Argument for Plaintiff in Error.

The case of Providence Bank v. Billings, 4 Pet. 514, was a contention, that a state bank chartered by a legislature was not subject to taxation. There was no provision of any kind in the charter upon that subject, and it was claimed that such an institution could not be taxed on general principles.

Charles River Bridge v. Warren Bridge, 11 Pet. 419, was a contention that the legislature, having chartered one bridge, was not authorized to charter another over Charles River, between Boston and Ca.nbridge, because it would injure the property interests of the first. There was no claim that the first charter contained any such restriction, or any affirmative grant that it should have a monopoly of the business.

In Minot v. Philadelphia, Wilmington & Baltimore Railroad, 18 Wall. 206, the court held, that the provision of the charter, requiring the railroad company to pay annually into the treasury of the State a tax of one quarter of one per cent on its capital stock, without any words indicating the intent of the legislature, that such payment should be in lieu of all other taxation, and that no further or different tax should be subsequently levied for any purpose, was not sufficient to show a contract binding the State not to levy any other taxes for any other purpose.

In Bailey v. Magwire, 22 Wall. 215, the Missouri Pacific Railroad was exempted from taxation until completed, and it was provided that after its completion, it should be subject to taxation at the rate assessed by the State on other real and personal property of like value. The contention was that under this statute only a state tax could be levied upon the road; but the court held that the provision had no such effect, that it could be taxed as other property for all purposes.

In Fertilizing Company v. Hyde Park, 97 U. S. 659, the majority of the court held, that the charter of a company authorized to carry on business at a certain place did not allow it to carry on and continue that business after it became a nuisance.

In Newton v. Commissioners, 100 U. S. 548, this court held, that the term "permanently established," used in statutes of Western States, relating to establishing county seats, did not

Argument for Plaintiff in Error.

mean that the county seat where it was so "permanently established" should forever remain, but only that it was permanently instead of temporarily established as provided in said statutes.

In no one of these cases, unless it be that of the Fertilizing Company in 97 U. S., was there any affirmative grant of power to the company by. the legislature in question. They were cases in which it was claimed that by inference or construction such affirmative grant or contract was implied, and in the case of the Fertilizing Company, Mr. Justice Swayne, on page 666, states the rule as follows: "The rule of construction in this class of cases is that it shall be most strongly against the corporation. Every reasonable doubt is to be resolved adversely to the corporation. Nothing is to be taken as conceded except what is given in unmistakable terms or by an implication equally clear. The affirmative must be shown. Silence is negation and doubt is fatal to the claim."

Applying this most stringent rule of construction to this charter, and it must still be held that it affirmatively creates a contract between the Territory and the company.

Second The judgment of the court violates the natural right which belongs to every one to fix the price of his services and of his property or its use. Under our form of constitutional government it has ever been held to be the unquestionable right of every freeman to have a perfect and entire property in his goods and estate. 1 Kent Com. 613. As was said by Lord Ellenborough in Aldnut v. Inglis, 12 East, 527, in speaking of the right of an owner to charge an unreasonable amount for the use of his warehouse: "There is no doubt that the general principle is favored, both in law and justice, that every man may fix what price he pleases upon his own property or the use of it."

In the case of The State Freight Tax, 15 Wall, 232, 277, 278, Mr. Justice Strong, in delivering the opinion of the court, says: "We concede the right and power . . . of the owners of artificial highways, whether such owners be the State or grantees of franchises from the State, to exact what they please for the use of their ways. That right is an attri

Argument for Plaintiff in Error.

bute of ownership.

The right to make terms for the use of the roadway is in the grantee of the franchises, not in the grantor."

The State has no more right to assume the control or management of one of these classes of property than it has of the other, and the right to fix the price of the use of each, inheres in the owner thereof the same in one case as the other, except as above stated, and within the bounds of reasonable compensation, the right of the owner to fix the charges for the use of property clothed by law with a public interest cannot be questioned any more than his right to property not so clothed.

By the authorities cited in the opinion of the Chief Justice in Munn v. Illinois, 94 U. S., it appears, that the only limitation upon the right of the owner of this sort of property to make his own rates was, that he should charge only a reasonable price for the use of such property, and no claim was made that the legislature had a right to fix such charges. But see Aldnut v. Inglis, 12 East, 527; Bolt v. Štennett, 8 T. R.

606.

The Granger Cases, so called, reported in 94 U. S., arose on statutes passed in Illinois in 1873, and in Wisconsin, Iowa and Minnesota in 1874. The Wisconsin and Iowa acts were statutes fixing a maximum tariff. The Illinois and Minnesota statutes provided that commissioners should make schedules which should be prima facie reasonable rates.

The particular questions involved in the present record aside from the general question of power of the legislature, were not in any of the cases then before the court, except that of Chicago, Milwaukee &c. Railroad Company v. Ackley, which, it would appear from the opinion, received but slight attention from the court.

Fully admitting the right of the legislature to take such proper action as may be necessary to secure to the people reasonable charges for transportation thereon, we deny its right to arbitrarily and finally fix or determine such charges by positive statute, and most respectfully ask this court to again review the decisions made in the cases of Munn, Peik and Ackley in this respect.

Argument for Plaintiff in Error.

That the police power of the State, founded upon the maxim sic utere tuo ut alienum non laedas, is proper authority for statutes regulating the management, operation and control of a railroad so far as it affects the protection of the lives, limbs, comfort, safety and quiet of all persons, and the protection of all property in the State, is admitted.

But we deny that this power gives to the legislature the right to limit or fix the tolls or charges for transportation which the company would otherwise have the right to make.

Thorpe v. Rutland & Burlington Railroad Co., 27 Vermont, 140; S. C. 62 Am. Dec. 625; Hale's De Portibus Maris ; Cooley's Const. Lim. 88, 91; People v. Draper, 15 N. Y. 532; Wynehamer v. People, 13 N. Y. 378; Aldnut v. Inglis, ubi sup.; Tiedman's Limitation of Police Powers, 231; Parker v. Metropolitan Railway, 109 Mass. 506; 1 Bl. Com. 160; Newland v. Marsh, 19 Illinois, 376; Ervine's Appeal, 16 Penn. St. 256; S. C. 55 Am. Dec. 499.

II. The court erred in holding that the schedules of rates fixed by said commission were final and conclusive as to what were lawful, equal and reasonable rates, and that they "are the only ones that are lawful, and therefore, in contemplation of law, the only ones that are equal and reasonable," instead of simply holding them as advisory and prima facie or presumptively equal, and subject to review by the court.

III. The court erred in holding that the rate fixed by said commission, which is not a fair or reasonable rate or just compensation to the owner for the service required, was a lawful rate which the owner was bound to submit to and obey, and in granting a peremptory writ of mandamus compelling the owner to transport freight over its line of railway at the rate so fixed,

IV. The court erred in holding that the State of Minnesota, since the passage by Congress of an act entitled "An Act to regulate Commerce," approved February 4, 1887, has the power to regulate, fix, or establish the tariff rates for the transportation of freight and passengers over the lines of the Chicago, Milwaukee & St. Paul Railway, it being an interstate railway engaged in interstate traffic.

Argument for Defendant in Error.

Mr. Moses E. Clapp and Mr. H. W. Childs, for defendant in error, after discussing a question concerning the jurisdiction of the court below, continued:

It remains to inquire whether the law in question, as interpreted by the Supreme Court of Minnesota, is in conflict with the Fourteenth Amendment to the Federal Constitution, and in considering this law, as interpreted by the state court we should keep in mind that, while the Supreme Court of the State held that the reasonableness of the rates as fixed by the commission, could not be the subject of judicial review, yet it did not leave the commission an irresponsible body, answerable in no case to the courts, but on the contrary limited its power to the exercise of an honest judgment.

It will relieve the discussion of this case from some embarrassment, if it is borne in mind that, in the case made by plaintiff in error to the alternative writ, no allegations are made that the enforcing the rate established by the board would so affect the earnings of the road as to impair its ability to meet any of its obligations or to seriously affect its revenues.

Neither is it claimed by plaintiff in error that it is protected by any express contract or charter exemption from legislative interference in the matter of fixing rates, the company contenting itself as above stated, with the allegation that the commission "unjustly, unreasonably and oppressively” fixed the rate, and that the establishment of such rate was a pro tanto taking of the property of the plaintiff in error.

This case then involves a determination of the question, can the legislature prescribe what is a reasonable rate for trans portation of freight and passengers by a common carrier, when unrestrained by any provision in the charter of the company?

In view of the repeated adjudications of this court sustaining the right of legislatures to establish the rates which common carriers may charge, and to declare by legislative action what are reasonable rates, we confess to some hesitation in entering upon an extended discussion of the question.

In Munn v. Illinois, 94 U. S. 113, 133, 134, in the opinion of