apposite to the question of through freight, and the regulation by a state of the charges for its transportation, of any decision yet rendered. The exact limitation of state control over inter-state commerce will not have been authoritatively defined until the tribunal of last resort has rendered a decision in a case arising under the peculiar legislation of Illinois, or similar legislation in other states, should there be such legislation elsewhere. $ 505. The Hon. ISAAC REDFIELD is so far an authority on railway law that his opinion on this subject is given. It is as follows, viz.:1 "The fact that the entire subject of regulating all commerce among the different states, including all the means and appliances by which it was carried on, was committed to congress, and that, thereafter, the states were to have no concurrent action in the regulation of the same, would seem to reduce the question of congress having the power of regulating inter-state railway traffic to the single inquiry, whether it forms any portion of the commerce of the country, which requires to be regulated at all. Those who assume to argue that congress has no power to regulate the traffic upon these extended lines of railway reaching from one end of the Union to the other, must, if they would meet the question fairly, either say, the traffic on these extended lines of railway, amounting to many millions annually, probably ten times as much as the entire commerce of the country at the time of the adoption of the constitution, is not commerce at all, or, if it be, is not subject to any regulation or control whatever. For it is certain the states have neither the power or capacity to regu1 Redfield, vol. 1, p. 723, fifth edition. * * * late, to any purpose, or with any efficiency, this interstate railway traffic. It must then come under the control of congress or be left to its own devices and impulses, an experiment never yet tried in any other country. It will not be important here to enumerate the exceptions to the regulation of commerce by congress. It does not, of course, extend to that commerce which is exclusively within the limits of a single state; which begins and ends within the same state. 1 Hence, a state law conferring an exclusive right to the navigation of the upper waters of a river wholly within the limits of such state, and separated from tide water by falls, which are impassable for purposes of navigation, and not forming a continuous line of commerce between two or more states, or with a foreign country, is not unconstitutional. And it seems to have been considered, by the later decisions, that so long as congress wholly abstains from all attempts to regulate any particular department of commerce, either foreign or inter-state, state laws in regard to the same will not be declared void.3 There are some subjects of state cognizance which in their operation and enforcement produce an effect, incidentally, upon commerce beyond the limits of a single state, such as pilotage, ferries, health regulations, the support of paupers, police, and crime, which, 1 Passaic Bridges, 3 Wall. 782; Heldeman v. Beckwith, 4 McLean (C. C.) 286. 2 Veazie v. Moore, 14 How. 568. 3 United States v. Railroad Bridge Co. 6 McLean (C. C.) 517; Woodman v. Kilbourne Man. Co. 6 Am. Law. Reg. (N. S.) 238; Cooley v. Board of Wardens, 12 How. (U. S.) 299; Gilman v. Philadelphia, 3 Wall. 713. nevertheless, must be left to the control of the states, and whose legislation, if fairly kept within necessary limits, must be upheld." III. LEGISLATIVE AND JUDICIAL AUTHORITY. § 506. The question stated. 507. Chicago and Alton case. 508. Forfeiture of franchise and property. 509. For what cause lawful. 510. In what way that penalty may be enforced. 511. Regulating common carrier business. 512. Legislative jurisdiction; New York authorities. 514. The doctrine in Illinois. 515. Jurisdiction of the legislature sustained. 516. Importance of judicial limitations. 517. Potter's Dwarris, on Statutes. 518. Cooley on Limitations. 519. Exact and authoritative statement of the doctrine. 8506. The object aimed at in the railway section of the constitution of Illinois, and the legislation thereunder is to prevent unjust charges and discrimination. The power of the state to exercise that authority has been shown to rest alike on the written and unwritten law. The final question is: How far is the exercise of that right vested in the legislature? § 507. The Chicago and Alton case gave to the supreme court its first and thus far its only opportunity to define its position herein. That opportunity was not improved, except indirectly. The only allusion to it was in connection with the forfeiture of franchise. No authorities were quoted by the learned Chief Justice. It is, however, a well established principle that even when the forfeiture of a franchise is the inevita ble sequence of legislation, a judicial verdict on a writ of quo warranto or scire facias is necessary. § 508. In an early Illinois case the court held that "the legislative power cannot directly reach the property or vested rights of the citizen by providing for their forfeiture or transfer to another without trial and judgment in the court; for to do so would be the exercise of a power which belongs to another branch of the government, and is forbidden to the legislature." i This sentence fairly states the law as held by Illinois. in common with the other states of the Union. $ 509. A corporation may, by willful malfeasance or nonfeasance, forfeit its franchises, which may be seized by the state on a judgment upon and information filed and prosecuted by the state, or its proper agent. At common law, at the dissolution of a corporation its property reverts to the grantor, except that in this country the creditors have, in effect, a first mortgage upon the same. Many charters in this country have been declared forfeited. § 510. The question as to the forfeiture of a charter, and the property acquired thereunder, may be tried by a writ of quo warranto or scire facias. The former is the more usual method. The supreme court holds that a proceeding by quo warranto is a "prosecution,” within the intent of statute, and must therefore be carried on "in the manner and by the authority of the people of the state of Illinois." 2 1 Newland v. Marsh, 19 Ill. 382. 2 For a thorough discussion of this subject see Wilmans v. Bank of Illinois, 1 Gilm. 667; People v. Mississippi and Atlantic R. R. Co. 13 Ill. 66; Wright v. People, 15 Ill. 417; People v. Ridgely, 21 Ill. 65; Curran v. Arkansas, 15 How. 312; Bacon v. Robertson, 18 How. 480; State v. Bailey, 16 Ind. 46; Silver Lake § 511. While it is too plain for doubt that the for feiture of the franchises and property of a corporate body cannot be effected without judicial proceedings, it by no means follows that the legislature has not the power to lay down general rules for the conduct of cor porate business. On the contrary, the authorities are Bank v. North, 4 Johns' ch. N. Y. 370; Bank of Marietta v. Pin dall, 2 Rand. Va. 465; Clarke v. New Jersey Co. 1 Stor. C. C. 531 · British Co. v. Ames, 6 Met. Mass. 391; Savage Manuf. Co. v. Armstrong, 24 Me. 34; Day v. Essex Bank, 13 Vt. 97; Terret v. Taylor, 9 Cranch. 43; Commonwealth v. Commercial Bank, 28 Penn. St. 383; Aurora Cɔ. v. Holthouse, 7 Ind. 59; Guaga Iron Co. v. Dawson, 4 Blackf. 202; Libby v. Hodges, 9 N. H. 394 · Bank of Augusta v. Earle, 13 Peters, 519; Lucas v. Bank of Georgia, 2 Stew. 147; Vermont v. Turnpike Co. 11 Vt. 431; Commonwealth v. U. S. Bank, 2 Ashmead, 349. No legislation making detail provision for the enforcement of the right to exact this extreme corporate penalty exists. A bill was before the twenty-eighth general assembly in the winter of 1873, entitled, "An act to prevent unjust discrimination in the rates charged by railroads in this state for the tranportation of freight cars, and to encourage competition in freighting,” containing the following provision: Any railroad corporation which shall be five times consecutively convicted of a violation of this act shall be deemed and held to have forfeited its franchises and property; and such corporation, so offending, may be proceeded against by the state's attorney in any circuit or county through or into which its road may run, either by scire facias, or upon an information in the nature of a quo warranto, to judgment of ouster. And in case of forfeiture of property and franchise, and judgment of ouster, the court shall fix the time, place and conditions for the sale of the same, at which time and place said corporate property and franchise shall be sold to the highest bidder giving security satisfactory to the court for the proper management of said road and the lawful conduct of all the business pertaining to said corporation. The proceeds of such sale, after defraying the costs and expenses of the suit or suits for forfeiture, shall be paid into the treasury of the state. |