Year: 1874

| 10 th6 razor OF INC 1TtOH"o'


| SrR The opinion Of ChefJustice Ryan Of Wis
consin in the great cases Of the Attorney -Gencrst
versus the Chicago and Northwestern Railway
and tho Attorney General versus tho Chicago and
ST. Panl Railway, has at length been published. Tho
cases came before the Conrt q motion for an in
junction to restrain the defendants from violating
the provisions of the Potter law. The constitu.
tonality of this act il by far the most impor-
tant legal question before the country. and unfor-
tunately tho opinion Of the ChiefJustice, though
immensely voluminous, hardly handles tho subject
with the power which the gravity Of the occasion
and the splendid array OF opposing talent demand.
And as he is reported to have come by his position
on the bench for the purpose Of making this very
decision there is nothing surprising in his having
decided for the plaintiff, though he is probably right
in doing


The point in dispute is simple BY their charters
the defendant roads have the privilege Of fixing
their rates of toll both for freight and passengers.
Last March the Legislature of Michigan passed law
limiting tho amount they might charge tor the
future and imposing penalties in case OF the ex-
action of higher fares From the nature OF the suit
the exaction of penalties was not directly consid-
cred; but strong argument had been advanced.
that if the roads were limited to uDremuneratIvo
charges and at the same time forced to continue
operations rs usual their prosperity w1 practically



Or in other words. confscated. To this tho
obvious reply was made that they were under no
such constraint, and that nothing hindered them
from surrendeiing their charters and winding up
their business should they think it for their interest
so to do unless indeed, long continuance TO act
might be considered as an acceptance Oh the new
state Of things. Thus the controversy always re-
turns to the same point-wheiher not is suoh in
reference by tho State q violation of contracts
with the roads and the simplest way of treating
the matter is to look at it historically. and trace
step by step what the rights Of both parties really
are.


The basis of tho American is OF course the British
Constitution, and in Great Britain there could DO
but one side to the question, since "the pOwor anu
jurisdiction of Parliament" says Sir Edward Coke.
"is so transcendent and absolute that it cannot bo
confined either for causes or persons within any
bounds" When this Government was founded
American statesmen attempted to limit absolute
parliamentary power by means OF written c0nsti-
tuition thus removing ultimate authority one step
further off Among The most important OF the llmi-
tations imposed is the clause fOrbidding States TO
pass laws irpairing the obligation of contracts.
Soon it became necessary TO determine exactly what
the word contract" covered, and the Supreme
Court decided in the Dartmouth College
case that charter Of private las dis
tingushed from munlclpaD corpora'lQp
was contract within the meaning of the
Constitution, which, once unconditionally granted.
could never be revoked. This decision has ever
since remained unshaken and was the law when
Wisconsin became State. Clearly such situation
was not without danger. To give the Legislature
the power of binding the Commonwealth forever to
bargains which might prove oppressive or even
ruinous was trusting it very far, and accordingly
the trainers of the Wisconsin Constitution in
serted clause providing that corporations
might be formed under general laws or spe-
cal acts, and that such laws or acts might
be altered or repealed by the Legislature.
Thus the State placed itself beyond the reach OF
the Dartmouth College decision. The Constitution
of the United States construed by ChiefJustice
Marshall, imposes certain restriction ON charters
granted in a certain FORM and the people OF WScon-
sin declare that they will make charters of that
description, bnt only such as were in use before.
They thus returned to the old parliamentary basis
under which changes and repeals perfectly loyal


The controversy we'll illustrates one mischief Of
written constitutions. They tend to substitute q
legal test for public conduct instead Of the moral
code of right and wrong. Men feel that the Potter
act is iniQuitous. and therefore conclude that it
must be illegal while members Of the Legislature
fancy that they free from reproach if they are
sustained by the courts No written instrument can
provide for every emergency or guard against
every attempt at evasion, and little good
can come from efforts to strain words be-
yond their obvious meaning to meet sudden
contingencies What would be robbery in England
is robbery in Wisconsin. though it shelters it
self behind the letter Of the law. The only differ
ence Is that the American wrong is the moro hateful
Of the two because it clothes itself in the form OF
an act passed in harmony with the intent of those
instruments on which this people are bred to look
with reverence, and to which they are taught to
turn for safety.


Where resistance should be made to the Potter
law is at the polls. The ground should be- taken
| that 1t is unjust and oppressive and must DO re-
peaed that mombers who voted for it are response
| bic and must be unseated. No bench of judges is
needed to tell the world that men and nations may
steal and cheat under the forms Of law that there
are crimes for which public opinion and not tho
statute b1,s affords the remedy; but it would be
wol for the people of this country to realize that


they are responsible for their acts, and will be heia
responsible for them by their feow-ctizens and by
the world and that tEey will suffer for dishonesty
| though their legislation should be sustained by
ovcry lawyer and by every court in America.
| BROOKS ADAMS.
| Boston, Mass, Dec. II, 1874.





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