taken from the road, then we might discuss this ques- | junction in such a case it would certainly be where the tion. State statute was clearly violative of the State Constitution, and where there was no doubt remaining. BRIEF OF CLIFFORD ANDERSON, ATTORNEY- The statement in the supplemental brief that we "admit this position upon the force and meaning of the provision that the Commissioners' schedules shall be sufficient evidence that the rates therein fixed are just and reasonable," will appear quite unguarded by reference to our argument in the original brief, at page 15; 1. The apprehended injury is too uncertain to authorwe there expressly state that the act makes a rule of ize a court of equity to interpose by injunction. It is evidence, and we argue that it is competent for the by no means apparent that the complainant will suffer Legislature to make rules of evidence, to give one loss or damage if the court declines to interfere. A recharacter of evidence more weight than another. We duction of rates always results in an increase of busicite Cooley's Con. Lim., saying that the whole subject ness, and often larger aggregate earnings. It seldom of evidence is under legislative control. That the Leg-produces a diminution of the income of a railway. Inislature says that certain evidence is sufficient to estab-junction is a harsh and extraordinary remedy, and is lish certain facts is not saying that other evidence may not granted except in cases where real, not imaginary, not be introduced to contradict it. injury is threatened, to prevent which the complainant has no other available or adequate remedy. As to the Commissioners examining the books of the roads, etc, we think we have fully answered this in the original argument. If the Legislature can authorize this inspection by a court, why can it not by the Commissioners? If the government has the right to fix the rates of carriers it must have the right to see what those rates are, and to see that legal rates are observed. But these are mere incidentals of the act of 1879, and the bill does not allege any act on the part of the Commissioners violative of their rights in this particular. In the arguments of the complainant and railway company many unkind reflections have been made upon the act of October, 1879, as well as upon the Commissioners appointed thereunder. As to the act, we state upon good authority that it was drafted by one of the best lawyers in the State, who is, and has been for years, a prominent director in the management of one of our best railroads. Nor is it apparent that the complainant has no sufficient legal remedy. If his stock suffers depreciation by the enforcement of the rates prescribed by the Commissioners, why can he not recover the damage in an action against the directors of the road? Or, if he can show that the business of the road for any given year would, at different and proper rates, be productive of dividends on his stock, why may he not make the directors liable in an action at law for such dividends-taking them as the measure of his damages? It is not alleged that the directors are insolvent or irresponsible. But it is argued that the complainant, in order to avail himself of his remedy at law, must institute numerous suits, and that equity should interpose to prevent a multiplicity of actions. One such suit, as is above indicated, would, it is respectfully contended in reply, be quite sufficient. One recovery against the directors would necessarily decide that the rates prescribed by the Commissioners could be safely disre all ground of complaint by Mr. Tilley would be instantly removed, for the company is in perfect accord and sympathy with him, and will not hesitate to demand other and higher charges for freights so soon as their right to do so is judicially declared. But it is said that Mr. Tilley could not prove the amount of his damage. Why not? If the rates prescribed by the Commission The policy of appointing Commissioners under that act was long mooted before the Legislature when the act was pending. Leading railroad men in the State ap-garded by the railway company, and this being settled, peared before the committees of the Legislature, with able counsel, arguing in favor of the appointment of a Commission, citing the example of foreign countries, and urging it by all means. In fact, but for their persistent efforts a Commission would not have been provided for in the act, but rates would have been fixed by the Legislature. Now if these rates of the Commissioners are iniqui-ers are enforced, it can soon be ascertained whether tous, and if the Commissioners are partial and incompetent, as intimated, why not impeach them? Such outrages as are portrayed in the argument of counsel ought not to be tolerated. Attack them and let them have a fair hearing. We are authorized to say that they court the investigation. they have affected the value of his stock in the market; or, by comparison of the earnings of the road, during a given period, under the rates now charged, with the earnings of a corresponding period, under the rates of the Commission, the difference can, without difficulty, be approximated. Enough at least can be shown to We desire to call attention of the tourt again to the authorize a recovery-assuming that the directors argument on hearing. should refuse to enforce the rates of the Commissioners -and this, as has been shown, would be quite sufficient to prevent a repetition of the injury. If it be said that unless the exact damage could be proven and recovered, the injury done to the stockholders would not be repaired for the time consumed by the litigation. I respectfuly reply that all courts presume an act of the Legislature to be constitutional, and are slow to decide otherwise, and that a court of equity will not arrogate to itself jurisdiction for the single and only purpose of That while the Federal courts have enjoined the officers of the State enforcing a statute of the State where the officers had no interest, but the entire interest was that of the State, in cases where the statute was violative of the Constitution of the United States, as Osborn's ease in the 9th Wheat.; Dodge vs. Woolsey, in the 18th How; Davis vs. Gray, in the 16th Wall.; yet we think the Federal courts have never enjoined such State officers having no interest, but where the entire interest was that of the State and where the effect of the injunc-inquiring into its constitutionality where only a temtion was, therefore, to enjoin the State, because the statute of the State was violative of the Constitution of the State. If the Federal courts should grant an in porary and slight injury at most will result before a full and adequate remedy at law can be made available. If it cannot be demonstrated by proof that some real, sub stantial damage, and wrong have been inflicted, then certainly no cause is shown for equitable interference. The case under consideration is distinguishable, on this point, from Dodge vs. Woolsey, (18th How., 331), in this: In that case the directors were actually misapplying the money of the bank to the payment of an unconstituional tax. There, if the tax was unconstitutional, the damage done to stockholder was absolute and certain. The money misapplied was partly his money. Besides, it does not appear that the question of a remedy at law was raised or considered in that case. It was assumed that there was no such remedy, and that there was no relief but in equity. just and reasonable rates works injustice to the stockholders and creditors of the corporation, in violation of the clause in the bill of rights, prefixed to the Constitution of 1877, which declares that "no grant of special privileges or immunities shall be revoked, except in such manner as to work no injustice to corporators or creditors of the incorporation." Of course, any statute passed to regulate railroad tariffs must aim to do justice to the corporation and its creditors, and I will go further and concede that the agencies or methods it provides or adopts for this purpose must be reasonably calculated to accomplish that object. If the purpose of the act is just, and the methods it employs appear to be wisely selected with the view of securing justice, the courts can inquire no further. The power to pass laws to regulate tariffa necessarily implies the power to choose in good faith such means or agencies for that purpose as may commend themselves to the legislative wisdom and discre tion. What is absolutely just cannot be determined by the finite mind. Justice, pure and simple, springs from Infinity alone. If a human law-giver aims to do and means to secure it, those which appear to him to be the best calculated to promote it, no more can be required. The case of Dodge vs. Woolsey is distinguishable in another point of view. There the bank could have filed a bill to restrain the collector of the tax. But could the Savannah, Florida and Western Railway Company ask an injunction against the enforcement of the rates prescribed by the Commission? It has the remedy in its own hands. It can refuse to regulate its charges by the standard prescribed. But it is said, if it does it runs the risk of incurring the penalties inflicted. Not if the act is unconstitutional. The act provides a way of deter-justice, and honestly provides reasonable safeguards mining in an action at law whether it is constitutional or not. If the road refuses to obey, and is sued for the penalties, it may plead that the law is unconstitutional, and the chancellor cannot hesitate to presume that, if it is, the court will so declare it and refuse to enforce the penalties. The railway company in this case, therefore, has no excuse, much less good cause, for filing a bill. Can its stockholder (Mr. Tilley) do what it cannot do, and what he has no right therefore, to demand that it shall do? In Dodge vs. Woolsey, the corporation having refused, the stockholder was allowed to do what it could and ought to have done but would not. Here the company cannot, neither can its stockholder. 2. But let us inquire into the principal grounds on which the constitutionality of the act under consideration is assailed. (A) It is contended that it impairs the obligation of the contract between the State and the company. We answer, it does not, for three reasons-or rather that to this allegation, there are at least three responses: 1st. Where a business is clothed with a public interest it ceases to be juris privati only, and is subject to legis. lative regulation. A railroad company, being a common carrier, accepts its charter with this power reserved to the grantor. This is clearly and emphatically decided in the case of Munn vs. Illinois, 94th U. S. Reports. 2d. Both the Code of Georgia of 1863, and the act of 1876, by virtue of which the Savannah, Florida and Western Railway Company was incorporated, expressly reserve to the Legislature the power to repeal, alter or modify any and all privileges or immunities granted to such corporations by their charter. The present Constitution of Georgia, adopted in 1877, before the Savannah, Florida and Western Railway Company was organized, not only clothes the Legislature with the power, but imposes on it the duty to pass laws from time to time to regulate freight and passenger tariffs, and requiring them to be "just and reasonable." 3d. It seems to be conceded by Mr. Chisholm that the act has a constitutional intent-its purpose being to provide for the estalishment of just and reasonable rates-but he contends that it is still unconstitutional, because, he says, the method it provides for ascertaining what are The inquiry, therefore, simply is, in exercising this granted power to make laws to regulate railroad charges, has the Legislature honestly sought to do justice to the railroad companies and their creditors, as well as to the public, and has it employed agencies wisely or reasonably caculated to secure this object? If so, it has exercised the power constitutionally-it has not transcended the bounds, but is clearly within the limits of legislative discretion. If, notwithstanding injustice, in some instances, still results (and few laws fail to operate harshly in some cases) let those who are aggrieved apply to the Legislature for such changes in the law as will make it more uniformly equitable. All laws should be just, or should seek to be, and it would have been the duty of the Legislature, without the clause referred to in the Constitution of 1877 as to working "no injustice," etc., to execute the power to pass laws regulating freights, in such way as to do no injustice which could reasonably be avoided. Shall courts declare laws to be unconstitutional because they believe them to be unjust? The Legislature must necessarily be the judge of the justice as well as the wisdom of its enactments. 6th Cr., 87. If it be said that the power given by the Constitution and sought to be exercised by the act in question, is one which may be greatly abused, it is replied, in the language of Mr. Justice Swayne, in Gilman vs. Philadelphia, on p. 731, 3d Wallace: "The possible abuse of any power is no proof that it does not exist. Many abuses may arise in the legislation of the States which are wholly beyond the reach of the government of the Nation. The safeguard and remedy are to be found in the virture and intelligence of the people. They can make and remake constitutions and laws; and from that tribunal there is no appeal. If a State exercises unwisely the power here in question, the evil consequences will fall chiefly upon her own citizens. They have more at stake than the citizens of any other State." But it is said that the act delegates to the Commissioners powers which can be exercised by the Legislature and deprives the owner of it permanently, or temporarily uses it for the public to the exclusion of the owner, that in the one case the value of the property shall be paid, and in the other compensation shall be made for the damage. only. This argument is based on a misapprehension that where the State appropriates or takes the property of the nature of the power with which the General Assembly is clothed. The language of the Constitution is: "The Legislature shall, from time to time, pass laws to regulate freight and passenger tariffs," etc.; not that the Legislature shall itself fix and prescribe the rates to be charged-a thing wholly impracticable. The power to pass laws to regulate, or for the purpose of regulating, implies the use of means or agencies for the accomplishment of that object. The Constitution of the United States gives Congress the power to "lay and collect taxes," but who ever supposed that this requires Congress itself to assess the property of the tax-payer and collect the amount as sessed? The Constitution of Georgia provides that property shall be assessed for taxes, ad valorem, or according to its value, but must the Legislature declare the value of each article of property for taxation? or can it not (as it has often done) provide for the appointment of boards of assessors for this purpose? The Constitution of the United States confers on Congress the power to regulate commerce with foreign nations and among the States, and with the Indian tribes. Under this grant of power, can it be doubted that Congress can pass laws providing for the appointment of agents or officials to execute the regulations made and to prescribe, within certain limitations, fees and charges, etc? Fees of public officials, such as port wardens, marshals, clerks, etc., are usually prescribed by law so as to cover their ordinary duties, but it is not infrequently the case that tribunals are appointed or officials designated to fix and determine the compensation for services not specifically provided for by law. A railroad partakes of the nature of both public and private property. To leave the corporation to fix its own charges is not just to the public. Hence the act in question provides for the selection of three capable and impartial Commissioners, and expressly enjoins upon them to make just and reasonable rates. Drifting about for some support on which to rest his case, the complainant, through his indefatigable counsel, strangely enough summons to his assistance that provision of the Constitution of Georgia which ordains that property (whether public or private, it is claimed,) shall not be "taken or damaged" for public use without just compensation. The act under consideration does not contemplate the appropriation or use of the property of the Savannah, Florida and Western Railway for public purposes, nor is such its effect. Its object is to regulate the charges which the corporation may make in the use of the property itself for its own purposes. The constitutional provision invoked means Equally strange is the effort to take refuge under that clause of the Constitution of Georgia, which requires laws of a "general nature" to have a “uniform operation throughout the State" (par. 1, sec. 4, art. 1). The act assailed is an act affecting railway companies only, and it is designed to have a uniform operation— to affect each and all of them alike. The principal of uniformity, which runs through it, is to provide for a schedule of rates which shall be just and reasonable. Surely, it will not be contended that to make it have a "uniform operation" it must require each company to charge the same rates of transportation? No one would be more prompt to protest against such a requirement than the Savannah, Florida and Western Railway Company. Is the Legislature obliged to en act that each toll-bridge allowed to be built shall charge the same rates of toll? Such an enactment would be arbitrary, and often operate very unjustly. Besides, is the act, properly speaking, "a law of a general nature?" It has special application to railroads, and to them only. But it is said that if this is the proper view to take of it, then it is obnoxious to the concluding part of the paragraph of the Constitution above cited, which declares that "no general law affecting private rights shall be varied in any particular case by special legislation, except with the free consent in writing of all persons to be affected thereby." We fail to perceive the relevancy of this argument or its application. What "general law" is affected by this special act? Before its passage, each railroad prescribed its own tariffs or charges, under the power granted in their respective charters. There was no general law regulating this matter at all. Equally futile is the attempt to show that the act in question violates the 3d par. of section 1 of the bill of rights prefixed to the Constitution of Georgia, which forbids that any "person shall be deprived of life, liberty or property except by due process of law." This is fully covered by the decision in the case of Munn vs. Illinois, where the distinction between regulating the charges of common carriers and depriving them of their property, is clearly stated and drawn. A careful examination of that case, and the authorities to which it refers, will completely dispel whatever doubts and dissipate all the mists the industry and ingenuity of counsel have gathered around the questions involved in this case. Paragraph twenty-three, section one, article one, de GEORGE H. TILLEY, VS. THE SAVANNAH, FLORIDA AND The following opinion was rendered February 9, 1881, by Mr. Justice Woods, of the United States Supreme Court, in the above stated case: The Constitution of the State of Georgia, paragraph twenty-two of section seven, article three, reads as fol lows: The General Assembly shall have powerto make all laws and ordinances consistent with this Constitution and not repugnant to the Constitution of the United States, which they shall deem necessary and proper for the welfare of the State. The legislative, judicial and executive power shall forever remain separate and distinct, and no person discharg ing the duties of one shall at the same time exercise the functions of others, except as herein provided. Paragraph three, section three, article one, declares: No grant of special privileges or immunities shall be revoked except in such manner as to work no injustice to corporators or creditors of the incorporation. Legislature on October 14, 1879, passed an act to carry into These provisions of the Constitution being in force, the effect paragraph one, section two of article four above quoted. The act provides (section three) as follows: That if any railroad corporation organized or doing business in this State under any act of incorporation or general law of this State now in force, or which may Paragraph one, section two of article four declares hereafter be enacted, or any railroad corporation organ that: The power and authority of regulating railroad freights ized or which may hereafter be organized under the laws of any other State, and doing business in this State, shall charge, collect, demand or receive more than a fair and and passenger tariffs, preventing unjust discriminations reasonable rate of toll or compensation for the transpor and requiring reasonable and just rates of freight and tation of passengers or freight of any description, or for passenger tariffs are hereby conferred upon the General the use and transportation of any railroad car upon its Assembly, whose duty it shall be to pass laws from time to time to regulate freight and passenger tariffs, to pro-road within this State which it has the right, license, or track, or any of the branches thereof, or upon any railhibit unjust discriminations on the various railroads of the State, and to prohibit said roads from charging other than Just and reasonable rates, and enforce the same by adequate penalties. Paragraph two: The exercise of the right of eminent domain shall never be abridged nor so construed as to prevent the General Assembly from taking the property and franchises of incorporated companies, and subjecting them to public use the same as property of individuals and the exercise of the police power of the State shall never be abridged nor so construed as to permit corporations to conduct their business in such manner as to infringe the equal rights of individuals or the general well being of the State. Paragraph one, section five, article two, declares: The people of this State have the inherent, sole and ex clusive right of regulating their internal government and the police thereof, and of altering and abolishing their Constitution whenever it may be necessary to their safety and happiness. Paragraph one, section three, article one, declares: * Private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid. Paragraph three, section one, article one, declares: No person shall be deprived of life, liberty or property except by due process of law. Paragraph two, article one, section one, declares: Protection to person and property is the paramount duty of government, and shall be impartial and complete. Paragraph one, section four, article one, declares: Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law. No general law affecting private rights shall be revised in any particular case by special legislation except with the free consent in writing of all persons to be affected thereby. permission to use, operate, or control, the same shall be deemed guilty of extortion, and, upon conviction thereof shall be dealt with as hereinafter provided. The act further provides for the appointment of three Railroad Commissioners whose duty it shall be to make reasonable and just rates of freight and passenger tariffs to be observed by all railroad companies doing business in this State on the railroads thereof. Section six of the act declares as follows: That the said Railroad Commissioners are hereby authorized and required to make for each of the railroad ticable, a schedule of just and reasonable rates of charges corporations doing business in this State, as soon as prac for the transportation of passengers and freights and cars on each of said railroads; and said schedule shall, in suits brought against any such railroad corporations wherein is involved the charges of any such railroad corporation for the transportation of any passenger or freight or cars, or unjust discrimination in relation thereto, be deemed and taken in all conrts of this State as sufficient evidence that the rates therein fixed are just and reasonable rates of charges for the transportation of passengers and freights and cars upon the railroads; and said Commissioners shall, from time to time, and as often as circumstances may require, change and revise said schedule. Section nine provides: That if any railroad company doing business in this State, by its agents or employes, shall be guilty of a viola" tion of the rules and regulations provided and prescribed by said Commissioners, and if, after due notice of such violation given to the principal officer thereof, ample and full recompense for the wrong or injury done thereby to any person or corporation, as may be directed by said Commissioners, shall not be made within thirty days from the time of such notice, such company shall incur a penalty for each offense of not less than one thousand dollars, nor more than five thousand dollars, to be fixed by the presiding judge. An action for the recovery of such penalty shall lie in any county in the State where such viola tion has occurred, or wrong has been perpetrated, and shall be in the name of the State of Georgia. The Comsioners shall institute such action through the AttorneyGeneral or Solicitor-General, whose fees shall be the same as now provided by law. By authority of this act James M. Smith, Campbell Wallace and Samuel Barnett were appointed Railroad Commissioners, and were qualified and entered upon the discharge of their duties. The Commissioners, as required by law, prepared and promulgated a standard schedule of just and reasonable rates of charges for the transportation of passengers and freights, and cars, and required it to be observed with such modifications as might thereupon be set forth by such of the railroad corporations doing business in the State, and that copies of the schedule should be posted by the railroad companies at all their stations, and that the same should go into full effect and oneration on May 1, 1880. Thereupon the complainant in this case, George H. Tilley, who averred himself to be an alien and a stockholder in the Savannah, Florida and Western Railroad Company, a railroad corporation of the State of Georgia, filed his bill to which he made the said railroad company, Jas.M. Smith, Campbell Wallace and Samuel Barnett, Railroad Commissioners, and Robert N. Ely, Attorney-General of Georgia' parties defendants. The bill alleged that the complainant was the holder of one hundred shares of the capital stock of the Savannah, Florida and Western Railway Company, for which he had paid the sum of $10,000 in cash. That the said Savannah, Florida and Western Railroad Company had its origin as follows: By a decree of the United States Circuit Court for the Southern District of Georgia, the property, franchises, rights, privileges and immunities of the railroad corporation, known as the Atlantic and Gulf Railroad Company, were sold in November 4, 1879, to Henry B. Plant and his associates. That the purchasers of said railroads and property of the Atlantic and Gulf Railroad Company were the bona fide owners of one million four hundred and fifteen thousand dollars of the second mortgage bonds of said company, to satisfy which such sale was made, and that their cash bid at the sale was $300,000, which sum was paid in hand. That said sale was made, subject to the lien of a mortgage executed by said Atlantic and Gulf Railroad Company to secure certain bonds issued and sold by it and known as its first mortgage bonds, and that said lien amounted at the time of said sale to about $2,700,000. | and contracted with the holders thereof that the corporate property, including the franchises, tolls and increase of said Atlantic and Gulf Railroad Company, should be pledged for the payment of the principal and interest of said bonds. The bill further averred that, while the State of Georgia was a stockholder as aforesaid in the Atlantic and Gulf Railroad Company, said company made contracts with various lumber manufacturers by which, in consideration of the payment by them of fifty cents per thousand feet for lumber intended for export, the said company agreed to build a branch road from its depot in Savannah to the Savannah River, and in pursuance of said contract did build said branch road at a cost of about $150,000, and the said lumber manufacturers who have used said branch road have paid, and continue to pay without complaint, the said rate of fifty cents per thousand feet for the use of said branch road. That while said Atlantic and Gulf Railroad was under the management of the receivers appointed by the court under whose decree said sale was made, said receivers, at the instance of the lumber manufacturers along the line of said railroad, laid down side-tracks for their exclusive use, in consideration whereof said lumber men agreed to pay a rental of fifteen dollars per car for the use of said tracks, and they have paid and continue to pay said rental. The bill claimed that under the decree by which said railroad was sold, the purchasers became entitled to the benefit of said contracts as a part of the as sets and property of the Atlantic and Gulf Railroad Company. The bill further av erred that: The Atlantic and Gulf Railroad Company, the corpora tion which owned the railroad so purchased, was com posed of “The Atlantic and Gulf Railroad Company," incorporated under the act of the State of Georgia, approved February 27, 1856, and the original "Savannah and Albany Railroad Company," chartered by act of the General Assembly of Georgia, approved December 25, 1847, the name of which was changed to "The Savannah, Albany and Gulf Railroad Company," by an act approved February 20, 1854. Acts of 1855-6, p. 158. That these two companies were consolidated by author. ity of an act of the General Assembly of the State of Georgia, approved April 18, 1863, entitled "An act to authorize the consolidation of the stock of the Savannah, Albany and Gulf Railroad Company, and the Atlantic and Gulf That said Plant and his associates under the provisions Railroad Company, and for other purposes." By the third of an act of the Legislature of Georgia, approved Feb-section of said act of consolidation, it was enacted, "That ruary 29, 1876, had formed the said defendant corporation, the several immunities, franchises and privileges granted the Savannah, Florida and Western Railroad Company, to the said Savannah, Albany and Gulf Railroad Company and to it was conveyed under the orders of said court the and the Atlantic and Gulf Railroad Company, by their property and franchise rights and immunities of the said original charters and the amendments thereof, and the Atlantic and Gulf Railroad Company. That the act by liabilities therein imposed, shall continue in force, except virtue of which the said Savannah, Florida and Western so far as they may be inconsistent with their act of conRailroad Company was organized and said conveyance solidation." made declared that upon the sale of the property. franchises, rights and immunities of any railroad company in the State of Georgia the railroad company formed by the purchase thereof should possess all the powers, rights, Immunities. privileges and franchises in respect to such railroad which were promised or enjoyed by the corporation which owned or held such railroad previous to such sale under or by virtue of its charter and any amendments thereto, and of other laws of the State. (Acts of 1876, page 118.) The bill further charged that at the time of making and issuing the said first mortgage bonds, subject to which the Atlantic and Gulf Railroad was sold, the State of Georgia was a holder of the stock of the said company to the amount of $1,000,000, and that as such stockholder the State, acting by her duly appointed commissioner, voted for the making and issuing of said first mortgage bonds, The bill claimed that the two companies aforesaid which were consolidated, and out of which the Atlantic and Gulf Railroad Company was formed, were granted by their charters the right to charge certain rates of freight and passenger fares specified therein, and that the right to charge the same freights and fares had been conferred upon the Savannah, Florida and Western Railroad Company by the act of February 29, 1876, aforesaid. That the Savannah, Florida and Western Railroad Company had adopted a schedule of freights and passenger fares less than the maximum rates fixed by the charter of the Atlantic and Gulf Railroad Company, but that the rates so adopted were greater than those fixed by the schedule of the said Railroad Commission. The bill claimed that if the rates established by the Railroad Commissioners were made obligatory upon the Savannah, Florida and Western Railroad Company it |