legislation of a restrictive character. The railroad companies had received charters granting the most liberal powers, and the constitution of the state under which the grants of power were given, contained no reservation of authority to alter or amend. Thus secure in the exercise of their prerogatives, the railroads doubtless made exactions of the people in some cases which were unjust and oppresssive. The natural law of competition in which the public reliance was at first universal, had again shown itself to be utterly insufficient for the protection of the public. At last, the time came when, for many reasons, public opinion demanded a total revision of the constitution. This was effected in 1870, and not without due regard to the transportation interests; for by the constitution railroads are declared public highways, and the duty of establishing reasonable maximum rates for railroad transportation is imposed on the legislature. Power is also conferred upon the legislature to make laws prohibitive of unjust discrimination, with the severest penalties for violations of the laws enacted. As the Illinois constitution is peculiar in these respects, we quote so much of it as relates to this subject.

It provides

First. That every railroad company doing business in the state shall maintain a public office within the limits of the state, where stock books and other important records shall be kept for public inspection.

Second. That "the rolling stock and other movable property belonging to any company shall be liable to execution and sale in the same manner as the private property of individuals.

Third. That "no railroad company shall consolidate its stock, property or franchises with any other railroad corporation using a parallel or competing line;" and in no case whatever, except upon public notice given, of at least 60 days, to all stockholders, in such manner as may be provided by law.

Fourth. That a majority of the directors of any railroad shall be citizens and residents of the state.

Fifth. That all railroads of the state 'shall be considered highways and free to all persons for the transportation of their persons and property, under such regulations as may be prescribed by law; and "that the general assembly shall, from time to time, pass laws establishing reasonable maximum rates of charges for the transportation of passengers and freight on the different railroads of the state."

Sixth, That "no corporation shall issue any stock or bonds, except for money, labor or property actually received, and applied to the purposes for which such corporation was created;" that "all stock dividends and other fictitious increase of the capital stock or indebtedness of any such corpora. tion shall be void;" and that "the capital stock of no road shall be increased

for any purpose, except upon giving 60 days' notice in such manner as may be prescribed."

Seventh, That "the general assembly shall pass laws to correct abuses and prevent unjust discrimination and extortion in the rates of freight and passenger tariffs on the different railroads in the state, and enforce such laws by adequate penalties to the extent, if necessary for that purpose, of forfeiture of property and franchises."

Eighth, That "the exercise of the right of eminent domain shall never be so construed as to prevent the taking, by the general assembly, of the property and franchises of incorporated companies already organized, and subjecting them to the public necessity the same as of individuals;" and that the "right of trial by jury shall be held inviolate in all trials of claims for compensation, when, in the exercise of said right of eminent domain, any incorporated compony shall be interested either for or against the exercise of such right."

Clothed with the ample powers thus conferred, the legislature of 1871 passed 'an act to prevent unjust discriminations and extortions in the rates to be charged by the different railroads in the state for the transportation of freight on said roads."

This law classed the roads of the state according to their earnings; made the transportation rates of 1870 the standard for freight charges; provided that no railroad corporation should charge a larger compensation for carrying freight over any distance than is charged at the same time for freight of the same class over a less distance, nor the same amount charged for a less distance; prescribed severe penalties for violations of the law; and created a board of commissioners to carry out its provisions.

This law went into effect in July, 1871. It was disregarded by the railroad corporations very generally, and various suits resulted. Finally the law came before the Supreme Court in a case of appeal, and was pronounced invalid; Chief Justice Lawrence delivering the opinion of the court.

The suit was brought by the railroad commissioners against the Chicago and Alton Railroad Company on the charge of a violation of the provisions of the law against discriminations, and the decision of the court was based on the ground that the law made no proper distinction between just and unjust discriminations, as will appear from the following quotation from the published opinion:

"The opinion of the court is, that while the legislature has an unquestionable power to prohibit unjust discrimination in railway freights, no prosecution can be maintained under the existing law until amended, because it does not prohibit unjust discrimination merely, but discrimination of any char

acter, and because it does not allow the companies to explain the reason of the discrimination, but forfeits their franchise upon an arbitrary and conclusive presumption of guilt to be drawn from the proof of an act that might be shown to be perfectly innocent. In these particulars the existing law violates the spirit of the constitution. The judgment of the circuit court ousting the appellant of its franchises, must therefore be reversed."

In May, 1873, a new law was passed; a leading characteristic being that it recognizes the principles laid down by the supreme court, namely, that railroad charges must, under the common law, be reasonable. Accordingly it prescribes what shall be prima facie evidence of extortion and unjust discrimination, and imposes upon the railway companies theburden of proof that the act complained of is just and reasonable.

It also requires the commissioners to prepare schedules of rates for the several roads, with power to change them at discretion; these rates, likewise, to be held judicially reasonable until otherwise declared by the verdict of a jury. Under its provisions the commissioners prepared schedules of rates, and have since been actively employed in enforcing the law, though without the most gratifying success. The corporations are many of them persistent in operating their roads under their own tariffs, and others, affecting a substantial compliance with the law, are seeking by various means to render it odious with the public.

The report of the commissioners for 1874 indicates confidence in the wisdom of the present policy and in the final triumph of the law over all opposition.

9. In Wisconsin.

The railway legislation of Wisconsin, while it is due in general to the same causes which have induced restrictive legislation elsewhere, was hastened, we may say pricipitated, by the impolitic and unjust action of some of the railway companies in making an increase upon their usual charges-already considered quite too high -in the autumn of 1873, when, for the first time in three years, the product of our agricultural industry had come up to the annual average.

The practical character of the law passed at the next subsequent session of the legislature is quite fully considered in another portion of this report; while its validity is ably set forth in the opinions of the Supreme Court of the state, and of the United States

District Court for the Western District of Wisconsin, both of which will be found in the Appendix hereto.

THE TEACHINGS OF ALL PAST EXPERIENCE.

From this survey of the past, the following general conclusions are unavoidable:

1. That the public character of railways is fully established.

One form of argument in high quarters against the exercise of public supervision, is embraced in the proposition that corporations have transportation to sell, and that the purchase of the article or privilege so offered for sale, like that of all other commodities in market, is at the option of the purchaser. But the condition of sale in this case, come under none of the ordinary conditions of human traffic. The original right to construct and operate railways is an emanation of sovereignty, grounded on public considerations, and having explicit reference to public as well as to private use and profit. The question of power is already substantially and fortunately settled as to our own state. The subsidiary question of the necessity and propriety of judiciously exercising that power when possessed, is equally settled in the opinion of the whole civilized world. We know of no government in Europe which has not already exercised this power-not with reference to the special ends of arbitrary government, but with the purpose of defending the people from the encroachments of consolidated wealth, manifest in the form of corporate monopoly.

2. That the consequent right, and the necessity of control are nowhere in doubt.

It appears that the right of the state to exercise supervision over railway corporations has been recognized wherever the subject has received mature consideration-that it has been asserted by chambers and parliaments in all the countries of Europe, as well as by the legislatures of this country, and that it has been sustained and confirmed by the highest courts. Such conclusions are unavoidable, having their foundation in the common law and in the very nature and relations of society.

3. That control is demanded by the public interests. This proposition is now so well established, that there can be none to dispute it. The people have rights which inhere in the

very nature of the case and are inalienable. No legislature conferred them, and none can take them away. Governments may define these rigbts, and throw around them the safeguards of law; and this much they are bound to do. They are also bound to do it

wisely and justly.

The facts which demand the intervention of public authority are enforced and multiplied by all experience and investigation, Not merely in the theory of law, but as a practical fact, railways have become public highways, and all classes of our people are as dependent upon their wholesome management as upon the wholesome management of any other public property. The assumption on the part of the advocates of non-intervention, that the public has a choice between other methods of transportation and transportation by rail, is without actual truth. If the choice exists, that choice cannot be exercised, except upon such conditions as to render the privilege nugatory. As to large masses of freight, and a considerable portion of passenger travel, rapid transit by rail is the only available alternative presented. And were the fact otherwise, it is impossible to presume, under any known axiom of good government, that interests so vast and manifold as to involve the fundamental conditions of public progress and prosperity should be surrendered to the undisputed determination of a personal discretion, based solely upon considerations of private or corporate profit.

4. That control is demanded in the interest of capital. Most assuredly, the relations of our people to capital are not to be ignored. We are not under any circumstances to overlook the grave fact that the material interests of our state are vitally dependent upon the safety and ample remuneration of future investment in railway construction. A consultation of the comparative statistics of this report will show you that the industries of Wisconsin are far more dependent upon future investment than past expenditure in this direction; and we know of no consideration of material interest or public morals which can counsel indifference to the honorable claims of capital to ample consideration for all legitimate expenditure.

Protection of capital from mismanagement.-It will not be assumed, however, that the interests of capital itself can be best. promoted by the mismanagement of railways, or by the imposition of extortionate rates, or unjust discriminations. And judicious leg