instituted on behalf of the people, and it is imposed for the first offense. This, as already remarked, in some cases would amount to a fine of millions of dollars. Is not this a violation of the spirit of that constitutional provision which says, in terms, that "all penalties shall be proportioned to the nature of the offense?" Is it not also a violation of the spirit of the very clause of the constitution under which this act was framed, and which requires the legislature to pass laws to prevent unjust discrimination and extortion by railroad corporations, " and enforce such laws by adequate penalties, to the extent, if necessary for that purpose, of forfeiture of their property and franchises?" Would it not be better to enforce the law by a series of considerable and increasing fines, before imposing the final penalty of forfeiture? A law admitting of but one penalty, and that of the hardest possible character, will necessarily be subjected by the courts to close criticism and a strict construction.1 § 471. The English parliament passed a law in 1854 prohibiting the giving of undue or unreasonable preferences or advantages by railway companies in the 1 The justice of this stricture is conceded. The law of 1873 went to the other extreme of omitting any reference to forfeiture, an evident oversight, and one which will probably be remedied at an early day. Indirectly it fixes the limit. Twentyfive thousand dollars is the extreme limit of damages. In the event that even this penalty should fail to have the desired restraining effect, the court would be in duty bound to inflict the final punishment contemplated by the constitution. An omission on the part of the general assembly to exercise its full authority would not relieve the court from obligation to consider whether the circumstances of the case demanded the extreme punishment or not. That penalty would be just in case the offender had shown that milder treatment was ineffective. management of their business. Under this act various cases have arisen in the English courts, which have been cited by counsel. It is unnecessary to comment upon them. They hold, as we do, that a discrimination is not necessarily an unjust discrimination; that is to be determined upon the evidence. § 472. The opinion of the court is, that while the $ legislature has an unquestionable power to prohibit unjust discrimination in railway freights, no prosecution can be maintained under the existing act until amended, because it does not prohibit unjust discrimination merely, but discrimination of any character, and because it does not allow the companies to explain the reason of the discrimination, but forfeits their franchise upon an arbitrary and conclusive presumption of guilt to be drawn from the proof of an act that might be shown to be perfectly innocent. In these particulars, the existing act violates the spirit of the constitution. 1 The judgment of the circuit court ousting the appellant of its franchises, must therefore be reversed. 'It is a settled principle of jurisprudence that a decision setting aside certain features of a law as unconstitutional leaves the other features of the statute in force. In this case there was nothing of any consequence left of the act after this decision. CHAPTER X. CONSTITUTIONAL LAW. I. CONTRACTS AND CHARTERS. II. COMMERCE BETWEEN STATES BY RAIL. I. CONTRACTS AND CHARTERS. § 473. Constitutional limitations. 479. Origin of the college. 480. New Hampshire legislation. 481. The issue joined. 482. Counsel and court. 483. Latest authoritative statement of the law declared in that case. 484. A legal axiom. 485. Illinois and New Hampshire legislation not analogous. 486. Supposable analogies. 473. In no government that exists, or that has existed, is the opinion of the hour more effectively curbed than in the United States. Our constitutional system is a constant restraint. The past guides and checks the impulses of the present. The people do indeed rule, but popular sovereignty is a limited monarchy. In England whatever legislation parliament ordains the crown sanctions, and the courts enforce, unquestioningly. With all the British deference to the past there is only one legal way to escape the enforcement of an act of parliament, and that is to repeal it. Under our system of constitutional government it is always competent for the courts to question the validity of a statute. For this reason the present treatise demands an inquiry into the constitutionality of the railway policy of Illinois. 8 474. The main reliance of the enemies of this policy for its judicial overthrow is the clause of the national constitution, which reads: "No state shall pass any law impairing the obligations of contracts." 1 In this brief sentence is contained the most characteristic feature of our government. § 475. In the republics after which our form of government was modeled, and under the common law, which is the foundation of all jurisprudence, both in this country and in England, we find suggestions of the need of such a prohibition, rather than proofs of its utility. The history of English rule in America is, in its general legal outlines, the history of contracts made only to be broken. Among the many charters granted and then violated was one ceding a vast area, including the entire state of Illinois, to a company composed of Francis Bacon, Oliver Cromwell and about fifty other British subjects. A few years later the contract was not only "impaired," but wholly abrogated. Had every commercial and real estate contract made by the English government been observed in good faith not an element of England's prosperity would have survived in freedom. It is equally true that had it not been for the bad charter faith of the English government the thirteen American 1U. S. Constitution, art. i, sec. 9. colonies would have remained loyal. Fresh from a war provoked by impairment of the obligations of contracts, the founders of this republic were impressed with the importance of governmental good faith. Never having had experience of the peril of allowing men in power to bind their successors and the country forever, they had no very lively sense of the danger of collusion between public officers and corrupt cabals. § 476. It would be difficult to balance the good and evil of the two systems-the British and the American. Absolute popular sovereignty, restrained only by habitual reverence for the past, is liable to gross abuse; and so are constitutional limitations. The interpretation of the constitution is left, in its ultimate and binding form, to the courts, and there is more or less danger that personal opinion will usurp the place of organic law, consciously or unconsciously. 1 $477. The term "contract" has been frequently defined by the courts. Chief Justice MARSHALL'S definition in the Dartmouth College case is, "an agreement in which a party undertakes to do or not to do a particular thing." His successor, Chief Justice TANEY, explained a contract to be "an agreement between two or more parties to do or not to do a particular thing." 2 Parsons, in his work on contract, calls it, "an agreement between two or more parties. for the doing or not doing of some specifiea thing." 3 These definitions are identical. Blackstone, and after him Kent, are more complete. They say, "a contract is an agreement upon sufficient consideration to do or |