The Flint and Fentonville Plank-road Co. v. Woodhull.

is conceded that the parties concerned are entitled to a judicial investigation afterward, and upon an issue properly framed for that purpose, may show the act invalid by establishing the fact that no violation of the charter has taken place, and that the legislature must have acted under mistake or in misapprehension of the facts. The first of these positions must be conceded. The right of the legislature to repeal, when it was properly made to appear that a breach of the charter had taken place, cannot be questioned.

The second will be equally indisputable, if the main point be established, that the inquiry to determine the violation of the charter is legislative in character. The legislature will not only choose its own modes of collecting information to guide its legislative discretion, but from due courtesy to a co-ordinate department of the government, we must assume that those methods were the suitable and proper ones, and that they led to correct results. And if the records show no investigation, we must still presume the proper information was obtained; for we must not suppose the legislature to have acted improperly, unadvisedly, or from any other than public motives, under any circumstances, when acting within the limits of its authority. Baltimore v. State, 15 Md. 376; Lusher v. Scites, 4 W. Va. 11; People v. Draper, 15 N. Y. 545, 555; Wright v. Defrees, 8 Ind. 302; Ex parte McCardle, 7 Wall. 514; Bradshaw v. Omaha, 1 Neb. 16; Humboldt Co. v. Churchill Co. Comm'rs, 6 Nev. 30.

The third point must also be conceded to this extent: that a legislative act, not violative of any constitutional principle, must be its own sufficient and conclusive evidence, when assailed, of the justice, propriety, and policy of its passage. We ourselves acted upon this principle, in People v. Mahaney, 13 Mich. 484, and it is not dis puted anywhere so far as we are aware.

But there lies at the basis of all these propositions the question whether the determination that the charter has been violated, is in truth legislative in character. The defendant affirms that it is; the plaintiff insists that it is properly and essentially judicial. This point decided one way, disposes of the case; decided the other, it is followed by others of a difficult and somewhat delicate nature, which would necessarily be considered before a conclusion could be reached on the merits.

Now it must be conceded that, if the act in question is not judicial in character, it is at least strikingly analogous. There is a

The Flint and Fentonville Plank-road Co. v. Woodhull.

question which is or may be disputed, there are adverse parties, there are private interests involved, there is evidence to be received, there is the fact to be found, there is punishment to be inflicted, there is a forfeiture to be enforced. Legislative action does not often, tosay the least, include all, or many, of these elements. It may affect private rights incidentally, but it does not often proceed to pass directly upon the controversies between the State and individuals. Ir some cases the legislature has judicial power, because it is incident and essential to the discharge of legislative functions. Such is its power to determine upon the election and qualification of its members, and the power to punish for contempts of its authority. In these cases it is entitled to all the presumptions which support the action of courts, and having no authority set over it, to review its determinations, they must be accepted everywhere as correct and conclusive. People v. Mahaney, 13 Mich. 481; Anderson v. Dunn, 6 Wheat. 204; Hiss v. Bartlett, 3 Gray, 468; Burnham v. Morrissey, 14 id. 226; State v. Matthews, 37 N. H. 450; State v. Jarrett, 17 Md. 309; Lamb v. Lynd, 44 Penn. St. 336. But every judgment must have something preceding it to put the judicial body in motion; the sentence, by any authority pronounced, however august or powerful, will be a mere idle fulmination, if there was no lis mota to base it upon. The order of a legislative body for the punishment of an individual would be merely idle and void, unless somewhere in the record there appeared a cause alleged which subjected him to its jurisdiction for such punishment.

It is conceded in the present case that the fact of corporate abuse was to be found before the charter could be taken away. The repealing act, however, is only a sentence. It inflicts the penalty of corporate death, without in any way declaring or intimating, except by the penalty, that the corporation has been found worthy of death. It is precisely such an act as might have been passed had the legislative power been unlimited and untrammeled. The legislature had power to repeal for cause, and was prohibited from repealing without cause; it repeals, expressing no cause, and it is said the cause must be inferred. Then comes what is to have the effect of a punishment, though it does not purport to be such, and only on its face appears to be the withdrawal of a privilege; and yet, as there was a right assured and no mere privilege to be withdrawn, it is supposed we must infer, first, that a punishment was designed, and then, from the punishment infer the guilt, the accusation, the trial, and

The Flint and Fentonville Plank-road Co. v. Woodhull.

the conviction. Having thus assumed the conclusion to begin with, we must next, from the conclusion, assume that the premises existed to deduce it from. This is certainly much more than can be assumed in support of the action of any court. In the courts, there must at least be an accusation and a condemnation, before there can be the infliction of any penalty. To infer cause where none is assigned, in the taking away of private rights, is to take up and adopt the arguments in favor of the arbitrary arrests under the command of Charles I. His warrants assigned no cause, and, therefore, it was argued, sufficient cause must be presumed. If this repealing act is good as a judgment of abuse of corporate privileges, then Sir NICHOLAS HYDE was correct in holding that he could not release on habeas corpus the parties committed to prison by the special command of the king for refusing to submit to his illegal exactions. The king had power to order a committal for cause; no cause was expressed; therefore a sufficient cause was to be assumed. Darnel's case, 3 State Trials, 1; Broom's Const. L. 162.

The defendant refers to certain cases in support of his positions, of which The Miner's Bank v. The United States, Morris, 482; S. C., 1 Greene (Iowa), 553, goes to the full extent of holding that such a legislative act is not only valid, but is conclusive that cause existed for its passage. This case, however, stands alone, and was not very much insisted upon, on the argument. The cases of Crease v. Babcock, 23 Pick. 334, and Erie & N. E. R. R. Co. v. Casey, 26 Penn. St. 287, are more relied upon as laying down the correct rule. The Pennsylvania case is most directly in point, and as it appears to have been carefully considered, the conclusion is entitled to great respect, notwithstanding those eminent jurists, Mr. Chief Justice. LEWIS and Mr. Justice WOODWARD, dissented. In that case the corporation was protected by a clause in its charter similar to the one under consideration here, and the legislature had thought proper to act upon it by repealing the charter, without any preliminary judicial investigation. In stating the position assumed in support of the repealing act, Mr. Justice BLACK says: "For the defendant, it is insisted that the repealing act is itself not only evidence, but conclusive evidence, that the company had previously committed some abuse or misuse which justified the repeal. No case has been cited which denies this doctrine in terms; and it was held for the true rule by the supreme courts of Iowa (1 Greene, 561) and of New York (19 Barb. 81). But I do not see clearly the

The Flint and Fentonville Plank-road Co. v. Woodhull.

principle on which it can stand. A legislative body in a matter like this is known to proceed without formal notice, without specific accusation, and without opportunity to answer. There is no confronting of the parties with the witnesses, nor any thing that can be called a hearing or trial. It would, therefore, seem unjust to hold that a legislative act is, like a judicial sentence, conclusive of every fact which ought to have been found before it was passed. It might more plausibly be likened to an award made by an umpire to whom both parties have agreed that the subject should be referred." "For myself," he says, "I incline to the opinion that, when the constitutional power of the legislature to pass a law depends on matter of fact, the party to be affected by it ought to have an opportunity afterward of showing how the fact is." E. & N. E. R. R. Co. v. Casey, 26 Penn. St. 316.

Having thus expressed the opinion that legislative conclusions on questions of fact were subject to review in the courts, the learned judge goes further, and proceeds to lay down rules for the legislative guidance in determining the causes which are to justify the legislature in acting at all. The legislature is not to judge finally for itself what is abuse or misuse of corporate privileges by a company; but,

1. The illegal act must be positive. A mere omission, like the failure of a bank to make its annual returns, is not enough.

2. A disregard of the charter, which is injurious only to private interests, and which, therefore, admits of private compensation, is not, he thinks, within the fair meaning of the words. It must be some conduct which infringes upon a right reserved by a State for the benefit of the public.

3. It must be willful; that is, not involuntary, accidental or the consequence of mere mistake of fact.

4. It must not be the mere transgression of the act of incorporation by a subordinate officer, or agent without authority, express or implied, from the board of directors. Id. 319.

Thus the majority of the supreme court of Pennsylvania lays down the rules of law which are to control the legislature in the exercise of its legislative authority, and at the same time declares the right of the court to review the conclusions of the legislative body in matters of fact. With great respect for that eminent tribunal, we are unable to understand why this is not a setting of the court above the legislature, as an appellate tribunal in matters both

The Flint and Fentonville Plank-road Co. v. Woodhull.

of law and of fact, in a manner which wholly ignores the division of powers in the constitution, and is quite inconsistent with the harmonious operation of the machinery of government. It is not consistent with legislative independence and dignity, that the courts should assert a right to sit in judgment upon legislative action, or to attribute to the legislature erroneous or oppressive conduct in the exercise of any of its proper and legitimate functions. These two departments of the government being co-ordinate, and neither of them occupying a position subordinate to the other, the conclusions of each must be accepted by the other as proceeding from good motives, and as warranted by the proper information. It could only be productive of endless discord and confusion, not to say of jealousies and conflicts of authority, if the legislature was to review and set aside the judgments of the courts, or the courts to allow parties to appeal to them from the conclusions the legislature had reached, in determining upon the propriety of passing or declining to pass a proposed law. Careful endeavor has been made to prevent any such jealousies and conflicts when, in framing our constitutions, a line of distinction has been drawn between legislative and judicial functions, and the departments to which these functions respectively have been confided have been intrusted with no power to pass that Line. It is, therefore, in the highest degree impertinent and obtrusive, when either department undertakes to advise the other, that in the exercise of its proper functions it has acted unwisely and indiscreetly; has misjudged the facts or perverted the law; and its action must be still more offensive, if it entertains the appeal of parties from the decisions of the other, when acting within a province which was set apart to be peculiarly under its jurisdiction and control.

Moreover, there is in the nature of the case, and the difference in the manner in which legislative and judicial functions are performed, reason sufficient to demonstrate the impossibility of a proper review by the one department of the decisions the other has made. Legislators have a right to act upon their own knowledge and observation, upon hearsay, upon information derived from the public press, upon the ex parte petitions of interested parties, upon any thing, in short, which satisfies their judgment; and public opinion is one of the most important facts to be considered in determining upon the propriety or advisability of a proposed law. Even an unreasonable prejudice, if general or wide-spread, may sometimes