of invested capital are said to have been intrusted. In truth, there are no limits, when this species of "communism" is resorted to. The catch-word "monopoly," uttered without any intelligible meaning when applied to the business of a corporation that is constantly engaged in competitions for employment, and that enjoys no exclusive privilege of carrying; the assumption that the sovereign has made no contract which he cannot break; that he holds the capital of his subjects in his "discretion," because he has authorized them to make a purchase which could only be made under the authority of law;-these and a few kindred absurdities are the staple of writers who are bold enough to warn the managers of our railroads that "the sooner they learn to take correct views of their situation, the better it will be for those interested in the SECURITIES of these corporations"! As a homily from the bad law to which I have thus devoted a few observations, we are told that "railroads should discontinue their efforts to mislead the public mind and to corrupt the ballot-box. The politicians whom they are now using do not deserve, and will never obtain, public confidence, because such men are not actuated by principle, or stimulated by the courage of conviction." *

I think it not inopportune to say something here concerning the charge of misleading the public mind, and corrupting the ballot-box. If I knew of a well-authenticated case, in which a railroad or any other corporation had obtained, or prevented legislation, by bribery, I should be as readily disposed to promote a prosecution of the offenders as any one in the community. But in forming my opinions of the conduct of railroad managers, I shall never commit the injustice of imputing corruption upon the wholesale assertions that a practice is notorious, which nobody undertakes to prove by anything more than assertion. I am disposed to believe that "our modern railroad president" is a much maligned person. I know many railroad presidents who are undoubtedly anxious men, bearing a great weight of responsibility, in the fiduciary relation in which they stand to the share-holders and bond-holders of their companies. If they watch the legislatures with vigilance, if they use legitimate means to influence public opinion, if they guard the interests intrusted to their care with fidelity, what do they do more, or what do they

3

"North American Review," June, 1881, p. 601.

do that is more blameworthy, than is done by other men who represent private interests that are subject to hostile attacks?

I have witnessed the origin and growth of the whole railroad system of this country, which has been created since I came to years of discretion. At first, the projectors of these great improvements were regarded with favor. We were, comparatively speaking, not a rich people; and we were glad to hold out encouragement to foreign capital to aid our domestic capital in the development of the resources of our wonderfully capable country. To the policy which prevailed here for the thirty or forty years which followed the invention of the locomotive, added to certain guaranties of our constitutional law, and the steady and consistent course of our jurisprudence, we owe our civilization and our present wealth, in a very large degree. America could not have become what it is if our laws and institutions, and our public policy, had not afforded securities to the investment of corporate capital, calculated, in a most remarkable manner, to concentrate it in enterprises that no individual fortune could have accomplished. But of late there has sprung up a disposition to assail this capital, as if it were a public enemy; to inculcate the belief that it threatens the safety of our political institutions; to get rid, if possible, of the obligations and restrictions of our fundamental law, and to devise new methods of public action, which amount practically to confiscation and plunder.

The political institutions of our country have been to me, through a life that is now not a short one, an object not only of veneration and pride, but of observation and constant study. I profess my total unbelief in any serious peril to our institutions, arising from the power of our business corporations. As a dangerous force in our politics, they are far weaker than many other forces of which nothing like the same apprehension is either affected or felt. If I were to undertake to point out the greatest actual peril to our political institutions, I should place it in the increasing numbers of voters who are willing to sell their votes, in the characters of politicians who are willing to buy votes for money, and in the sources from which the money is drawn. A political party, led by unscrupulous public men, with the power of the Federal Government in their hands, can do more to corrupt the people than all the railroad corporations in the land. Public money can be filched in so many ways under the forms

of law; such vast sums can be extorted for political purposes out of the salaries of office-holders, that money drawn directly or indirectly from the public treasury has become the one great force in our elections. The money of private corporations can neither be so easily diverted to political uses, nor used in such amounts. It is for the most part in the custody of trustees, whose interest, if not their honesty, is opposed to its use as a means of political corruption. A railroad president, supposing him to be a partisan, however willing to give for political purposes from his own private purse, is naturally chary of so using the corporate funds, for which he must account to a body of jealous share-holders or creditors. A thorough-paced politician, who occupies a place of influence in the government, can devise many ways of using public money for political purposes; and if he does not always escape detection, he can rely on the easy-going virtue of a successful party, or count upon the indifference of the public to give him the verdict that the end justified the means.

Until I see, therefore, some honest and earnest effort to direct public attention to that which is, beyond all comparison, the greatest and most palpable danger to which our institutions are exposed, I shall hold myself excused for not joining in the clamor against corporations, whose power, opportunities, and means for corruption are as much exaggerated as the honesty and public virtue of their managers is unjustly depreciated. So long as this class of men, in defense of the rights of those for whom they are trustees, rely upon the law of the land, employ none but legitimate means of influencing public bodies and enlightening the public mind, my sympathy will go with them; and I cannot doubt that in the end their cause will prevail.

I avail myself of this opportunity to publish the following opinion, given by the late Hon. Benjamin R. Curtis, in the year 1874:

OPINION-WISCONSIN RAILROAD ACT.-" POTTER LAW."

My opinion has been requested by the Chicago and North-western Railway Company concerning the constitutional validity of an Act passed by the legislature of the State of Wisconsin, approved by the governor on the 11th of March, 1874.

So far as that Act undertakes to regulate the rates of freight and fare receivable by said railroad, and to compel the corporation under heavy penalties, to be inflicted on itself, its servants, and agents, to transact its business at the rates of compensation in that Act described and enumerated, certain material facts are stated as proper to be taken into consideration.

The first is, that this railway corporation, which was formed by the consolidation of different railways lying in Wisconsin and Illinois, had, both by virtue of the original charters of these portions of its road, as well as by the Act which consolidated them into the present Chicago and North-western Railway Company, the right to regulate its charges for the business it might transact, through its directors.

The next material fact stated is, that if the corporation transact its business for the rates of compensation provided in the law in question, its entire receipts will be exhausted by its expenditures, leaving nothing to be divided among its stockholders, or appropriated to the payment of the interest and principal of its outstanding bonds.

The third material fact to be considered is, that many millions of dollars of bonds, duly issued by the corporation under authority of law, the proceeds and avails of which were actually received by the corporation and expended in building and equipping the road, are now outstanding in the hands of bona fide holders in the United States and foreign countries.

Upon these facts the general question arises: whether the legislation has constitutional validity, so as to be operative and binding upon the railroad corporation, subjecting it, and its officers, and servants, under the heavy penalties provided in the Act, to the necessity of carrying on its business without any profit, and even at a probable loss.

The eleventh article of the Constitution of Wisconsin contains this provision:

"All general laws or special Acts enacted under the provisions of this section may be altered or repealed by the legislature at any time after their passage."

If the Act now in question can be deemed to have validity, it must derive it from this provision of the Constitution.

This provision is substantially the same as is found in some other constitutions and in general laws of other States, as well as in particular charters, and it has often come under judicial examination.

It seems to have been generally admitted, by all who have had occasion to consider the question, that this is not an unlimited power. This has been declared by the highest authorities.

Commonwealth vs. Essex Co., 13 Gray, 253.

Miller vs. Railroad Co., 21 Barb., 517.

Miller vs. The State, 15 Wallace, 498.

The true inquiry here is, what are the limits, in this particular case, beyond which the legislature cannot pass by virtue of this eleventh article of the Constitution.

First. One of these limits may be found in the nature of the Act attempting to alter or amend the charter. Charters are to be amended or altered by the exercise of legislative power; and if the act in question, when rightly viewed, is not an exercise of legislative power, then it cannot be deemed to be authorized by this article of the Constitution.

And my opinion is, that it is not within the field of legislation, under any American constitution, to fix and prescribe for the future what prices shall be demanded, either for commodities or for personal service, or for a union of both. I do not believe it is within the power of any legislature in the United States to compel owners of property, or persons natural or political, to part with their property or render their personal services, at their own expense and risk, to the public, for prices fixed by the legislature. No department of government has power to make bargains for the people.

Taylor vs. Porter, 4 Hill, 140.

Nor even for a municipal corporation, when the purpose is private.

People vs. Bachellor, 53 N. Y., 140.

If the legislature can, in this instance, be deemed to have possessed that authority, it must be because this particular case is an exception to the general rule.

I suppose the ground upon which such an exception would be attempted, is, that railroads have often and correctly been said to be public highways. They are so in some sense. They are usually authorized by the State to be constructed, and the power of eminent domain is intrusted to the corporation to enable it to locate and construct the road; but when constructed it is out of the means of a private corporation, which is the owner of the road in the same sense that a private corporation is the owner of a bank. Property