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porting persons and property a shorter distance than for a longer one, is not necessarily unreasonable nor an unjust discrimination. 1

§ 439. The judicial department of the government has the sole authority to determine between the public and the appellant what rates are reasonable, and what are unreasonable, and what discriminations are just and what are unjust.2

§ 440. The power of the general assembly to pass all such laws as are necessary to promote the health, safety, morals, good order and general welfare of the inhabitants of the state, did not authorize the passage of the act of April 7, 1871.3

8441. The counsel for the respondent submitted the following propositions and authorities, viz.: 4

§ 442. Corporations are subject to government and

Attorney General v. Birmingham and Derby Junction R. R. Co. 2 English Railway Cases, 124; Ransome's Case, 1 C. B. (N. S.) 437; Oxlade's Case, 1 C. B. (N. S.) 454; in re Caterham Ry. Co. 1 C. B. (N. S.) 410; in re Harris and the Cockermouth R. R. Co. 3 C. B. (N. S.) 692; in re Jones and Eastern Counties R. R. Co. 3 C. B. (N. S.) 718; Hozier v. Caledonian R. R. Co. Scotch Sessions Cases, 17 vol. (N. S.) 302; Strick v. Swansea Canal Co. 16 C. B. (N. S.) 245; act of 8 and 9 Vict. c. 28; in re Oxlade and N. E. R. R. Co. 15 C. B. (N. S.) 80; in re Nicholson and G. W. R. R. Co. 5 C. B. (N. S.) 366; Baxendale v. The London and S. W. R. R. Co. 1 L. R. Exch. 137.

2 Commonwealth v. Proprietors of N. B. Bridge Co. 2 Gray, 339; State v. Noyes, 47 Me. 204; Washington Bridge Co. v. State, 18 Conn. 53.

Cooley on Con. Lim. pp. 85, 86, 87; Live Stock, etc. Associa tion v. Crescent City, etc. Co. 1 Abbott Cir. Ct. R. 388, s. c. 3 Chicago Legal News, 17; Commonwealth v. Alger, 7 Cush. 84; Yates v. Milwaukee, 10 Wall. 497.


* The counsel for the people were Hon. J. H. Rowell, State's Attorney, Hon. R. M. Benjamin and Hamilton Spencer, Esq.

subordinate to legislation, precisely the same as an individual or natural person.1

§ 443. Legislative authority is a trust which the legislature cannot irrevocably delegate or abandon. It may authorize its exercise through agents of the public, but such agents must of necessity remain subject to public control.2

§ 444. This legislative authority which cannot be delegated or abandoned-which is a trust confided by the people to the legislature has the same extent and is the same unlimited power in regard to legislation which resides in the British Parliament, except where restrained by written constitutions. 3

§ 445. The prevention of unjust discrimination and

1 Providence Bank v. Billings, 4 Peters, 563; Thorp v. R. & B. R. R. Co. 27 Vermont, 145; W. River Bridge Co. v. Dix, 6 Howard, 553; Bank of Republic v. Co. of Hamilton, 21 Ill. 58.


Fletcher v. Peck, 6 Cranch, 87; Goszler v. Corporation of Georgetown, 6 Wheaton, 597; Charles River Bridge Co. v. ren Bridge Co. 11 Peters, 420; East Hartford v. Hartford Bridge Co. 10 Howard, 534; Richmond, etc. R. R. Co. v. Louisa R. R. Co. 13 Howard, 90; Piscataqua Bridge v. N. H. Bridge, 7 N. H. 35; Brewster v. Hough, 10 N. H. 138; Presbyterian Church v. City of N. Y. 5 Cowen, 538; Stuyvesant v. Mayor, etc. of N. Y. 7 Cowen, 606; Mott. v. Penn. R. R. Co. 30 Pa. St. 35; Toledo Bank v. Bond, 1 Ohio St. 659; Ohio L. Ins. and T. Co. v. Debalt, 16 Howard, 431; Cooley's Cons. Lim. 283; New Jersey v. Wilson, 7 Cranch, 164; Washington University v. Rouse, 8 Wallace, 442, 12 Wallace, 551.

» Calder v. Bull, 3 Dallas, 386; Cochrane v. VanSurlay, 20 Wend. 382; Braddec r. Brounfield, 2 Watts. and Serg. 271; Harvey v. Thomas, 10 Watts. 63: Blanchamp v. The State, 6 Blackf. 299; Doe v. Douglas, 8 Blackf. 10; Thorpe v. R. & B. R. R. Co. 27 Vt. 142; 1 Kent, Comm. 448; Cooley Const. Lim. 87; Com. monwealth v. Duane, 98 Mass. 1.

extortion comes within the legitimate exercise of the police powers of the state.1

§ 446. It cannot be presumed that the legislature intended irrevocably to part with the power of preventing by legislative enactment unjust discrimination between communities or individuals.2

$447. Railways are improved public highways, and therefore can be constructed by the aid of the right of eminent domain. Railroad companies are public agents created for the practical administration of the public property (right of way) put into their hands as such agents to be administered to subserve public interests and therefore must remain subject to public control.3

Thorpe v. R. & B. R. R. Co. 27 Vt. 150; Mayor of Baltimore v. State, 15 Maryland, 389, 5 Howard, 583; Commonwealth v. Alger, 7 Cushing, 84; People v. Mayor of N. Y. 32 Barbour, 102; Miss. R. R. Co. v. McClelland, 25 Ill. 142; G. & C. U. R. R. Co. v. Appleby, 28 Ill. 282; same v. Dill, 22 Ill. 264, 269; same v. Loomis, 13 Ill. 548, 550; I. & C. R. R. Co. v. Kercheval, 16 Ind. 85; People v. Draper, 25 Barbour, 374; Veazie v. Mayo, 45 Me. 569; Commonwealth v. Tewksbury, 11 Met. 55, 57; Dingman v. People, 51 Ill. 272.

216 Howard, 435; 4 Peters, 514; 11 Ib. 548; 25 Ill. 142; Bradley v. N. Y. & N. H. R. R. Co. 21 Conn. 294; Mohawk Bridge Co. v. U. & S. R. R. Co. 6 Paige, 554; 27 Vt. 149; 2 Redf. on Railways, 408; 2 Greenleaf's Cruse, 67.

Dyer v. Tuskaloosa Bridge Co. 2 Porter (Ala.), 303; Vattel Lib. i, Cap. 20 S. 249; Bynkershock, Lib. i, Cap. 15; Domat Book i, Tit. 8; S. I. R. R. Co. v. Davis, 2 Dev. and Bat. (N. C.) 469; Sanford v. R. R. Co. 34 Penn. St. 380; Vedder v. Fellows, 20 N. Y. 131; 1 Rice (S. C.), 398; 6 Howard (U. S.), 556; Whiting v. Sheboygan R. R. Co. 18 Am. Law Register, 165; People ex rel. v. Salem, 20 Mich. 483; The Chicago, Danville and Vincennes R. R. Co. v. Smith, at Ottawa, Ill. Jan. T. 1872; 4 Wheaton, 627.


448. Facts in the case.

449. Charter pleaded in defense; Verdict court below.

450. The statute on which the case was based.

151. Argument for the railroad.

452. Argument for the people.

453. Points not passed upon.

454. How the same might be brought in issue.

455. Legislature may prohibit unjust discrimination. 456. Such legislation consistent with railway charters. 457. English authorities cited.

458. Deductions therefrom.

459. Admission of counsel for appellant

460. Former state decisions.

461. Application of them to this case.
462. The presumption of injustice.
463. Right of the legislature reaffirmed.
464. Difficulty of its exercise.

465. Discrimination not necessarily unjust.
466. Trial by jury; Legislative control.
467. Supposable case of just discrimination.
468. Transportation reform demand stated.
469. Amendments to the statute suggested.

470. Forfeiture; In what case just and how effected.
471. English law of 1854.

472. Summing up of the case.

$ 448. The opinion of the court is as follows, viz., LAWRENCE C. J.: This record brings before us the proceedings upon an information in the nature of a quo warranto1 filed by the Railroad Commissioners of the state against the Chicago and Alton Railroad Company, under the act which went into operation July 1, 1871, entitled "An act to prevent unjust discriminations and extortions in the rates to be charged by the different railroads in this state for the transpor

For a discussion of quo warranto see chap. x, div. 1.

tation of freight on said roads." 1 The information set forth that the company, in violation of this act, had repeatedly charged and received for transporting lumber from Chicago to Lexington, a distance of one hundred and ten miles, the sum of five dollars and sixty-five cents per one thousand feet, while at the same time it had only charged for transportation of like lumber from Chicago to Bloomington, a distance of one hundred and twenty-six miles, the sum of five dollars per one thousand feet.

$449. The company, by way of defense, pleaded its charter, and alleged that the rates of toll from Chicago to Lexington were in fact reasonable, while the rates from Chicago to Bloomington were unreasonably low, and were established because of the competition, at the latter point, with the Illinois Central railroad company. To this plea the relators demurred. The demurrer was sustained, a judgment of ouster was pronounced against the company, and its franchise was declared forfeited. From this judgment the company has prosecuted an appeal to this court. The question involved in this record is the constitutionality of the act of the legislature under which the information was filed. The object of the general assembly in passing the law is indicated by its title, which we have already given.

$450. The substance of the first section of the act is, that no railroad corporation in this state shall charge a larger compensation for the transportation of freight over any distance than it is charging at the same time for freight of the same class over a less distance, nor shall it charge the same amount that it

1 For the full text of this law see Gross, vol. ii, chap. 86.

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