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Opinion of the Court.

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“That it therewith paid its operating expenses for the same year, amounting to twenty-two thousand five hundred and eighty-three dollars and seventy-eight cents ($22,583.78), and paid the whole residue thereof on account and in reduction of its unsecured indebtedness aforesaid and the interest thereon.

That the said year was an unusually prosperous one, and was the first year in the history of this respondent when it earned a sum equal to the amount of its operating expenses and one year's interest upon its said bonded indebtedness.

“That, induced by its gradual reduction and payment as aforesaid of its said unsecured indebtedness, the creditors of this respondent for the said unsecured indebtedness have hitherto, with the assent and at the request of this respondent, as the said interest coupons have from time to time become due, advanced the amounts thereof to the holders of said coupons, and thereupon and thereby taken the same up from such holders by way of payments for the honor and for the protection of the credit of this respondent, in order to avoid any foreclosure on the part of the holders of said bonds by reason of default in the payment of any such coupons, and that so, and not otherwise, has this respondent hitherto been able to avoid such foreclosure.

“The respondent further says, that a portion of its said railroad upon the west side of said river, about one thousand and two hundred (1200) feet in length, is upon wooden trestlework, which is now nearly ten (10) years old, and about one thousand one hundred (1100) feet in length of which is so decayed ard worn that the same must be almost entirely renewed and rebuilt within the current year 1889, if the operation of said railroad is to be continued.

“ That this respondent has no source of revenue to meet the expense of rebuilding other than its earnings.

"That, if said trestle is rebuilt of wood, the cost thereof will exceed the sum of fifteen thousand ($15,000) dollars, and if of iron or steel will exceed the sum of eighty thousand ($80,000) dollars.

“ The respondent further says, that if the order of the relators set forth in said alternative writ had been forth with and

Opinion of the Court.

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hitherto enforced, and if this respondent had received but one ($1.00) dollar per car for the service rendered during its last fiscal year aforesaid, the entire receipts from all its business in said year would have been but twenty-seven thousand two hundred and seventy-two ($27,272.00) dollars, which would have left this respondent but four thousand six hundred and eighty-eight dollars and twenty-two ($4688.22) cents wherewith to pay the residue of its unsecured indebtedness aforesaid, then exceeding twelve thousand dollars ($12,000), or to pay the sum of ten thousand and five hundred dollars ($10,500) interest accrued upon the said bonded debt, leaving nothing for extraordinary repairs, and nothing for renewals of trestles, bridges, or rails.

“That this respondent is the owner of all the railway used in conducting its said business, subject only to the lien of said mortgage.

“ That it is entitled to the possession and beneficial use thereof to the same extent as the owners of other property are entitled to the beneficial use thereof; that it has the right to fix the price for the use of its property by others, and at the rate at which it will do business for others, subject only to the qualification that the rates so fixed shall be equal and reasonable.

"That the rate of one dollar and fifty cents ($1.50) per car so fixed and collected by it as aforesaid is fair, just, equal and reasonable; that the rate of one dollar ($1.00) per car specified in said order of relators is grossly unfair, unjust, unequal and unreasonable, and beyond the jurisdiction and power of the said relators in that behalf.

“That the said recommendation of the said relators set forth in said alternative writ, by means whereof they seek to compel a reduction in the rate fixed by this respondent from one dollar and fifty cents ($1.50) per car to one dollar ($1.00) per car and a consequent loss in revenue of one-third (1) of its entire earnings, was made by said relators without notice to this respondent, and without giving it any opportunity to be heard in its own behalf, and that for that reason the said recommendation is against the common rights of American citizens and is in

Opinion of the Court.

violation of the Constitution of the United States, and is wholly void.

“And this respondent further says, that if the said order be enforced by the mandate of this court, it will take the property of this respondent against its will, without due process or any process of law, and in violation of section 1 of article 14 of the Constitution of the United States; that, if the said order of the said relators be enforced against this respondent, and if its charge be reduced to one dollar ($1.00) per car, this respondent will be thereby deprived of the ability to pay the interest upon its said bonded indebtedness, as it has, with the consent of the State of Minnesota, contracted to do, and that any law of the said State, or any order of the said relators, or any judgment of this court, preventing the respondent from performing its said contract, when without such law, order, or judgment it might have performed the same, or might thereafter perform the same, is and will be a law, order and judgment impairing the obligation of a contract, and is and will be in violation of section 10 of article 1 of the Constitution of the United States, and is and will be wholly void.

“This respondent, further making return, says, that the said order of the said relators, set forth in said alternative writ, will, if enforced, deprive it of its property for the use and benefit of private citizens, without making any compensation unto it as the owner thereof, in violation of section 13 of article 1 of the constitution of the State of Minnesota, and is and will be wholly void.

“And this respondent, further making return, says that, by. the provisions of section 4 of article 10 of the constitution of said State, this respondent, being a common carrier, enjoying the right of way in pursuance of the provisions of the said constitution; is bound to carry the mineral, agricultural and other productions of the people of said State on equal and reasonable terms; that it has always so carried the same whenever tendered or offered to it for that purpose ; that the terms offered by it have always been equal and uniform to all persons and have always been reasonable in amount.

“And this respondent avers, that it is entitled to have and

Opinion of the Court.

receive reasonable compensation for the service it is so bound to render, and that the said order of said relators, set forth in said alternative writ, assumes to fix a grossly inadequate and unreasonable compensation therefor, is in violation of the constitutional provision last mentioned, and is wholly null and void.

“That, by reason of the matters herein before set forth, this respondent has not complied, and ought not to be by the mandate of this honorable court compelled to comply, with the requirements of the recommendation and order made on the 2d day of August, 1887, and in said alternative writ set forth.

"Wherefore this respondent prays the judgment of the court that the said alternative writ may be discharged and that this respondent may be hence dismissed.”

On a hearing on the return, on the 29th of January, 1889, the company asked leave to make proof of the matters set forth in the return, at such time as the court might appoint; but the request was denied; and the company excepted. On the motion of the attorney general, judgment was then entered on the application, the alternative writ and the return, for the issuing of a peremptory writ of mandamus, to review which judgment this writ of error is sued out.

The Supreme Court rendered an opinion stating that, as the case was similar to that of The State ex rel. The Railroad and Warehouse Commission v. The Chicago, Milwaukee & St. Paul Railway Co., before decided by it, the decision would follow the decision in that case and upon the reasons stated in the opinion filed therein.

The views and considerations applicable to that case, Chicago, Milwaukee & St. Paul Railway Co. v. Minnesota, which has just been decided by us, .ante, 418, apply with even greater force to the present case, as appears by the return above set forth at length.

The Minneapolis Eastern Railway company was organized as a corporation in June, 1878, under title 1, chapter 34 of the General Statutes of Minnesota. By § 2 of an act of the legislature, approved March 3, 1869, (Laws of 1869, c. 78, 95,) it was provided “that any railroad company or corporation

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VOL. CXXXIV-31

Opinion of the Court.

organized under the title to which this is an amendment, may charge and receive for the transportation of passengers and freight on their road such reasonable rate as may be from time to time fixed by said corporation or prescribed by law.” By § 8 of chapter 103 of the General Laws of Minnesota of 1875, it was provided as follows: “No railroad company shall charge, demand or receive from any person, company, or corporation an unreasonable price for the transportation of persons or property, or for the hauling or storing of any freight, or for the use of its cars, or for any privilege or service afforded by it in the transaction of its business as a railroad corporation.” We do not perceive that these statutory provisions .constitute such a contract with the corporation as to the fixing by it of its rates of charges, as to deprive the legislature of its power to regulate those charges.

The decision of the commission in the present case appears to be merely a general finding that each and every charge in excess of $1.00 per car for switching within the limits of the city of Minneapolis is an unreasonable and excessive compensation for the service performed. The commission states that it made such finding after due and careful inquiry and consideration; but it does not appear that the Minneapolis Eastern Railway Company had-any prior notice of any hearing at which such finding was made; or any opportunity of being heard in regard thereto; while it does appear that it asked leave of the court to make proof of the matters so set up in its return, that its request was denied, and that it excepted to such denia!; and it further appears by its return that it claimed that the rate of $1.00 per car would be so unfair, unequal, unjust and unreasonable as to take its property against its will without due process of law.

For the reasons set forth in the other case just decided, ante, 418, The judgment of the Supreme Court of Minnesota, rendered

February 27, 1889, awarding a peremptory writ of mandamus against the railway company, is reversed, and the case is remanded to that court with an instruction to take further proceedings not inconsistent with the opinion of this court.

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