Page:Federal Reporter, 1st Series, Volume 8.djvu/208

194 ifEDEEAIi BEPOiBTBB. ■ �the hands of congifess; and it was not to be expected that congress would devoive the duty of that protection on any other than one of its Gwn tribunals. Accordingiy it was but reasonable that the act should require the bridge conipany to submit itself to the jurisdictiou of a court of the United States, within •whose territorial jurisdiction the bridge was to be, whenever controversies should arise concerning the rights of the railway companies, and involving the measure of protection declared by congress. �. But the power to intervene, and declare what compensation the bridge conipany should be permitted to charge for the use of the bridge, involves the exercise of a high prerogative. The bridge Com- pany had been authorized by the legislatures of Canada and New York to charge suchtolls ao the judgment of its officers might war-' rant, and this right constituted the essential value of the franchise. It is one of which the Company should not be deprived except by a clear and unambiguous declaration to that effect. The intention of congress to interfere to such a vital extofit with the franchises of the corporation ought not to be and will not be inferred if the language of the act is consistent with a less violent pilrpose. Ordinarily it is the legislative department that prescribes the tolls which may be charged in the enjoyment of a franchise, and this is usually done by fixing a maximum ' beyond which the grantee oannot go. It is sometimes, however, a judicial duty to deterniine what'are reasonable tolls. But where, as here, that question is to be resolved by determining what return shall be allowed to the bridge Company upon its investment, — an investment involving peculiai risks, and wholly experimental finan- cially, — and the court must decide without precedent or guide, or the light of usage, a duty is imposed which approaches so nearly to the exercise of an arbitrary discretion that it lies upon the very confines of judicial power. �Eecurring to the language of the act, it appears that congress adopted the precise phraseology which is found in both the Canadian and New York acts of incorporation to prevent unfriendly discrimina- tion by the bridge company between the varions railway companies that might desire to use the bridge, and give the railway companies equal facilities in its use. Both the New York and Canadian acts declare that the railway companies using the bridge "shall have, and be entitled io, equal rights and privileges in the passage of said bridge, and in the use of the machinery and fixtures thereof, and of all the approaches thereto," and the aot of congress adds "under and ��� �