad Company, the sale of its road and franchises upon foreclosure of the trust deed, and the filing of articles of association by the purchasers, etc. (II, 14), the answer insists that the right to *456 operate said railroad, and the right of the owner to regulate the charges for transportation of freight and passengers over it, “inhered in and became a part of said railroad property, and a right belonging to the owner thereof, separate and distinct from the existence of said La Crosse & Milwaukee Railroad Company,” and was capable of transfer from said company to any purchaser thereof, and “became a vested right in the owner of said railroad, unalterable and irrepealable and unaffected by section one of article eleven of the constitution of Wisconsin;” that “said purchase of Pratt and White at said foreclosure sale was a purchase of said property with the right to use, manage and operate the same as their individual property, and to make money thereby, free and discharged from all right, claim, control, interest or liability of said La Crosse & Milwaukee Railroad Company; that the transfer thereof by said Pratt and White to the defendant, vested the same in defendant in like manner; and that defendant now holds the same as property, with the right inherent therein to be used, managed and operated as a railroad for the transportation of freight and passengers, independent of any corporate right granted to this defendant; that such right to use the property cannot be affected by any alteration of the charter of the La Crosse & Milwaukee Railroad Company, or of the defendant, but inheres in the property and enures to the benefit of the owner, whoever he may be, wholly independent of the existence of either of said corporations, and unaffected by sec. 1, art. XI of the state constitution.” The defendant “therefore expressly denies” that it has charged or received higher rates of fare and freight over its road within this state, “than are fixed and allowed by law;” and denies that ch. 273, Laws of 1874, is constitutional or binding upon defendant in respect to that portion of its road lying between Portage City and La Crosse. 3. The answer then sets up the acts of the territorial legislature of 1847 and 1848, relative to the Milwaukee & Waukesha Railroad Company (II, 1, 2); the change of its *457 name to the Milwaukee & Mississippi Railroad Company by the act of February 1, 1850 (II, 4); the building of its road from Milwaukee to Prairie du Chien, between the years 1850 and 1856; the sale of said road and its franchises in January, 1861, upon foreclosure of the trust deeds given to Isaac Seymour, and the organization, by the purchasers, of the Milwaukee & Prairie du Chien Railroad Company (II, 12); and the conveyance by said company, of its railway franchises, etc., to the defendant, August 1, 1868 (II, 13). It then insists that defendant has succeeded to all the rights, franchises and property which belonged to the corporation so chartered by the terri torial legislature; that such rights and franchises are unalterable by the legislature of the state of Wisconsin; and that ch. 273, Laws of 1874, so far as it attempts to affect the road constructed under said territorial charter, is invalid. 4. The answer then sets up the sale to defendant of that portion of the La Crosse & Milwaukee Railroad between Milwaukee and Portage City, March 5, 1867, under a decree of the court to satisfy a judgment lien (II, 18), and avers that by virtue of such sale defendant became the owner of said road, “and entitled to have, own, manage, control and operate the same as its sole and individual property.” It then set out the facts as to the acquisition by defendant of the road of the Milwaukee & Horicon Railroad Company (II, 15), and that of the Milwaukee & Western Railroad Company (II, 16). 5. As a fifth defense the answer then avers, as to the roads constructed by the La Crosse & Milwaukee, the Milwaukee & Horicon, the Milwaukee & Western, and the Milwaukee & Waukesha Companies, under their respective charters, and purchased by defendant as above mentioned, that defendant is now the owner thereof, and has succeeded to the rights of said companies in said roads; and it then claims, in the same language as that used in the second defense, the right to use and operate said roads, and regulate the charges for carrying freight and passengers thereon, as a right inherent in the property, and enuring to the benefit *458 of any owner thereof, disconnected from the corporate existence of said several companies or of the defendant, and unaffected by any alteration in the charters of those companies or that of the defendant; and therefore denies that it has charged or received for such carriage any higher rates than are allowed by law, and denies that said ch. 273 is valid and binding on defendant. 6. For a sixth defense the answer avers that none of the charters under which defendant's roads in this state were constructed, fixed rates for the transportation of freight or passengers, but each of them authorized the company created by it to fix such rates at its discretion; that all such roads were built and put in operation on the faith and credit of such charters; and that thereby the right to fix such rates became vested in said companies and their successors. 7. For a seventh defense the answer avers that said ch. 273, Laws of 1874, was repealed by chapters 296 and 341 of the laws of the same year (IV, 1, 2). 8. For an eighth defense the answer avers that said ch. 341, Laws of 1874, authorizes railroad companies to charge a reasonable compensation for the transportation of freight and passengers; and that the amounts charged by defendant for such transportation during the year 1874 have not in any instance exceeded such reasonable compensation. 9. For a ninth defense the answer alleges that defendant is entitled, under the laws of this state, to charge a reasonable compensation for the transportation of freight and passengers over its road, reference being had to the services rendered, the risks incurred, and the cost and value of the property of the railroad; that the cost of defendant's road in this state amounts to $27,499,264, and it is of that value; that the compensation charged for such transportation since the 28th of April, 1874 (the day when ch. 273 was published), to the time of filing such answer, after paying the operating expenses of the road, does not amount to five per cent. per annum of the cost or value of said road and its appurtenances; and defendant denies that since said 28th of April it has charged *459 or received more than a reasonable price for such transportation. It further alleges that the rates named in ch. 273, Laws of 1874, are not reasonable and fair, but are unreasonably low and inadequate; and that if said railroad should be operated in accordance therewith, it would not, after paying operating expenses, pay three per cent. per annum on the cost or value of said road. 10. For a tenth defense the answer alleges that by the terms of said ch. 273 defendant is classified in class C of railroads; and it denies that defendant has charged a higher rate of compensation than is so allowed by said act. 11. For a further defense it is alleged that said ch. 273 was never a valid law, for the reason that it was in violation of sec. 13, art. I of the constitution of this state (VI, 1), and because, if defendant were required to operate its railroad in compliance with the terms of the act, it would be deprived of all beneficial use of its railroad without any compensation. 12. It is further averred that said ch. 273 is a special act, and provides different rates of compensation for each of the railroad companies named therein, and is not uniform in its operation throughout the state, and is therefore in violation of the amendment of article IV of the constitution of this state, adopted in 1871, and especially of section 31 of said article (VI, 3). 13. It is further averred that said ch. 273 is in violation of the contract between this state and the defendant, and is therefore void under subd. 1, sec. 10, art. I of the constitution of the United States. 14. It is further averred that the enforcement of said act will deprive defendant of its property without due process of law, and refuse to defendant the equal protection of the laws, in violation of sec. 1, art. XIV of the amendments to the constitution of the United States. 15. And for a fifteenth defense the answer sets up the pendency of the information in the nature of a quo warranto, filed by the attorney general, in this court, against said defendant.”

**8 None of the pleadings above described were verified.

XI. The attorney general moved, upon the informations, *460 for temporary injunctions in both cases. During the argument of these motions the following affidavits were read in behalf of the state: 1. The affidavit of J. H. Osborn states that he is one of the railroad commissioners of this state, and since the 28th of April, 1874, has had frequent occasion in his official capacity to inquire into the manner of operating the railways of the two defendant companies; that he finds, and has personal knowledge, that said companies are now and have been continuously since said 28th of April, demanding and receiving for the transportation of passengers and freights over their respective railroads in this state greater and higher rates of compensation than those prescribed by ch. 273, Laws of 1874. It further states that on the 11th day of March, 1874, and for a long time theretofore and since, the Chicago, Milwaukee & St. Paul Railway Company was commonly known as and called the Milwaukee & St. Paul Railway Company. 2. The affidavit of George W. Bird states that he resides at Jefferson, Jefferson county, in this state; that since the 28th of April, 1874, he has had frequent occasion to ride as a passenger on the trains of the two defendant companies in this state; that said companies have each continuously since said 28th of April, and as often as he has had occasion to ride over their respective roads, demanded and received from affiant for carrying him as a passenger on their respective roads, higher rates of compensation than those prescribed by ch. 273, Laws of 1874; and that affiant has frequently been informed by agents of each of said companies, that said companies were charging and receiving for transportation of passengers and freights over their respective roads higher rates of compensation than those prescribed by said ch. 273, and that both of said companies were disregarding said chapter so far as it fixes a tariff of rates for said companies.

The following affidavits were read in behalf of the Chicago & Northwestern Railway Company: 1. An affidavit of Albert Keep, president of said company, states that on or about the *461 27th of April, 1874, he, as such president, wrote and addressed to the governor of this state a certain letter in relation to the provisions of the two acts of the legislature of this state approved on the 11th and 12th of March, 1874, a copy of which letter is attached to the affidavit; and that affiant has not written or addressed, or caused to be written or addressed, any other communication to said governor in relation to said acts. The letter referred to states that the directors of said company, having carefully considered the two acts aforesaid, “desire to state the reasons why the roads they represent cannot be operated under the schedule named in the said acts;” and it then sets out those reasons at some length. 2. The affidavit of M. M. Kirkman states that he is the general accountant of said company, and keeps the books thereof showing its receipts and expenses; that, as shown by said books and according to the best knowledge and belief of the affiant, the gross earnings of said company upon its railways in this state during the month ending June 30, 1874, were $383,249.68, and the operating expenses of the same during the same period were $302,050.67, so far as the same can now be determined from the books of the company. 3. A second affidavit of Albert Keep, president of said company, states that he has examined the foregoing affidavit of Mr. Kirkman, and that the same is true according to the best information, knowledge and belief of this affiant; that the consolidated gold bonds of said company applicable to its railways in this state have, since the passage of ch. 273, Laws of 1874, depreciated from 87 1/4 on the 11th of March, 1874, to 78 1/2 on the 30th of July, 1874; that the preferred stock of said company has depreciated during the same time from 72 to 57, and the common stock from 53 to 39, which would be a depreciation of the stock of the company to the amount of $5,319,521; that affiant believes he is well acquainted with the means of doing business and the probable amount of receipts and expenses of said company, and has no doubt its receipts from said railways, operated in accordance *462 with said act, would be reduced in the neighborhood of twenty-five per cent.; and that the railways of said company could not be operated in this state in accordance with said act and earn sufficient to pay the necessary operating expenses of said company and the interest on its bonds.

**9 In behalf of the Chicago, Milwaukee & St. Paul Railway Company the following affidavits were read: 1. The affidavit of John W. Cary states that he is the general solicitor of said company, and has been connected with the company since its organization; that he was engaged in foreclosing all of the mortgages mentioned in the answer of said defendant in this case, except that of the Milwaukee & Horicon Railroad, and is conversant with all the facts stated in said answer in respect to those mortgages, the foreclosure thereof, and the title of said defendant to the property now owned and operated by it; that the matters stated in said answer in respect to said several mortgages, the foreclosure thereof, and said defendant's title to the several roads named in the answer, are substantially true as therein stated; and that the provisions of the several charters as set forth in said answer are substantially correct. 2. The affidavit of Sherburne S. Merrill, general manager of said company, states that he has held that office for nine years last past; that he has been engaged in the operation of railroads for over twenty years, and is well acquainted with the business of railroad transportation in the northwest, and conversant with the affairs of said company; that said company now owns and operates in this state about 665 miles of road, and also owns and operates in connection therewith, as a part of its entire system of roads, about 734 miles situate in the states of Illinois, Iowa and Minnesota, making together 1399 miles of railroad operated by said company, as one system of roads; that the entire cost of said lines of roads is $52,454,604, and in the opinion and judgment of the affiant they could not be built and equipped as they now are, for any less sum; that the portion of said roads situate in this state cost $26,785,899.16. *463 and in affiant's opinion could not now be built and equipped as it is for any less sum; that said road has been operated thus far during the year 1874, substantially upon the same rates that were charged in 1873; that the gross earnings of said road in 1873 were $9,046,123.57, and the entire net earnings resulting from the operation of the road during that year, after paying operating expenses and the repairs and renewals of the road and track, amounted to the sum of $2,451,563.24; that said net earnings for 1873 amounted to four and sixty-seven hundredths (4.67) per cent. of the actual cost of the entire road; that the amount of annual interest paid on the bonded debt of the company in 1873 amounted to $1,797,554.87, which amount deducted from the net earnings left only $654,008.37 applicable for the purposes of dividends to the stockholders, which was only two and thirty-six one hundredths (2.36) per cent. upon the common and preferred stock; that in affiant's opinion the earnings of said road in 1873 could not have been increased by a reduction of the rates then charged, and any reduction in the present rates would not result in any material increase of business over the road at the present time, but would inevitably decrease the earnings of the company; that the rates charged for the transportation of freight and passengers are reasonable, and as low as the rates on any railroads in the United States, of the same class and similarly situated; that in affiant's opinion the present rates charged by the company, with the most careful and economical management of the property, will not yield the company, the present year, over and above operating expenses and the necessary renewals of track and road, more than five per cent. on the entire cost of the whole road; that the average rate charged for the transportation of passengers in 1873 was three and fifty-eight hundredths (3.58) cents per mile, and the average rate charged for freight, of the entire business of the road, was only two and one half (2.50) cents per ton per mile; that the charge per ton per mile of said company in 1868 was three and forty-nine *464 hundredths (3.49) cents; that the rate has been gradually reduced by the company of its own accord from 1868 to 1873, as above indicated; that the average passenger rates per mile have during the same period been reduced from three and eighty-four hundredths (3.84) cents to three and fifty-eight hundredths (3.58) cents; that this reduction has been made by the company, not because they were receiving more than a reasonable compensation, but in order to accommodate the business of the country, and with a view to develop its resources, and ultimately increase the business of the road; that in affiant's opinion the present rates of the company cannot be further reduced at this time without great injury to the company and the owners of its stock and bonds; that affiant has examined the rates prescribed by ch. 273, Laws of 1874; that the freight rates therein prescribed are ill-digested and inconvenient of application, and if adopted by the company would prove greatly injurious to its best interests, and to many of its patrons; that their adoption by the company would greatly reduce its revenue, and especially decrease its net income, and would cause serious injury and damage to the company, injure its credit, and in a great measure destroy the market value of its securities; and that in affiant's opinion the present rates are just and reasonable, and those prescribed by said ch. 273 are unreasonably low and unjust to the company. 3. The affidavits of John C. Gault, assistant general manager, and Orrin E. Britt, general freight agent, of said company, are confirmatory of the statements made in Mr. Merrill's affidavit.

**10 By direction of the court the two motions for temporary injunctions were heard together, the argument being commenced on the 4th of August, and terminated on the 11th of that month. The state was represented in the argument by I. C. Sloan, Assistant Attorney General, H. S. Orton and L. S. Dixon;^a1 the Chicago & Northwestern Railway Company by C. *465 B. Lawrence, B. C. Cook, and Smith & Lamb; and the Chicago, Milwaukee & St. Paul Railway Company by John W. Cary and P. L. Spooner.

A. The jurisdiction of the court.

1. The supreme court has original jurisdiction of a bill in equity for an injunction, in all cases where that is the proper remedy. The constitution vests in this court jurisdiction in equity. Sec. 2, art. VII. It also specifically vests in this court power to issue the writ of injunction in a proper cause in equity. Sec. 3, art. VII. The language “to hear and determine” confers the fullest jurisdiction possible in a cause in which the writ of injunction is sought as the only remedy, and presupposes the filing of an original bill in equity for that purpose. This jurisdiction to entertain a bill for an injunction in a proper case is original, and not ancillary to appeals. (1) The language used in sec. 8, art. VII of the constitution, in conferring jurisdiction on the circuit courts, is as follows: “They shall also have the power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and all other writs necessary to carry into effect their orders, judgments, and decrees, and give them a general control over inferior courts and jurisdictions.” These qualifying clauses are not found in sec. 6 where the supreme court is given jurisdiction over the same writs. Who can doubt that, notwithstanding this qualification, the circuit courts have jurisdiction to issue writs of habeas corpus, quo warranto and mandamus in all original cases which have nothing to do with “a general control over inferior courts and jurisdictions?” The words “they shall also have power,” indicate that this clause was intended to confer jurisdiction upon the circuit courts over these great common law writs, in addition to“original jurisdiction in all matters civil and criminal,” and “appellate jurisdiction *466 over all inferior courts and tribunals, and a supervisory control over the same,” conferred by the first part of sec. 8. It is submitted that the power to issue these writs, including that of injunction, is concurrent in the supreme and circuit courts. (2) This court has decided that it has original jurisdiction in habeas corpus, mandamus and quo warranto, in all proper cases, when such jurisdiction is not ancillary to appeals and writs of error; and the practice in such cases is settled. But the language of jurisdiction in respect to injunction is just as broad and unqualified as it is in respect to the three other writs just named. (3) The new constitution of Michigan (adopted in 1850), in respect to the jurisdiction of the supreme and circuit courts, is almost literally copied from ours, except that the writ of injunction is not mentioned in the section relating to the jurisdiction of the supreme court. It has been frequently decided in that state that the supreme court has original jurisdiction to issue the writs named in that section, in cases not ancillary to appeals. People v. Adams, 3 Mich., 428; People v. Sackett, 14 Id., 244. Under a similar constitutional provision, the supreme court of Ohio has decided that it has original jurisdiction of the writs named (1 Ohio St., 433), and not over the writ of injunction, which is not named. 8 Ohio St., 393. (4) Of all the state constitutions found in the state library, none give original jurisdiction over the writ of injunction to the supreme court, except our own and those of Alabama and Florida. The constitutions of the two states last named declare that the supreme court shall have original jurisdiction “in habeas corpus, mandamus, quo warranto and injunction, and such other remedial and original writs as may be necessary to give it a general supervision and control of all other courts.” The qualification thus added has been held in those states to restrict the jurisdiction of the court to cases ancillary to appeals, etc. 13 Fla., 33, 39; 44 Ala., 157. The language of our own constitution is unqualified in respect to all of these writs, including injunction. (5) If the language here relied *467 upon does not confer jurisdiction upon this court except in cases ancillary to appeals, and over inferior courts, then it is utterly meaningless. For the preceding clauses, which declare that the court shall have appellate jurisdiction, which shall be coextensive with the state, and that it “shall have a general superintending control over all inferior courts,” are amply sufficient to give all the necessary jurisdiction in such cases. (6) The argument that if this court should entertain an original injunction bill and grant the writ, it would greatly increase the business of the court, is as valid against the power to issue habeas corpus, quo warranto or mandamus, and cannot be entertained.”

**11 2. This is a proper case for an injunction. (1) By the usual and common jurisdiction of a court of chancery, both in England and in this country, this bill would be entertained and the relief granted. From the nature of railway corporations, whose existence and operations depend upon a sovereign grant of franchises and powers, and on the sole ground of the public use and interest in the commercial highways created by them, the government has a paramount right over them, to secure such public use and the proper administration of such franchises and powers. Where such a corporation violates the public law of its being, abuses its franchises, or usurps powers not granted, the government should not await the tardy, expensive and inadequate litigation of private parties seeking redress in a multiplicity of actions, but should itself take immediate steps to control and correct such conduct. And where one of these corporations boldly proclaims its purpose to usurp a franchise not conferred, or taken away, which usurpation will result in a great public injury, and to violate a law of the state made expressly to regulate and restrain, for the public good, the exercise of its corporate functions, it would seem to be the highest duty of the state, either to dissolve the corporation, by legislative or judicial action, and reclaim its forfeited franchises (an extreme and destructive remedy, though one of *468 unquestioned right), or to correct the wrong and save the rights both of the public and of the corporation by the remedial and harmless agency of a bill in equity for an injunction. And the jurisdiction of equity for this purpose is sustained by authority. “Parties injured by the conduct of a railway company exceeding the powers conferred upon it by act of parliament, are entitled to the most effectual remedy within the power of a court of chancery.”Spencer v. London & B. R'y Co., 1 Railway Cas., 159; 2 Joyce on Inj., 903. Upon a bill filed by the attorney general, an injunction was granted to restrain commissioners from paying out a fund to promote the passage of a bill in parliament, which fund was by act of parliament devoted to the construction of works of a public character. Attorney Gen'l v. Andrews, 2 MacN. & G., 225; 1 Joyce on Inj., 740. An injunction will be granted to restrain corporations when they go beyond the line of their authority and violate the rights of others. The attorney general is the proper party to bring such suit, when the public right is violated. Kerr on Inj., 542, 544, 570. A bill of injunction to restrain a railway company from closing its road to the public use should be brought by the attorney general, and not by a private person as one of the people; and such a bill will lie. Thorne v. Taw Vale R'y & Dock Co., 13 Beav., 10; Browne v. Monmouthshire Railway & Canal Co., Id., 32. An injunction will be granted to restrain railway companies from entering into arrangements with other companies to share profits, in order to avoid competition. 2 Joyce on Inj., 845. The attorney general should bring his bill to restrain a corporation from violating the law, when the act affects the public at large. Bagshaw v. Eastern Union R'y Co., 7 Hare, 114; Buck Mountain Coal Co. v. Lehigh Coal & Nav Co.,50 Pa. St., 91; 2 Story's Eq. Jur., pp. 760 et seq.; 2 Redf. on R. W., 32 et seq.; Attorney Gen'l v. Hudson River R. R. Co., 1 Stockt., 526. An injunction was granted to restrain a railway company from removing a part of its track to the great inconvenience of the public. *469 People v. Albany & Vt. R. R. Co., 37 Barb., 216. See also People v. The Mayor, etc., 32 Barb., 102; Osborn v. Bank of U. S., 9 Wheat., 738. The case of Att'y Gen'l v. Utica Ins. Co., 2 Johns. Ch., 371, is not authority in this case, because, (a) It was not a proceeding against a banking corporation, to restrain it from violating a law of the state relating to its own franchises and powers. (b) The offense there complained of “did not touch the enjoyment of property,” and was one by which “no particular individuals were affected or disturbed in the enjoyment of their private rights.” (c) Because other remedies, at law, were adequate in that case; whereas, in this case, quo warranto would not lie to oust the railway companies from the particular franchise of regulating and controlling their own rates, but would have to be brought to dissolve the corporation, while individual prosecutions would be infrequent, voluntary, dilatory and expensive, and would never cure the public mischief. (2) Jurisdiction of the subject matter of this bill has been specially conferred upon courts of equity in this state by statute. Sec. 13, ch. 148, R. S.; sec. 5 of the act for the organization of the judiciary, R. S. 1858, appendix; sec. 5, ch. 115, R. S. The supreme court has power to issue writs of injunction in any proper chancery case, by virtue of the provisions of the constitution and the statutes. Whenever it is proper and within the chancery jurisdiction of any court of this state, the supreme court may entertain an injunction bill and issue the writ; and if the statute has extended such equitable relief and jurisdiction to cases in which they did not previously exist, the supreme court may take cognizance of such cases. The object of sec. 13, ch. 148, was not to give the circuit court merely a new jurisdiction, but to bring within chancery jurisdiction a new class of cases, or cases in which the legislature deemed it important to render clear and unquestionable the jurisdiction of equity by injunction.

**12 B. The validity of ch. 273, Laws of 1874.

1. The act is still in force, unrepealed. The contemporaneous *470 action of the legislature on this subject makes the legislative intent not to repeal this law by implication too clear to admit of any doubt. 2. The act is not partial or special. It has all the uniformity necessary to a law of taxation, by embracing in its regulations the whole of the classes named; and is general in its application to all the railways in the state, thus classed. 3. The contracts and legislative acts by which corporations of Wisconsin and Illinois, in control of continuous lines of road in the two states, have been brought under the same general management, do not affect the question. No action on the part of the state, and no arrangement or contract with our railway corporations, can suspend, evade or defeat a plain provision of the state constitution reserving the sovereign power to alter or repeal acts of incorporation. Whatever arrangements or contracts may exist between the railway corporations of this state and similar corporations in other states, all our corporations must necessarily remain domestic, with a well-defined corporate identity, subject to our own laws and constitution. Farnum v. Blackstone Canal Corp., 1 Sum., 47, 62; Racine & Miss. R. R. Co. v. Farmers' L. & T. Co., 49 Ill., 331; McGregor v. Erie R. R. Co., 35 N. J., 89. 4. The provisions of the act regulating the tolls chargeable by the defendant companies, are constitutional and valid. (1) These railway corporations are not mere common carriers. An incorporated railway carrier is confined to fixed routes and to current rates or fixed compensation; must have all the means of carriage necessary for the public business; cannot suspend or abandon business at pleasure; and must not discriminate in charges and tolls. Such a carrier is the creation of an act of the law, and cannot exist, cannot construct or operate a railway, own or alienate property, make contracts, or do any act, without legislative permission and a grant of powers and franchises. The business in which such corporations are engaged is not a private business or enterprise, but public, and for the public use. The investment of private capital in such business under an act of incorporation *471 and for the purpose of private gain, may distinguish such corporations from municipal or purely public ones; and they may for this reason alone be called private corporations; but they are never considered such as to their objects or purposes, and private gain does not form even a part of the consideration that moves the government in creating them. Their true nature and objects are suggested by the use of the common law proceeding in quo warranto. This writ was made for the purpose of inquiring into and taking away the franchises of municipal corporations. It was afterwards extended to embrace business and commercial corporations, called private; but the proceeding was in no way changed, and the judgment at common law had the same effect in all cases, which was and is the forfeiture of the franchises and the confiscation of the personal property to the government, and the reversion of the real property of the corporation to the former owners. This proceeding at common law, in England and in this country, entirely disregards the interests of stockholders and creditors, and sets aside, without any consideration, vested rights, private interests and contracts which have grown out of the existence and business of the corporation. This proceeding at common law only contemplates such a corporation as a public one in every respect, and for the public use alone. 1 Ld. Raym., 426; 8 Pet., 281; 18 How. (U. S.), 480; 1 Blackf., 278; 23 Pick., 334. The statutes of our state have indeed changed this proceeding, and undertaken to save the property of shareholders and the rights of creditors, by treating the corporation, after a judgment of forfeiture in quo warranto, as still existing for a limited time, for a court of equity to administer upon its estate and pay the debts. But the proceeding is still utterly destructive of the boasted private rights of the stockholders in the business and property of the corporation. A legislative custom has grown up of late years, of incorporating a purely private business, in which the public has no interest at all, or only an incidental one on the ground that it is in the general *472 interests of trade. Bad as this custom is, the state has never yet granted to any such private corporation the right to use the high government prerogative of eminent domain, or to take private property for their use. That right cannot be given for a private use, but only for a public use; and so far as it is given to railway companies, they are treated as public corporations in every respect. Beekman v. Saratoga & S. R. R. Co., 3 Paige, 58, 74, 75; Miners' Ditch Co. v. Zellerbach, 37 Cal., 543. It is now claimed, and has been decided by the most respectable judicial authority in this country, that railroads are public highways sub modo, and when the corporations are dissolved by either judicial or legislative action, the roads pass into the hands of the state, to be kept and used, through some agency to be provided by the legislature, for the good of the public as highways. That the state has the right to so use and control railroads after the dissolution of the corporations, there can be no doubt; but such right has never been exercised, because a different method has been adopted for disposing of the railroad and other property of defunct corporations, through the court of chancery. But this is a mere provision of statute, which may be changed at the pleasure of the legislature. That “a railroad established and existing under an act of incorporation is a public highway, but only to be used in a different mode,” is the language of the highest authority. Ang. on H. W., § 18; Beekman v. S. & S. R. R. Co., 3 Paige, 74;Rex v. Severn & W. R. R. Co., 2 Barn. & Ald., 646; Erie & N. E. R. R. Co. v. Casey,26 Pa. St., 287; Olcott v. Supervisors etc., 16 Wall., 695; Thorpe v. R. & B. R. R. Co., 27 Vt., 140;L. C. & C. Railroad Co. v. Chappell, 1 Rice (S. C.), 383; West River Bridge Co. v. Dix, 6 How. (U. S.), 546. (2) Whatever private individuals might or might not be able lawfully to do in building and operating a railroad without a charter from the state, it is sufficient to say that the two defendants are railway corporations, chartered by the state, and that they still use and enjoy its franchises, and have constructed their roads by the use of the *473 sovereign right of eminent domain; and it is only material to inquire what right the state has reserved to control them, or to repeal or alter their act of incorporation. They are estopped in this proceeding to deny their corporate character. State ex rel. Waring v. Ga. Med. Society, 38 Ga., 608; Alton & U. A. H. R'y & Carrying Co. v. Deitz, 50 Ill., 210; Liverpool Ins. Co. v. Massachusetts, 10 Wall., 566. And it is further to be observed that the right to demand and receive compensation for the carriage of persons and property is expressly conferred upon both these defendants by their charters, and has been accepted and enjoyed by them as a part of their charters and as a corporate franchise. (3) The right of a railway company to collect tolls from the public is of necessity a corporate franchise, and must be granted by the legislature; and therefore, in this state, under the reserved power of the legislature to alter and amend acts of incorporation, such tolls may be regulated and fixed by law, without the consent of the corporation. “A right to claim toll can only exist by grant or prescription.” 1 Wilson, 115; Strange, 1238; Coke Eliz., 710; Cooper, 47; 11 East, 476; 4 Taunt., 520; 1 Barn. & Cress., 223, 424; 1 Atkyns, 815; 2 Black. Com., 47; 4 Mod., 320; 2 Rolles' Ab., 171; Hull Dock Co. v. Browne, 2 Barn. & Ad., 58; Barrett v. Stockton R. R. Co., 2 Man. & G., 165 (40 E. C. L., 313); Olcott v. Banfill, 4 N. H., 545; Perrine v. Ches. & Del. Canal Co., 9 How. (U. S.), 184; A. & A. on Corp., Appendix, 820; Ang. on Highw., § 368, and cases there cited; Hamilton v. Keith, 5 Bush (Ky.), 458; Charles River Bridge v. Warren Bridge, 7 Pick., 495; Beekman v. S. & S. R. R. Co., 3 Paige, 62, 63, 64, etc.; McGregor v. Erie R. R. Co., 35 N. J., 89, 115; State v. Boston, C. & M. R. R. Co., 25 Vt., 433; Hamilton v. Keith, 5 Bush, 460; Whiting v. S. & F. R. R. Co., 25 Wis., 167, 196. Counsel then examined and distinguished the cases of Allen v. McKeen, 1 Sum., 278, 302; Comm. v. Essex Co., 13 Gray, 353 (comp. 104 Mass., 447); Sage v. Dillard, 15 B. Mon., 347; Beardsley v. Ontario Bank, 31 Barb., 625; Bank of Middlebury v. Edgerton, 30 Vt., 190;Co., 25 *474 v. Columbus, P. & Ind. R. R. Co., 10 Ohio, 386. (4) The reserved power to repeal, alter or amend acts of incorporation may be exercised in respect to all charters of private corporations; and such alterations or amendments may affect any right, franchise or power conferred by the charters, and to any extent, regardless of any vested rights of property, or the rights of creditors, or the obligation of contracts, growing out of or in any way connected with such charters and the operations of such corporations. Read v. Frankfort Bank, 23 Me., 318; 2 Fairfield, 284; 18 Me., 109; Wilson v. Tesson, 12 Ind., 286; City of Roxbury v. B. & P. R. R. Corp., 6 Cush., 424;Miner's Bank v. U. S., 1 Greene (Iowa), 563; Story v. Jersey City etc. R'y Co., 10 N. J. Eq., 13; Proprietors etc. v. Haskell, 7 Me., 474; State ex rel. M. & E. R. R. Co. v. Miller, 31 N. J., 521; State ex rel. Jersey City & B. R. R. Co. v. Mayor etc., Id., 575;State v. Curran, 7 Eng. (Ark.), 321; Mass. Gen'l Hospital v. State Mut. Life Ass. Co., 4 Gray, 234;Hugh White v. S. & U. R. R. Co., 14 Barb., 559; Hyatt v. McMahon, 25 Id., 458; 10 Id., 282;The Reciprocity Bank, 17 How. Pr., 323; Sherman v. Smith, 1 Black, 587, 593; Bailey v. Trustees, etc., 6 R. I., 491; Albany Northern R. R. Co. v. Brownell, 24 N. Y., 351 (overruling 21 Barb., 513); 1 Kern., 102; 4 Id., 336; 21 N. Y., 9.

**13 I. This proceeding is founded on sec. 13, ch. 148, R. S. (Tay. Stats., 1731). 1. The manifest object of this statute, so far as it relates to corporations, is not to regulate the manner in which a corporation shall exercise a franchise conferred by its charter, but to prevent it from exercising franchises not conferred. Thus a railroad corporation could be enjoined under this statute from issuing bank bills, but could not be required by injunction to keep its fences in order, cause its conductor to wear a particular kind of badge, or regulate the number of its brakemen. If the contrary be true, the whole execution of the law in reference to railways would be remitted to a court of chancery. *475 The general principle of law is settled, that where an act is forbidden, and a penalty provided for any violation of the prohibition, the remedy is by enforcement of the penalty, and equity has no jurisdiction. Attorney Gen. v. Utica Ins. Co., 2 Johns. Ch., 371;Comm. v. Wellsboro & Tioga Plank Road Co.,35 Pa. St., 152; Putnam v. Sweet, 1 Chand., 286;Brown's Appeal,66 Pa. St., 155; Jones v. Little Rock, 25 Ark., 301; Morris & E. R. R. Co. v. Prudden, 20 N. J. Eq., 530; Smith v. Lockwood, 13 Barb., 213. 2. This statute confers jurisdiction upon the circuit court only. It is said that this court acquires jurisdiction by virtue of sec. 3, art. VII of the state constitution, which gives it power to issue writs of injunction and to hear and determine the same. But when the constitution was adopted, the power to issue a writ of injunction was a certain, well defined and limited power, and did not extend to cases of this kind. The constitution provided that this court, except in cases otherwise provided in that instrument, should have “appellate jurisdiction only.” If the legislature may confer jurisdiction on this court which it did not possess before the statute was passed, it may confer upon it jurisdiction in all cases, and the constitutional provision last cited becomes of no effect whatever. It may also, in that case, take away the jurisdiction of this court by repealing all laws authorizing writs of habeas corpus, mandamus, injunction, quo warranto and certiorari, and forbidding the issuing of those writs. Under this mode of construction the constitutional provisions granting and limiting the jurisdiction of the court become of no value. State Bank v. Cooper, 2 Yerg., 620; Attorney Gen'l v. Tudor Ice Co., 104 Mass., 239; 1 Abb. Pr. R., N. S., 169. 3. Before the passage of the statute above cited, it is clear that no writ of injunction could have been legally issued in this case; that the remedy against a corporation which exercised any franchise, liberty or privilege, or transacted any business, not authorized by its charter, was by writ of quo warranto, and that the only mode of enforcing a statute to regulate the manner *476 of doing business by a railroad company was by a proceeding to enforce the penalties provided by the statute, in either of which cases the defendant would have been entitled to a trial by jury. Sec. 5, art. I of the state constitution, provides that the right of trial by jury shall remain inviolate, and shall extend to all cases at law. Could the legislature, by changing the name of the proceeding from one at common law to one in chancery, thereby deprive a party of his right to a trial by jury? If it can go one step it can go any length, in that direction, and a citizen will hold his right to a jury trial at the pleasure of the legislature. Tabor v. Cook, 15 Mich., 326; Work v. The State, 2 Ohio St., 296; Exline v. Smith, 5 Cal., 112; Hughes v. Hughes, 4 Mon., 43;People v. Phillips, 1 Edmonds' Select Cas., 386; Norval v. Rice, 2 Wis., 22; Oatman v. Bond, 15 Id., 26; Truman v. McCollum, 20 Id., 369; Town of Sheboygan v. S. & F. R. R. Co., 21 Id., 667; Callanan v. Judd, 23 Id., 348.

**14 II. Under secs. 31 and 32, art. IV of the state constitution as amended in 1871, it is evident that the legislature can regulate the powers of railroad corporations only by general laws, uniform in their operation throughout the state. Ch. 273 of 1874 is a special law. By its classification of railroads, class A includes all roads now owned, operated, managed or leased by three companies specified by name; class B includes all roads owned, operated, managed or leased by three other companies specified by name; and class C includes all other railroads in the state; and different rates of fare and freight are prescribed for the three classes severally. The discrimination is not made to depend upon the character of the roads, their cost, or the amount of their business, but wholly upon the person or company owning or operating the road. It is difficult to conceive of legislation more special than this. If the right to collect freight and fare is a corporate franchise granted by the legislature, then to grant to one company the right to collect one rate of fare and freight, and to another company the *477 right to collect another rate, is to grant special corporate powers to each. If it be said that the railroads are classified in this act with reference to the gross amount of their receipts, or of their profits, the answer is, that if it is within the province of the legislature to establish a general rule, founded upon cost of road, amount of business, or amount of receipts, it is not within the province of the legislature to determine what companies come within the rule thus established, but that is a judicial question. The legislature may determine that every citizen of the state shall pay a tax of $40 on every $1,000 of property he owns in the state; but it cannot determine that A shall pay a tax of $40, B of $60, and C of $80, although as a matter of fact A has $1,000, B $1,500, and C $2,000 of property in the state. Durkee v. Janesville, 28 Wis., 464; Lewis v. Webb, 3 Greenl., 333; Budd v. The State, 3 Humph., 490; Wally's Heirs v. Kennedy, 2 Yerg., 555; State Bank v. Cooper, Id., 606; Vanzant v. Waddel, Id., 270; Tate v. Bell, 4 Id., 207; Officer v. Young, 5 Id., 322. The legislature has neither the constitutional right nor the means of finally determining any fact upon which the rights of any citizen depend. Jones v. Perry, 10 Yerg., 80; Simonds v. Simonds, 103 Mass., 572; State v. Tappan, 29 Wis., 681.

III. Sec. 13, ch. 273, Laws of 1874, attempts to give the railroad commissioners power to classify all articles of freight, and to reduce the rates on any of the railroads, and declares that companies which shall refuse to conform to the rates fixed by the commissioners shall be guilty of a misdemeanor, etc. This is a delegation of legislative power which the legislature had no power to make. By the constitution of this state (art. IV, sec. 1), the legislative power is vested in the senate and assembly. The general principle applicable to every delegated power requiring knowledge, discretion and rectitude in its exercise, is that such power cannot be delegated. C. W. & Z. R. R. Co. v. Comm's of Clinton County, 1 Ohio St., 87; People v. Collins, 3 Mich., 344; Rice v. Foster, 4 Harrington, 487; *478 Parker v. The Comm., 6 Barr, 507; Bancroft v. Dumas, 21 Vt., 456.

**15 IV. Said ch. 273 points out the particular manner in which the defendant shall exercise certain franchises; and it provides specific penalties for a violation of its requirements. Whether, admitting the validity of the act, such obedience could be enforced by mandamus is at least extremely doubtful; but it admits of no doubt that the enforcement of the act by a chancery proceeding is in violation of every principle of chancery law, and without the support of a single precedent. Such penalties as the legislature has chosen to affix to a violation of its command, it has declared in the act; and with them the attorney general must be content.

V. The granting or refusing of an injunction, in a case where equity has jurisdiction, is purely a matter of discretion with the court; and it will not interfere unless it is satisfied that the case is one in which the jurisdiction can be properly and beneficially exercised, and ought, in fact, to be exercised. Kerr on Injunctions, 6; Attorney Gen'l v. Bank, 1 Hopk., 596; Pettibone v. R. R. Co., 14 Wis., 443;Attorney Gen'l v. Cleaver, 18 Ves., 218; Frankford v. Lennig, 1 Am. Law Reg., 357.

As to the validity of ch. 273, Laws of 1874, Mr. Lawrence further argued substantially as follows:^a1 For the purposes of this argument, regarding the company as purely a domestic corporation, it is conceded that the provisions of sec. 1, art. XI of the constitution of Wisconsin, place the franchises of the company, that is, the right to exist and transact its business as a corporation, and to condemn land under the power of eminent *479 domain, entirely within the control of the legislature; but they give to that body no power whatever over property lawfully acquired by the corporation while its charter was in force, which the legislature could not exercise over the property of natural persons. If the legislature can require this defendant to carry passengers for three cents per mile, or to transport a hundred pounds of freight twenty-five miles for six cents, it can require passengers to be carried for one mill per mile, and a hundred pounds of freight to be carried twenty-five miles for the same compensation. The power to pass one law involves the power to pass the other. The principle of this act, then, is clearly this: that the legislature of Wisconsin may, under the power reserved by its constitution to “alter or repeal” a charter at any time after it is granted, simply confiscate, for the supposed benefit of the public at large, the property of the stockholders and the debts due the creditors of the company. Although the corporation, as an artificial person, owns the legal title to this road, yet the road belongs in substance to the individual stockholders, subject to the lien of the bondholders. It would perhaps be more strictly accurate to say that the corporation owns this property in trust for the bondholders and stockholders; but they hold their equities, and the corporation its legal title, by as sacred a right as any individual holds his own. A legislature acting under the limitations imposed by all our American constitutions in regard to the sanctity of private rights, cannot take the property of one individual or class, for the benefit of another individual or class. Even when it is taken for the benefit of the state, under the power of eminent domain, these constitutions all provide that due compensation must be made. The constitutional provision reserving to the legislature the power to alter or repeal charters must be construed so as, if possible, to make it consistent with the other provisions of the same instrument, and especially with the familiar and fundamental principle above stated. The legislature can alter a charter only by an act which belongs to the *480 sphere of legislation. It cannot confiscate property. It cannot, under pretense of amending a charter, despoil a chartered company for the public good. Such an act is not legislation; it is merely a legislative decree divesting private property. Blackstone says: “A particular act of the legislature to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of municipal law; for the operation of this act is spent on Titius only, and has no relation to the community in general; it is rather a sentence than a law.” The constitution of Wisconsin goes further than most state constitutions in putting restraints upon governmental power, to prevent its being exercised to the injury of natural rights. It even provides in terms that the legislature shall pass no law impairing the obligation of contracts--a provision not generally found in state constitutions, as the similar provision in the federal constitution is sufficient. Is it not reasonable to say that when the legislature exercises the power of repealing or altering charters, it must do so in a mode not antagonistic to the other provisions of the constitution, or to its general spirit, and therefore without destroying the vested rights of property? It may control the mode of using the chartered privileges so as to make their use consistent with public safety, or with the rights of others, as it may control the enjoyment of individual property for the same purpose; but if it seeks, for the supposed benefit of the public, to alter the charter in a manner which will destroy the value of the corporate property, it must provide just compensation therefor. Can the legislature, at its discretion, under the power to repeal or alter a charter, take the property of the corporation for the benefit of the public without making compensation to the owners? And to take away the income of property is, in principle and in fact, to take the property itself. Pumpelly v. Green Bay Co., 13 Wall., 166. Moreover the power of the legislature under the clause of the state constitution above cited, is to be determined by reference not only to the other provisions of the same instrument, but *481 also to the federal constitution. The 14th amendment provides that no state shall “deprive any person of life, liberty or property, without due process of law.” Under this amendment, every person holding property within the limits of the United States is protected against the arbitrary divestiture of his title by an act of the state legislature. The constitution of Wisconsin was adopted in 1848. At that time there was not a mile of railroad in the state. But it was known that under special charters, privileges were sometimes claimed to which the state could not with propriety submit. Some of these questions had been raised in other states, and litigation had ensued. The right of taxation had been denied, and the control over the operations of chartered companies, which the state must exercise under its police power, was liable to be disputed, because of the difficulty which courts have always found in determining the precise extent to which that power extends. Hence the insertion of this clause in the Wisconsin constitution. Properly construed, it is a wise provision. It enables the legislature to restrain corporations from infringing on the rights of others, and to deal with them as it deals with natural persons. This clause was inserted to remove all difficulty from the exercise by the legislature of a proper and just control over corporations; but it does not authorize the legislature to do with the property of a corporation, or with its income, what it could not do with the property or income of a natural person engaged in the same vocation. The legislature may modify or take away what it gave, but nothing more. The property, which it did not give, it is forbidden to take without compensation. It may require a company to fence its road, although it thus adds to its burdens, because it could require a natural person to perform similar duties for the public safety. It may forbid the company to charge unreasonable rates of freight under penalty of a fine, leaving the decision of the question to the courts, and thus take away the privilege given by the charter to the company of fixing its own freights at discretion; but it *482 cannot prescribe the rates, any more than it could do so to a natural person. It may make any amendments which do not take from the company rights which the legislature could not take away from a natural person. It may repeal, at discretion, the franchise of a purely domestic corporation. The corporation would then be dissolved, but the stockholders would remain, and would still own the property. Even the fee simple of the roadbed is vested in the corporation to the fullest extent by the terms of some of these charters, and of course there could be no question as to the rails, locomotives and cars. The state, having repealed the franchise, can take the property and pay due compensation, or it can permit the stockholders to operate the road as copartners, and can exercise the same control over them as over other natural persons exercising the vocation of a common carrier. But in no mode can it confiscate the property or its income to the public use without making due compensation. Sage v. Dillard, 15 B. Mon., 353; Miller v. N. Y. & Erie R. R. Co., 21 Barb., 513; Comm. v. Essex Co., 13 Gray, 253; Miller v. The State, 15 Wall., 498; Holyoke Co. v. Lyman, Id., 522. 2. As to the effect of the reserved power over charters in reference to the rights of creditors of the corporations. Under authority of the legislature this defendant has contracted and now owes a debt amounting to many millions of dollars. The state now passes an act taking from the corporation the income of its property for the supposed benefit of the public, and thereby taking away all means of performing its contracts with its creditors. If, before the bonds were issued, the legislature had thought proper to take away from the corporation the power to issue them, its power to do so could not have been denied. But the bonds having been issued, the legislature cannot now impair the contract between the corporation and the bondholders by taking from the corporation all means of payment. Under the power given by the charter, the company has conveyed its property subject to a right of redemption. Can the legislature, under pretense of amending the *483 charter, annul that conveyance? Can it enact, as in principle it has done, that all the income from the property conveyed, above the expenses of operating the road, shall be paid into the state treasury or devoted to the public uses? Is this, in any just sense, an amendment of the charter? Is it the kind of amendment contemplated by the constitution of Wisconsin? That instrument provides that the legislature may grant charters of incorporation, and shall have the power to alter them, but shall not impair the obligation of contracts. The two provisions, taken together, mean that as between the state and the corporation the charter shall not be regarded as a contract beyond the power of the state to alter, but that the legislature shall not impair contracts which the corporation has made with third persons, under a power given by the charter. Bronson v. Kinzie, 1 How. (U. S.), 311; Durfee v. Old Colony & Fall River R. R. Co., 5 Allen, 247; Tomlinson v. Jessup, 15 Wall., 459. 3. Said sec. 1, art. I of the state constitution, provides that the charters of companies incorporated under that section may be altered or repealed. This can refer only to companies existing and operating solely under Wisconsin charters, and within the limits of this state. But in the present case, the legislature of Wisconsin, having first chartered a company by virtue of the authority of that section, subsequently, by virtue of its general legislative power and not under any power specifically conferred by that section, authorized such company to consolidate its stock and franchises with a company existing under the laws of Illinois. We submit that a company thus formed is not one existing merely under a charter of the Wisconsin legislature, but one existing under the acts of consolidation passed by the legislatures of both Wisconsin and Illinois, and therefore not subject to the exercise of the power over charters reserved by the Wisconsin constitution in reference to corporations deriving their existence from the legislature of Wisconsin alone. Still less is it applicable to the present company, organized as it was by the purchasers of the consolidated Chicago & Fond du Lac *484 road, sold as one road, and the purchasers incorporating under the pledge given in advance by the legislatures of both states, that they might thus incorporate as one company, owning a road extending into each state. We do not pretend that one state can create a railroad corporation to exercise its franchises, except on sufferance, in another state. We concede that so far as the roadbed of this company is situated in Illinois, it is to be regarded as existing under Illinois law, and so far as it is situated in Wisconsin, it is subject to Wisconsin law. We concede that there is technically a Chicago & Northwestern Railway Company for Illinois, and another for Wisconsin. But this is only technically true. Practically, the Chicago & Northwestern road in Wisconsin, and the same road in Illinois, are represented by the same stock, which also includes the Galena & Chicago Union Railway Company, whose stockholders surrendered their stock for that of this defendant, representing a road partly lying in one state and partly in another. We insist that this is not a corporation existing by virtue of any act of the Wisconsin legislature alone, and therefore does not fall within the terms of the Wisconsin constitution. That this corporation is legally created, has never been denied; and yet it could not have been created as it now exists without the coöperative legislation of both Wisconsin and Illinois. The Chicago & Northwestern Railway Company of Wisconsin, although existing as a sort of legal fiction, in fact has no road. The same is true of the Chicago & Northwestern Railway Company of Illinois. But these two companies consolidated into one do own and control a road running into both states. The road, so far as it is situated in each state, is of course subject to the laws of that state; but the legislature of Wisconsin cannot enact a law in reference to this consolidated road, existing under the acts of two states, which it could not, under the federal constitution, have enacted even in regard to its domestic roads but for the provision in its constitution reserving the power to alter or repeal the charters of such domestic roads. 4. The act of *485 1874, in question, is void because it attempts to regulate interstate commerce. State Freight Tax, 15 Wall., 232.

**16 1. This court has no jurisdiction to grant the injunction here sought. (1) The purpose of the suit is to enforce by injunction a criminal law of the state. There is no complaint of individual or special injury, but the action is based wholly on the violation of a public penal statute by the defendant, and the only relief asked is by an injunction to prevent such violation. By the general principles of equity jurisprudence, chancery has no jurisdiction to grant an injunction for such a purpose. Kerr on Inj., § 1; Hilliard on Inj., § 1; High on Inj., § 23; 1 Joyce's Law of Inj., 716; Chancellor KENT in Att'y Gen'l v. Utica Ins. Co., 2 Johns. Ch., 371; Chancellor SANFORD in Att'y Gen'l v. Bank of Niagara, 1 Hopk., 354;Sparhawk v. Union R'y Co.,54 Pa. St., 401; Att'y Gen'l v. City of Patterson, 1 Stockt. (N. J.), 624; Cochran v. McCleary, 22 Iowa, 75; Smith v. Lockwood, 13 Barb., 209; Att'y Gen'l v. Bank, Harrington (Mich.), 315; People v. Miner, 2 Lans., 396;Mayor of Hudson v. Thorne, 7 Paige, 261; Brandreth v. Lance, 8 Id., 24; Babcock v. N. J. Stock Yard Co., 20 N. J. Eq., 296; Jones v. Little Rock, 25 Ark., 301; State v. Saline Co., 11 Am. R., 454; Att'y Gen'l v. Salem, 103 Mass., 138;Att'y Gen'l v. Tudor Ice Co., 104 Id., 239. The jurisdiction granted to this court by the state constitution, to issue the writ of injunction, relates of course to the chancery writ then issuable by courts of equity in accordance with the clearly defined principles of equity jurisprudence, as existing when the constitution was established. (2) This court takes no power to grant an injunction in such a case from sec. 13, ch. 148, R. S. That statute is first found in this state as part of ch. 114, R. S. of 1849, and seems to have been adopted from New York. It has always been regarded by the profession and held by the courts to be a plain innovation upon the principles by which courts of chancery proceeded, and an anomaly in equity jurisprudence, and as such to be enforced *486 according to its strict letter, and to authorize an injunction only when a case was brought clearly within its literal terms. Verplanck v. Mercantile Ins. Co., 2 Paige, 438. But this new jurisdiction or power is expressly given by the statute only to the circuit courts. Expressio unius exclusio alterius. Any superior or municipal or county court with civil jurisdiction might as properly assume power to enjoin, under this statute, as the supreme court. (3) Has this court, by the constitution, original jurisdiction of bills in equity for injunctions? Sec. 3, art. IV of that instrument, declares that “the supreme court shall have a general superintending control over all inferior courts; it shall have power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and other original and remedial writs, and to hear and determine the same.” The power is, first, to issue the writs; second, to hear them; third, to determine them. Injunction being in no possible case an original writ, it never can be issued except in a case in which the court has first obtained jurisdiction of the parties to be affected by it. In cases of habeas corpus, mandamus, quo warranto, certiorari, and other similar writs, such as writs of error and of prohibition, the writ itself, when issued, brings the case into court, to be heard and determined. But the court is asked here to take jurisdiction by an ordinary summons, try and determine an ordinary suit, and then issue a writ of injunction. If the court has original jurisdiction of this case under the power to issue “other original and remedial writs,” then it has original jurisdiction of every possible case, either at law or in equity. If the claim for this court of original jurisdiction in equity cases is based upon its power to issue a writ of injunction, then it follows that if on the trial of such a case, a successful defense is made on the merits, the judgment of the court must be that it had no jurisdiction, instead of a judgment in defendant's favor; and such judgment would be no bar to a new suit. In other words, if the defendant is beaten the court has jurisdiction; if he is successful, the court *487 has no jurisdiction. The constitution of Alabama (adopted in 1818) contained this provision: “The supreme court, except in cases otherwise directed by this constitution, shall have appellate jurisdiction only, which shall be coextensive with the state. * * * Provided, that the supreme court shall have power to issue writs of injunction, mandamus, quo warranto, habeas corpus, and such other remedial and original writs as may be necessary to give it a general superintendence and control of inferior jurisdictions.” The decisions construing this section are these: Ex parte Simonton, 9 Porter, 383;Ex parte Mansony, 1 Ala., 98; State v. Williams, Id., 342; State v. Porter, Id., 688;Ex parte Tarlton, 2 Id., 35;Ex parte Grant, 6 Id., 91;Ex parte Chaney, 8 Id., 424;Ex parte Floyd, 40 Id., 116;Ex parte Henderson, 43 Id., 392. The constitution of Missouri, adopted in 1820, contains the following provisions: “The supreme court, except in cases otherwise directed by this constitution, shall have appellate jurisdiction only, which shall be coextensive with the state, under the restrictions and limitations in this constitution provided. The supreme court shall have a general superintending control over all inferior courts of law. It shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, and other original remedial writs; and to hear and determine the same.” The decisions upon these provisions, or some of them, are: Lane v. Charless, 5 Mo., 285; Foster v. The State, 41 Id., 61; Vail v. Dinning, 44 Id., 210. The case last named was before the court on quo warranto, as reported in 53 Mo., 97. The constitution of Arkansas adopted in 1836 provided as follows: “The supreme court, except in cases otherwise directed by this constitution, shall have appellate jurisdiction only, which shall be coextensive with the state. * * * It shall have a general superintending control over all inferior and other courts of law and equity. It shall have power to issue writs of error and supersedeas, certiorari and habeas corpus, mandamus and quo warranto, and other remedial writs, and to hear and determine the same.” The decisions *488 upon these provisions fluctuated until 1851, when they were all revised in 6 Eng., 618. See Ex parte Anthony, 5 Ark., 363; Levy v. Lychinski, 3 Eng., 113; Carnall v. Crawford County, 6 Id., 617; Jones v. Little Rock, 25 Ark., 284. See also in connection with these cases, State v. Farwell, 4 Chand., 100, 106. The cases in 26 Ark., 287, 25 Cal., 26, and 53 Mo., 97, relied on by the attorney general, were cases of quo warranto, and not of injunction, and do not overrule the former cases. It may be conceded that the case of Att'y Gen'l v. Blossom, 1 Wis., 317, distinctly holds that this court has original jurisdiction of the writ of quo warranto, but that is all that was or could be decided as to jurisdiction in that case, for that was all that was before the court. The provisions in the constitution of Arkansas of 1836, above cited, are identical in effect with those of our state constitution on the same subject; for although the writ of injunction is not named in it, “other remedial writs” are authorized, and an injunction is such a writ. The decision in 25 Ark., 284, is therefore entirely in point. The court there say that after years of patient investigation they revise the whole course of decision in that state, overruling some decisions, and determining that the original jurisdiction given by the constitution cannot be invoked when there are inferior courts in existence authorized to hear and determine the case. This we understand is the force and scope of the decisions in 25 Ark., 284, and 6 Eng., 617. So far as injunctions are concerned, we understand that no change has been made by later decisions in that state. Under a new and different constitution a different rule is established in cases of quo warranto. Under the rule laid down in 25 Ark., this court will not take jurisdiction of an information like this, because there are infeferior courts upon which this jurisdiction is expressly conferred by secs. 13, 14, ch. 138, R. S. Counsel further urged that the chief trust committed by the constitution to this court is that of the appellate jurisdiction; that original jurisdiction was intended to be exercised by the court only in exceptional cases; *489 that in all other cases the court ought sacredly to preserve its character as an appellate court, calmly reviewing the decisions of other courts, undisturbed by the influences which affect a nisi prius trial; and that justice to parties requires that wherever it is possible they should have preserved to them the advantage of a review on appeal. 2. The injunction sought should not be granted because the information is not verified, and no affidavit has been served or noticed as the ground on which the application will be made, and none can be used that are not served. Corwith v. Bank of Illinois, 8 Wis., 376; R. S., ch. 129, sec. 3, and sec. 14, ch. 148; Att'y Gen'l v. Bank of Chenango, Hopk., 596; Pidgeon v. Oatman, 3 Rob. (N. Y.), 706. 3. The injunction sought should be refused because of the pendency of the information in the nature of quo warranto against the same defendant for the same cause of action as set up in the answer. R. S., ch. 125, sec. 5, subd. 3; Groshon v. Lyon, 16 Barb., 461; Ogden v. Bodle, 2 Duer, 611; Ward v. Gore, 37 How. Pr., 119. 4. Assuming ch. 273, Laws of 1874, to be a valid act, and that this court has full jurisdiction to grant the writ, still it ought not to be granted upon the facts appearing in this case. The act imposes penalties quite sufficient for the protection of any citizen who may feel that he has been injured; and therefore there is no such public necessity, no such impending danger to the rights and interests of the people of the state, as would justify a court of equity in interfering by injunction; especially if it be true, as set forth in the answer and shown by the affidavits of men of great experience in such matters, that a full compliance with the law would be ruin to the defendant. The writ of injunction will not ordinarily be granted when the parties, as in this case, are in dispute concerning their legal rights, until the right is established by law. High on Inj., § 8; Hart v. Mayor, 3 Paige, 213;Mammoth Vein Consol. Coal Co.'s Appeal,54 Pa. St., 183. “Substantial and positive injury must always be made to appear to the satisfaction of a court of equity, before it will grant an injunction; and acts which, *490 though irregular and unauthorized, can have no injurious result, constitute no ground for relief.”Head v. James, 13 Wis., 641; Rogers v. Michigan, 28 Barb., 539; High on Inj., § 9. “The right to an injunction is not a matter of course, but is addressed to the sound discretion of the court, and when it is likely to result in an injury, it will not be granted.” High on Inj., § 13; 5 C. E. Green, 530.

**17 1. The legislature cannot impose upon a railroad company, by any alteration of its charter, the duty of carrying passengers or freight for anything less than a “just compensation.” An extreme case may be put to test a principle. Would an act of the legislature be valid, which should require a railroad company to carry passengers and freight without compensation, and impose penalties for disobedience? Can the state command the services of a person in a matter which relates exclusively to his private calling, and then say that he shall receive no pay for it? This question is answered negatively by this court in County of Dane v. Smith, 13 Wis., 588, where an act of the legislature which recognized the duty of a court to appoint counsel to defend an indigent person charged with crime, but enacted that the county should not be liable to pay the attorney, thus appointed, for his services, was held invalid. An act requiring a railroad company to carry freight and passengers free would not only require the services of the corporation but the entire use of its property, without compensation. Such a use of the property for the public benefit would be a taking of it within the meaning of the constitution (Pumpelly v. Green Bay Co., 13 Wall., 166), and for such taking a “just compensation” must be made. The legislature cannot alter the charter of a private corporation so as to take away the right of trial by jury “in all cases at law;” or so as to take away from it “a certain remedy in the laws,” for all injuries it may receive in its property; or so as to deny it the benefit of a *491 writ of error; or so as to subject it to taxation by any other than the constitutional rule of uniformity. 11 Wis., 35; 12 Id., 47. But if a private corporation is entitled to the benefit of the constitutional provisions just referred to, why is it not also entitled to the benefit of that other constitutional provision that “the property of no person shall be taken for public use without just compensation therefor,” and to the benefit of that principle of universal law which declares that no man's particular services shall be required for the public use without compensation? If the acceptance of a charter subject to the power of the legislature to alter or repeal it, is a waiver of any one of the constitutional safeguards, it is a waiver of all. Such a corporation must therefore be held to stand beyond the pale of the constitution, without a single one of the rights secured by that instrument, or it has a right to just compensation whenever its services are demanded or its property is required for the public use. It is no answer to this to say that the legislature has a right to repeal the charter of a railroad company at any time, and thereby well nigh destroy the value of its property. After such a repeal, the property of the road would remain, unburthened by a franchise which could not be exercised without loss. To continue a company in the possession of its franchises, and require it under heavy penalties to render public service without any compensation, or without an adequate one, is a very different thing.

**18 2. What is a “just compensation,” in any given case, for the services of a corporation or the use of its property, is a judicial question. To say that the state may conclusively fix the price for which it shall command the services of a person or the use of his property, would make the constitutional provision nugatory.

3. If these views are correct, it follows that the court will not issue an injunction requiring the company to carry passengers or freight at the rates prescribed in the act. The only injunction which the court could issue, if any, would be one requiring *492 the company to desist from carrying between places within this state, unless it shall carry at the inadequate rates prescribed by the act--an injunction which would not seem to be founded on any equitable principle. Such an injunction may be asked on the ground that the act forbids the charging of higher rates than those prescribed, and that the company transcends its authority in making such charges. But the act also provides that if any agent of any railroad company shall refuse to receive freight for transportation on the ground that the rates prescribed are too low, he shall be subject to a fine of not less than $200 for every such offense. If this latter portion of the law is invalid, will the former portion of it be enforced? Would the legislature have passed the former portion without the latter? Would it have enacted that the companies should desist from carrying except at the rates prescribed, if it had known that it could not compel them to carry at those rates? If it had foreseen that the only alternative was, that the companies would carry at reasonable rates, though somewhat higher than those prescribed in the act, or would abstain altogether from carrying from place to place within this state, would the legislature have preferred the latter? Any one who considers the evils that would result from such a cessation of railroad service even for a few months, cannot hesitate in his answer to this question. It appearing, then, that the most vital provision of the act, that which it was supposed would compel railroad service at the reduced rates, is invalid, the other and auxiliary provisions fall with it, just as when parts of a statute which are valid, are so connected with other parts which are void, as to warrant the belief that the valid parts would not have been passed alone, the whole will be held inoperative. Slauson v. Racine, 13 Wis., 398; State ex rel. Walsh v. Dousman, 28 Id., 541. Of what use would be an injunction commanding the companies to abstain from carrying unless they will carry at the rates prescribed? What relief would it afford to the public? If the people will not travel or send freight over *493 the roads except at the rates prescribed in the act, the companies will certainly abstain from carrying except at those rates, and there is no need of such an injunction. The only practical effect of it would be to restrain people from traveling on the road or sending freight, however much they may wish to do so. But the manifest purpose of the act was to compel the railroads to perform the service for the rates prescribed. The penalties denounced against charging greater rates and against refusing to carry at the prescribed rates, were alike designed to accomplish that single purpose. And if the rates prescribed are inadequate, if to compel railroad service at those rates would be to take the services of the corporation and the use of its property for the public without just compensation, then the purpose of the legislature was to do an unconstitutional thing, and the act, in its prescription of inadequate rates and its declaration of fines and penalties, should be regarded as invalid.

**19 4. The counsel further contended at length that ch. 273, Laws of 1874, was repealed by virtue of ch. 341, or by virtue of ch. 292, of the same year.

A. The injunction asked for should not be granted against this defendant, because it is not included in class A, but in class C, of railroads, by ch. 273, Laws of 1874. The Milwaukee & St. Paul Railway Company is named as one of the companies in class A; but the averments of the information that this defendant is meant by that name, that it is now known and commonly called by it, and that there is no company in the state of that name, are all denied by the answer, and must be established by proof. The statute itself furnishes no proof of them, and no extrinsic evidence can be allowed. People v. Oakland Co. Bank, 1 Doug. (Mich.), 282. The act is one imposing heavy penalties, and is an attempt to exercise extraordinary powers, and should be strictly construed. As to the rule of construction, see Rex v. Croke, 1 Cowp., 29; *494 Nazro v. Merchants' Mut. Ins. Co., 14 Wis., 295, 298-9;King v. Inhabitants of Mabe, 3 Ad. & Ell., 531.

B. Equity has no jurisdiction to restrain a corporation from the exercise of franchises not granted to it or engaging in business not authorized by law. All questions relating to the extent of franchises granted to corporations, their abuse and forfeiture, and the control of their exercise, belong exclusively to a court of law. On all such questions the defendant is entitled to trial by jury, and the writ of injunction is not the proper remedy. (1) The recognized remedy against corporations for exercising franchises not granted, or for abusing or exceeding those granted, is by quo warranto. This is an ample and complete remedy at law, and there is consequently no necessity for a resort to equity. Att'y Gen'l v. Utica Ins. Co., 2 Johns. Ch., 371;Att'y Gen'l v. Bank of Niagara, Hopkins, 354; Smith v. Lockwood, 13 Barb., 209;Mayor etc. v. Thorne, 7 Paige, 261;Att'y Gen'l v. Tudor Ice Co., 104 Mass., 239;Att'y Gen'l v. City of Salem, 103 Id., 138. (2) The statute alleged to be violated provides penalties for its infringement, and this is the exclusive remedy. It is a settled rule that where a statute gives a new right, or the means of acquiring it, and an adequate remedy for its invasion, parties injured are confined to the statutory redress. Sedgw. Con. & Stat. Law, 93; City of Boston v. Shaw, 1 Met., 138-9; Crosby v. Bennett, 7 Id., 17; Dudley v. Mayhew, 3 N. Y., 15, 16, note and cases cited; 13 Barb., 217.

C. This action cannot be maintained under secs. 13, 14, ch. 148, R. S. The proceeding there authorized is a special one, not in accordance with the course of the common law; and the authority given must be in all respects strictly construed. (1) That proceeding is authorized to be taken in the circuit court only, and not in this court. The power granted to this court by the constitution to issue the writ of injunction must be construed merely to authorize this court to issue such writ in cases where it would be a proper remedy by the general principles of equity jurisprudence. (2) The power given by *495 the statute is to restrain a corporation “from assuming or exercising any franchise, liberty or privilege, or transacting any business, not authorized by the charter of such corporation.” But the complaint in this case does not allege that defendant has exercised any franchise not granted to it, or carried on any business not permitted. The statute does not authorize an injunction to restrain a corporation from a mere abuse of a franchise. See 103 Mass., 139, 140.

**20 D. No case is made in the complaint showing an emergency or necessity requiring the issue of an injunction. That writ does not issue as a matter of course in a mere technical case; but there must be an emergency or necessity requiring it to issue in order that some great and irreparable injury or mischief may be prevented. No such injury will result if no injunction issues in this case; while it is manifest that great injury and inconvenience will be occasioned by its issue. The business of the companies and of the people is proceeding in its usual and uniform course. The act here sought to be enforced attempts to introduce an entirely new and extraordinary principle in regard to railroad property; a principle heretofore existing only in the minds of communists and internationals, and one which, if successfully established, will create an entire revolution in that species of property, and shake to their foundations all investments in railroad securities. There is now pending in this court a writ of quo warranto against this company designed to try the validity of this act, and that suit is at issue. There is also a case standing for argument at this term, on appeal, involving the validity of the act. And it is well known to this court that the same question has already gone to the supreme court of the United States from the circuit court of the United States for the western district of Wisconsin. Under these circumstances there would seem to be no necessity to disturb, by preliminary injunction, the business of transportation of this state and the vast interests connected therewith, before the final judgment of this court is pronounced upon the validity *496 of the law. Potter v. Schenck, 3 Fish., 182; 3 Fish., 315; Smith v. Lockwood, 13 Barb., 219;Mayor, etc., v. Thorne, 7 Paige, 264; Stroebe v. Fehl, 22 Wis., 347.

E. The act here sought to be enforced (ch. 273, Laws of 1874), so far as it attempts to fix the rates of compensation to be charged by the defendant company for the transportation of freight and passengers, is void, because it interferes with defendant's rights of property, in contravention of sec. 13, art I of the constitution of this state, and of article 5 of the amendments to the federal constitution. The right to control one's property and fix the price for its use, is an attribute of ownership, and the right to determine the compensation for which one will render his personal services and incur risks in transacting the business of another, is a personal right necessary to freedom. A pretended law which ignores these rights is unconstitutional and void. 1. The shareholders of this company are the absolute owners of the railroad and of all the property of the company. More than ninety-nine hundredths of all the grounds of the company, of every description, are acquired by negotiation and purchase, and the title in fee simple conveyed to the company by warranty deed. The remaining hundredth part is generally acquired by purchase after proceedings to condemn have been instituted, the commissioners only naming the amount which the company must pay; and the company taking the title in fee simple by deed. Hardly any of these grounds are held by judgment entered in proceedings for acquiring land by the exercise of the right of eminent domain. All lands, however acquired, are paid for wholly by the company. The road is constructed by the company, and at its sole expense. All the other property, of every description, used in operating the road, is purchased and paid for by the company. It would seem to need no argument or authority to show that the ownership of the road and property is in the company or its shareholders, and not in the state. A. & A., §§ 40, 31; Whiting v. S. & F. R. R. Co., 25 Wis., 167; *497 People v. Salem, 20 Mich., 477, 478; People v. Batchellor, 53 N. Y., 140;Donnaher v. The State, 8 Sm. & M., 649, 661; Trustees v. A. & R. R. R., 3 Hill, 570; Ohio etc. R. R. v. Ridge, 5 Blackf., 78; Bonaparte v. Camden & Amboy R. R., 1 Bald. C. C., 205, 222; Dearborn v. B. C. & M. R. R., 4 Fost., 179; Tinsman v. B. & D. R. R. Co., 2 Dutch., 148; 1 Redf. on R. W., 52. 2. This act takes our property by depriving us of its beneficial use and enjoyment. Before the passage of the act we were entitled, as owners, to fix the compensation to be paid us for the transportation of freight and passengers over our road. “That right is an attribute of ownership.” State Freight Tax, 15 Wall., 232. The only value of a railroad to its owners is the right to operate it so as to make what is commonly known as net earnings. By operating this road in accordance with the scale of prices fixed by the company itself in 1873, the total net revenue applicable to interest and dividends is less than thirty per cent. of the gross earnings. This act fixes the rates nearly thirty per cent. below those rates, so that, if it is complied with, the same amount of business done by the company during the past year will yield no net income. And as the net income or revenue constitutes the sole profit and measure of value of the road, it is plain that if the act is sustained, and retained as the permanent policy of the state, the value of the road is entirely destroyed and lost both to the bond and stockholder. It is plain, therefore, that the law not only takes but confiscates the property of the company. Pumpelly v. Green Bay Co., 13 Wall., 166. 3. The legislative right to regulate the charges of railroad companies cannot be sustained on the ground that the state has empowered the companies to exercise its right of eminent domain. That right may be conferred upon an individual as well as upon a corporation. This has been done in England, and in many of the states--as in Pennsylvania to enable the owner of mineral lands to reach them across the lands of another. By the exercise of this power, A. appropriates the land of B., and is thereby enabled to bring his coals to market, and derives an income from his *498 otherwise dormant capital. But does this grant to A. give the state the right to fix the price of the product? A private corporation may be empowered to exercise the right of eminent domain to obtain a way along which to lay pipe for the transportation of oil to a railroad or navigable water. West Va. Trans. Co. v. Volcanic Oil & Coal Co., 5 West Va., 382. But could the state fix the price of the oil? Counsel criticised the opinion in R. R. Co. v. Chappell, 1 Rice (S. C.), 383; a remark of Chancellor WALWORTH in Beekman v. S. & S. R. R. Co., 3 Paige, 74; a dictum of Justice WOODBURY in West River Bridge Co. v. Dix, 6 How. (U. S.), 546; and a remark of DIXON, C. J., in 25 Wis., 196; and he contended that the power of eminent domain may be exercised whenever, in the judgment of the legislature, the public interest will be in any way promoted by the taking of private property, whether the improvement intended to be secured thereby is to be made by the state or by private parties. 2 Kent, 260; 3 Paige, 73; Cooley's Con. Lim., 530-536. He likewise distinguished as to the right of the state to fix the tolls of a ferry or a bridge, which rests upon the fact that the stream over which the bridge is built, or across which the ferry is maintained, is the property of the state, of which, unless prohibited by its contract, the state may make such disposition as it pleases. 4. The right of the legislature to prescribe the charges for carriage on railroads cannot be maintained on the ground that such roads are public highways. That a railroad is a highway in a certain sense, is not disputed; that it is not a highway in the ordinary sense of that word, is equally certain. It is a great thoroughfare over which great numbers of persons and great quantities of property are transported in cars by the railroad company. But it is not open to the public, owned by the state, or in any manner controlled, managed or used as common highways are. Its ownership is exclusively by the company; and they have a right to operate and control it in their own way, subject to such police and other regulations as the state may lawfully make in respect *499 to any other property owned by any citizen of the state. The legislature of this state treats railroads as property, not as common highways. They have always been subject to taxation; and the same legislature which passed the act here in question, raised the tax on railroads, so that the amount to be paid this year is nearly half a million dollars. The absurdity of attempting to treat railroads as highways of the common character is illustrated by sec. 31, ch. 119, Laws of 1872, “in relation to railroads,” which forbids any person, under a penalty, to ride, drive or walk on such roads. See the subject discussed in 53 N. Y., 140. 5. Sec. 1, art. XI of the state constitution, empowering the legislature to alter or repeal all general laws or special acts enacted under the provisions of that section, does not authorize the enactment of a law establishing rates to be charged for transportation of freight and passengers. (1) What are corporate franchises or privileges? A corporation is an artificial being, created by the legislature, and clothed by it with certain franchises or privileges; among which are indefinite existence, perpetual succession, the franchise to transact business in its corporate name, and the franchise to transact the particular business for which it was created. “Many individuals desire to associate together in a work requiring a large amount of capital, and they prefer to act and conduct such business in an artificial name, to purchase and hold property by that name, and to issue certificates of stock to the owners of such property, according to the amount of capital each individual has invested in the enterprise. The sole object of those who invest their capital in such business is private gain or emolument. The state grants this privilege, and this is the franchise of the corporation. It is simply a grant of authority from the state to its citizens to conduct certain specified business by an artificial or corporate name.” These are franchises, which the state may alter or repeal; and when they are repealed, the parties who form the corporation will own the corporate property as before *500 the repeal, and may manage, operate and enjoy it as tenants in common. Bacon v. Robertson, 18 How. (U. S.), 480. (2) What was the object to be gained by inserting this provision in the constitution? The law had been settled, that a charter of a private corporation was a contract with the state, irrepealable and unalterable by subsequent legislation. This constitutional provision was designed to bring such a charter under the control of the legislature, the same as all other acts of the legislature. It was not intended to give the legislature any control over the property of individuals or corporations, not otherwise possessed, but simply to enable it to deal with such charters as it could with any other law passed by a prior legislature. Without this reservation of power, laws that might have been passed affecting individuals carrying on a particular business, could not have been passed in respect to a corporation. Under this reservation the legislature has the same power over corporations and their business that it has over individuals, and nothing more. (3) While corporate franchises may be said to be a species of property, and are of value, they are entirely distinct from what is ordinarily understood by the property of the corporation or of the shareholders. No modification or repeal of the corporate franchises under which corporators have purchased and hold property, can impair any estate or vested right of the corporators in such property. The state cannot recall any more rights or privileges than it has granted. Whatever other rights the corporation has acquired are as inviolate as those of natural citizens. Counsel further argued, at length, that the building and operating of a railroad, and the receiving of pay for the carriage of persons and property thereon, are acts which may be performed by any natural person of sufficient means and ability, and do not require any grant of authority from the legislature (Bank v. Edgerton, 30 Vt., 182; opinion of ALLEN, J., in Beardley v. Ontario Bank, 31 Barb., 625; Coe v. C. P. & I. R. R. Co., 10 Ohio St., 372; 2 Redf. on R. W., 517, 570); that an individual might purchase, own and operate all the *501 railroads now built, and charge for the transportation of freight and passengers, without interference or control of the govern ment, except that his charges must be reasonable; and that the constitutional reservation here in question gives the legislature no power to interfere with such property, or to prescribe the compensation to be made for its use. (4) This reserved power only gives the legislature power to alter such things as are contained in the charter, and there is nothing to alter in defendant's charter, as to rates. The power to amend is not reserved, but only the power to alter; and an alteration must be of something already in the charter. The charters of railroad companies in this state expressly confer on the boards of directors the power to regulate tolls, and to charge such sums as they may from time to time think reasonable. There is nothing in them fixing or prescribing the rates; and therefore ch. 273, fixing rates, is not an alteration of anything in the charter. (5) If this reserved power gives the right to fix a tariff of rates for railroads, it reaches to all other corporations of the state: to fire, marine and life insurance companies, to gas, lumber and brewing companies, to newspaper and hotel companies, and to manufacturing and mercantile companies of every kind; and it empowers the legislature to fix the price at which their services must be rendered, and their products disposed of. (6) It is well settled that this power of alteration, whether reserved in the charter itself, or by a general law, or by the constitution, is not an arbitrary and unlimited power. As showing the existence and nature of the limitations to which this power is subject, counsel cited Comm. v. Essex Co., 13 Gray, 253; Comm'rs v. Holyoke Co., 104 Mass., 451;Allen v. McKeen, 1 Sum., 276; Miller v. The State, 15 Wall., 478, 498; 21 Grat., 593; Miller v. N. Y. & E. R. R., 21 Barb., 513; Comm. v. Canal Co., 66 Pa. St., 41; Cooley's Con. Lim., 577-8; Zabriskie v. R. R. Co., 3 C. E. Green, 180; O. & L. R. R. v. Veazie, 39 Me., 581;City of Erie v. Erie Canal Co.,59 Pa. St., 174.

**21 F. Ch. 273, Laws of 1874, is void, because it is in violation *502 of that principle of constitutional law which prohibits unequal and partial legislation upon general subjects. It restricts certain corporations by name to a certain fixed price, certain others by name to another specified price, and allows others to charge another price, for performing the same services. The pretended classification is entirely arbitrary, and rests upon no principle or recognized basis. Non constat but that the roads allowed to charge the highest price are receiving the greatest income per mile. This is mere class legislation, contrary to the fundamental principles of our government, and is invalid. Cooley's Con. Lim., 389-394; Wally's Heirs v. Kennedy, 2 Yerg., 554; Durham v. Lewiston, 4 Greenl., 140; Holden v. James, 11 Mass., 396; Piquet, Appellant, 5 Pick., 65; Budd v. The State, 3 Humph., 483; Durkee v. City of Janesville, 28 Wis., 464; Bull v. Conroe, 13 Id., 238-244.

G. The act in question is also in violation of the seventh subdivision of the amendment to the state constitution, which prohibits special legislation “for granting corporate powers or privileges, except to cities.”

H. Said ch. 273 was repealed by the “act in relation to railroads” (ch. 341), passed and approved on the next day, the provisions of the latter act in respect to railroad charges being inconsistent with those of the former.”

A. As to the question of jurisdiction.

1. The supreme court of this state has original jurisdiction in equity, to the extent of issuing writs of injunction to restrain the commission of unlawful and injurious acts, under sec. 3, art. VII of the constitution. Att'y Gen'l v. Blossom, 1 Wis., 317; In re Booth, 3 Id., 1, 50, 70;Ex parte Booth, Id., 148; In re Booth & Rycraft, Id., 157, 176, 177, 208; Bagnall v. Ableman, 4 Id., 163;Att'y Gen'l v. Barstow, Id., 567;Att'y Gen'l v. Messmore, 14 Id., 115; May v. Keep, 1 Chand., 285. (Counsel also quoted from the constitutions of Alabama, *503 Arkansas, California, Florida and Missouri, the clauses referring to the jurisdiction of the supreme courts of those states, and cited the following decisions relating thereto: Davis v. T. C. & R. R. R. Co., 4 Stew. & Port., 421;Ex parte Simonton, 9 Port., 383; 1 Ala., 98; Murray v. Ayers, 1 Ala., 323; State v. Porter, 1 Ala. (N. S.), 19 Id., 561; 24 Id., 91; 40 Id., 118; State v. Johnson, 26 Ark., 281;Ex parte Ellis, 11 Cal., 222; Tyler v. Houghton, 25 Id., 26; State v. Johnson, 13 Fla., 33;State v. Board of State Canvassers, Id., 55: Rector v. Price, 1 Mo., 198; State v. Merry, 3 Id., 278; State ex rel. Att'y Gen'l v. Vail, 53 Id., 97, 107).

2. Courts of equity, both in England and in this country, have jurisdiction to restrain by injunction a corporation from exceeding its corporate powers. If the exercise of the usurped power causes special injury to the property or rights of an individual, he can maintain a suit in equity to enjoin the exercise of such power. A corporation constructing works beyond what is necessary for the purposes of the incorporation and contemplated by the charter, will be restrained by injunction. Newark Pl. R. & Ferry Co. v. Elmer, 1 Stockt., 754. Chancery will interfere to prevent a disposition of the property of a corporation for other than corporate purposes, upon a proper case made out. Kean v. Johnson, 1 Stockt., 401. So a corporation can be restrained from issuing shares for the purpose of creating votes to influence a coming election (Fraser v. Whalley, 2 Hem. & Mil., 10), or from paying the expenses of an application to parliament for an act authorizing an extension of the line. Vance v. E. L. R. Co., 3 K. & J., 50. Where an agreement made between two railway companies contains clauses which are beyond the powers of the directors of one of the companies, and clauses for referring to arbitration all disputes arising under such agreement, equity will restrain both companies from proceeding to arbitration, at the suit of a shareholder in the company which has no power to make such agreement. Maunsell v. Midland G. W. R. R. Co. of Ireland, 1 Hem. & Mil., 130; Joyce on Inj., *504 798. A single shareholder of a railway company may obtain an injunction to restrain it from performing an act beyond its legal power. Charlton v. Newcastle etc. R. R. Co., 5 Jur. (N. S.), 1096; Joyce on Inj., 789. A company will be restrained from entering into an agreement contrary to the policy of its charter, at the suit of any shareholder. Simpson v. Denison, 10 Hare, 51. See also Coleman v. Eastern Counties R'y Co., 10 Beav., 1; Carlisle v. S. E. R'y Co., 1 MacN. & G., 689; 1 H. & T., 366. Cases almost without number may be found showing that the jurisdiction of courts of equity is almost constantly exercised in restraining corporations, and especially railway companies, from exceeding the powers conferred by their charters, and from committing unauthorized acts, to the injury of the property or rights of individuals or of other corporations. See the cases in 2 Redf. on R. W., 307-359.

**22 It may be claimed that where the unlawful act affects the public generally, without working special injury to individuals, courts of equity will not entertain jurisdiction, but will leave the public to its remedy at law by information to forfeit the charter. Such a claim is not well founded. According to Chancellor KENT, corporations are created because they are supposed to be beneficial to the public. If they subserve public interests when acting within the scope of the powers granted to them, and work a public injury only when acting beyond that scope, it is obvious that while a forfeiture of the granted powers might possibly operate to remedy the injuries resulting from usurped powers, it would also work a public injury to the full extent that a proper exercise of the granted powers would be beneficial. It would be necessary to totally destroy the business of a corporation in the proper conduct of which the public is beneficially interested, in order to prevent a usurpation of powers not conferred on it by law. To forfeit the charters of the railway companies at bar, and to stay the operation of the railways they represent, would work a greater injury to the public than any which it suffers from the exactions *505 prohibited by the act here sought to be enforced. Surely it will not be insisted that the remedy at law is adequate. And there is no reason why the unlawful acts of a corporation which are so general in their effect as to reach and injure the whole people of a state, should not be stayed by injunction, as well as those which affect only one or a limited number of persons. Nor do the provisions of ch. 273, Laws of 1874, by which suits may be brought to recover penalties, furnish any adequate remedy. They lead to a multiplicity of small suits, which, while expensive and harassing, do not accomplish salutary results. And this brings the case within a well recognized rule of equity jurisprudence. Jurisdiction has always been entertained in equity, where it was apprehended that a multitude of suits would be brought, all depending upon a similar state of facts and the settlement of one principle of law.

The case of The Att'y Gen'l v. Utica Ins. Co., 2 Johns. Ch., 371, is relied upon by defendants. In that case a very narrow and limited view of the jurisdiction of courts of equity was taken. The chancellor says: “It is an extremely rare case, and may be considered, if it ever happens, an anomaly, for a court of equity to interfere at all, and much less preliminarily, by injunction to put down a public nuisance which did not violate the rights of property but only contravened the general policy.” And, reasoning by analogy, he inferred that if a court of equity would not entertain jurisdiction to enjoin the creation of a nuisance which injuriously affected the public right, but which was not a purpresture, it should not restrain corporations from violating their charters when such violations affected the public only. Such may have been the rule as to nuisances in 1817, when that case was decided; but it is now well settled that a public nuisance is ground for the interference of a court of equity at the suit of the attorney general in behalf of the public, when individual rights of property are not affected, or their violation not complained of. *506 Att'y Gen'l v. Metropolitan Board of Works, 1 Hem. & Mil., 298; Att'y Gen'l v. Conservators, etc., Id., 1; Kerr on Inj., 334-6. And the jurisdiction in such cases does not in any way depend upon the nuisance being also a purpresture. A purpresture might not be a nuisance, but it could be restrained by injunction because it was an encroachment on the soil of the king; and a nuisance, whether a purpresture or not, could be enjoined at the suit of the attorney general, if it injuriously affected a public right. People v. Vanderbilt, 26 N. Y., 287, 293; High on Inj., 519-21; Hilliard on Inj., 273 et seq. The rule as to enjoining public nuisances being the reverse of what Chancellor KENT assumed it to be, the conclusion, by analogy, as to restraining corporations from violating their charters to the public injury, must also be the reverse of that which he reached. It was also remarked by the chancellor, that there were “no particular individuals affected or disturbed in the enjoyment of their private rights” by the unauthorized acts of the defendant bank in that case. But in the case at bar the individual rights of all who use the railroads of the state are injuriously affected.”

**23 The general grounds upon which courts of equity will interfere by injunction in the case of railway companies to keep them within their charter powers, is fully stated by Lord COTTENHAM, Chancellor, in River Dun Nav. Co. v. North Midland R'y Co., 1 Eng. R'y Cas., 135. He there concurred with Lord ELDON (Agar v. The Regent's Canal Co., Cooper, 77), in holding that the jurisdiction of chancery is to be exercised “for the purpose of keeping these companies within the powers which the acts gave them;” and he asserted that this was “a most wholesome exercise of the jurisdiction, because, great as the powers necessarily are to enable the companies to carry into effect works of this magnitude, it would be most prejudicial to the interests of all persons with whose property they interfere, if there was not a jurisdiction continually open and ready to exercise its power for the purpose of keeping them within that *507 limit which the legislature has thought proper to prescribe.” This was said in a case where a railway company attempted to take the land of the complainants; but the reason for the jurisdiction is quite as strong where the money of all persons who use the railways of the state is unlawfully taken from them. “The rule laid down by Lord Chancellor COTTENHAM and repeated in several cases, that it is the duty of a court of equity to 'adapt its practice and course of proceeding, 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 an adherence to the forms and rules established under very different circumstances, decline to administer justice, and to enforce rights for which there is no other remedy,' is certainly worthy of the ablest, the wisest and best judges who ever administered the law of England or America.” 2 Redf. on R. W., 310.

The argument that there is a remedy at law is answered in several English cases, as follows: The information in the nature of quo warranto to forfeit the charter of a corporation is in the nature of punishment, and the proceeding was formerly regarded as strictly criminal, and is still quasi criminal. But the remedy by injunction is for the prevention of injury, and not for punishment. As argued by Sir Samuel Rumley in Att'y Gen'l v. Cleaver, 18 Ves., 214, “the ground of the application it not that the act is a crime, but that it occasions irreparable injury to several persons. The defendants, in order to succeed, must establish the principle that because the act is a crime it is entitled to favor and protection in a court of equity.”

The following cases are cited in support of the propositions here advanced: Att'y Gen'l v. Forbes, 2 Myl. & Cr., 123; Box v. Allen, 1 Dick., 49;Kerrison v. Sparrow, Cooper, 305; Att'y Gen'l v. Johnson, 2 Wilson C. C., 87; Att'y Gen'l v. Nichol, 16 Ves., 338; Att'y Gen'l v. Eastern Cos. R'y Co., 3 Eng. R'y Cas., 337; Att'y Gen'l v. Cambridge Consumers' Gas Co., 4 Ch. App. *508 Cas., 71; Mayor etc. of Liverpool v. Chorley Water Works Co., 2 DeG., MacN. & G., 860; Att'y Gen'l v. Railway Co., 3 Ch. App. Cas., 100; Att'y Gen'l v. Royal College of Physicians, 1 J. & H., 561; Att'y Gen'l v. Luton Local Board, 2 Jur. (N. S.), 180; Att'y Gen'l v. Guardians of the Poor, 13 Jur., 669; People v. New York, 32 Barb., 102; Davis v. The Mayor, 2 Duer, 663;Att'y Gen'l v. Salem, 103 Mass., 138;Att'y Gen'l v. Tudor Ice Co., 104 Id., 240; Doolittle v. Sup'rs, 18 N. Y., 155;Buck Mountain Coal Co. v. Lehigh Coal & Nav. Co.,50 Pa. St., 91. It is to be collected from all these cases, that where the exercise of powers and privileges not granted by law to a corporation works a public injury, equity, at the suit of the attorney general, will restrain the repetition of such acts, but will not interfere at the suit of the attorney general where only private interests or property are affected; and that in these latter cases the writ is denied, not because the court has no jurisdiction, but because no proper case is made out for its exercise.

**24 Public corporations, more than private ones, are held to be under the supervision and control of the court. That railroads are public works, and railway companies quasi public companies, in the sense that they are created to promote great public interests, and are hence under the control and supervision of the state, is abundantly established by authority. Bonaparte v. C. & A. R. R. Co., 1 Baldw., 223; Jarden v. P. W. & B. R'y Co., 3 Whart., 506-7; Whiting v. S. & F. R. R. Co., 25 Wis., 181-2; Olcott v. The Supervisors, 16 Wall., 694. But if such companies are to be regarded as strictly private, still, by the later authorities, the doctrine is well established that courts of equity may keep them within their powers by injunction. And, as in arresting the creation or continuance of nuisances, if private rights alone are infringed, the action is brought by the individuals injured; if the public rights are infringed, the action is by the attorney general in behalf of the whole people. Att'y Gen'l v. Great N. R'y Co., 1 Drewry & Smale, 154; Hare v. London & N. W. R. R. Co., 2 Johns. & H., 109; Stockpor ... *509 Water Works v. Mayor of Manchester, 9 Jur. (N. S.), 266; Kerr on Inj., 543, note 1; Ware v. Regent's Canal Co., 3 De Gex & J., 228. In the last case it is held that, to support an information, no substantial damage or definite injury to the public need be shown. It is enough that the company has not strictly followed, or is about to transgress, the powers vested in it by the legislature.

If there could be any doubt, upon these authorities, whether this is a proper case for the exercise of chancery powers, that doubt is removed by sec. 13, ch. 148, R. S., which expressly authorizes an injunction at the suit of the attorney general in such cases. It is claimed, however, that the injunction authorized by this statute can be granted only by the circuit court, because only that court is named. This is the precise question which has so often arisen in the federal courts with reference to enforcing state laws. The state constitution grants to this court power to issue the writ of injunction; and the grant is without limit. It is as broad as the existence of chancery power for that purpose. In respect to the possession of this power the supreme court of this state and the federal courts are on precisely the same footing. It is held that a state law extending the equity jurisdiction of the state courts over a particular subject, and making no reference to the federal courts, operates to extend in like manner the jurisdiction of the federal courts within that state (Bayerque v. Cohen, 1 McAl., 113), and that a state law which confers exclusive jurisdiction of a particular subject on the state courts cannot prevent the United States courts sitting within the state from taking the same jurisdiction. Parsons v Lyman, 32 Con., 566; Lorman v. Clark, 2 McLean, 568. The reasoning in the latter case is strictly applicable to the case at bar. And it would not be competent for the legislature, if such had been its intention, to confer power in the matter of injunctions upon any court exclusive of the supreme court, because this court, by the constitution, has jurisdiction of that remedy concurrent with the circuit courts *510 Clark v. Smith, 13 Peters, 195; Ex parte Biddle, 2 Mass., 472; Paine v. Wright, 6 McLean, 395; Grant v. Hamilton, 3 Id., 100; Bennett v. Boggs, 1 Baldw., 60; Livingston v. Moore, Id., 424; Parsons v. Lyman, 32 Conn., 566; 5 Abb. Nat. Dig., 65, 66

**25 B. As to the validity of ch. 273, Laws of 1874.

The power reserved to the legislature by sec. 1, art. XI of the constitution of this state, to alter or repeal, at any time after their passage, all general laws and special acts enacted under the provisions of that section, is, by its terms, an unlimited power.

The existence, powers and capacities of a corporation, and its mode of exercising them, must depend upon the law of its creation. The exercise of the corporate franchise, being restrictive of individual rights, cannot be extended beyond the letter and spirit of the act of incorporation. Beaty v. Lessee of Knowler, 4 Pet., 168; Comm'rs of Inland Fisheries v. Holyoke W. P. Co., 104 Mass., 449; Charles River Bridge v. Warren Bridge, 11 Pet., 420, 544, 548; Perrine v. C. & D. Canal Co., 9 How. (U. S.), 172, 192; Richmond, F. & P. R. R. Co. v. Louisa R. R. Co., 13 Id., 71; Cleaveland v. Norton, 6 Cush., 383; Boston v. Richardson, 13 Allen, 146. Corporations have no right to charge toll on freight, except as that right is granted by their charters. Beaty v. Trustee of Knowler, 4 Pet., 168; Perrine v. C. & D. Canal Co., 9 How. (U. S.), 172; Thorpe v. R. & B. R. R. Co., 27 Vt., 146; Boston & L. R. R. Corp. v. Salem & L. R. R. Co., 2 Gray, 27; Comm'rs, etc., v. Holyoke W. P. Co., 104 Mass., 457;Erie & N. E. R. R. Co. v. Casey,26 Pa. St., 307.

There is no limitation on the power of the legislature to alter the charter of a corporation, where that power is reserved without any words of limitation. The legislative discretion in that respect cannot be controlled by the courts. Pratt v. Brown, 3 Wis., 611; Nazro v. Merchants' Mut. Ins. Co., 14 Id., 295; Chapin v. Crusen, 31 Id., 209; McLaren v. Pennington, 1 Paige, 102; Perrin v. Oliver, 1 Minn., 202; *511 Penn. College Cases, 13 Wall., 190; Oliver Lee's Bank, 21 N. Y., 9; Sherman v. Smith, 1 Black, 592; Tomlinson v. Jessup, 15 Wall., 454; Miller v. The State, Id., 478; Holyoke Co. v. Lyman, Id., 516; Olcott v. The Supervisors, 16 Id., 678.

The limitation of charges in no way interferes with interstate commerce. State Freight Tax, 15 Wall., 277; State Tax on Railway Gross Receipts, Id., 284.

Bondholders and creditors have no greater rights than the corporation itself. Bronson v. Kinzie, 1 How. (U. S.), 311; McCracken v. Hayward, 2 Id., 608; Curran v. Arkansas, 15 Id., 305; Hawthorne v. Calef, 2 Wall., 10; Tomlinson v. Jessup, 15 Id., 458; Mumma v. Potomac Co., 8 Pet., 281; Root v. Godard, 3 McLean, 103; Root v. Wallace, 4 McLean, 8; Read v. Frankfort Bank, 23 Me., 318; Albany Northern R. R. Co. v. Brownell, 24 N. Y., 345;S. & S. R. R. Co. v. Thatcher, 11 N. Y., 102; Buff. & N. Y. City R. R. Co. v. Dudley, 14 Id., 336. The reserved power of the legislature is not affected by the fact that its exercise may incidentally impair, or even destroy, the value of the securities held by the creditors of the corporation. Thus, where the state has not granted any exclusive right to one corporation, it impairs no contract by incorporating a second one which injures or destroys the first. Charles River Bridge v. Warren Bridge, 11 Pet., 420; Turnpike Co. v. State, 3 Wall., 210; Richmond, F. & P. R. R. Co. v. Louisa R. R. Co., 13 How. (U. S.), 71; Boston & L. R. R. Co. v. Salem & L. R. R. Co., 2 Gray, 1, 35; Springfield v. Conn. River R. R. Co., 4 Cush., 63; Central Bridge Corp. v. Lowell, 4 Gray, 474.