ing." It does not say that he shall be exempt from prosecution, but only, in case of prosecution, his testimony cannot be used against him.

The two things are different, and cannot be confounded. The difference is illustrated by the different constructions this court has given to section 860 of the Revised Statutes and the provisions of the act of Congress of February 11, 1893, c. 83, 27 Stat. 443.

In Counselman v. Hitchcock, 142 U. S. 547, it was contended that the protection of section 860 was that of the Constitution, and it was sought to compel a witness to testify to matters which he claimed would incriminate him. This court held against the contention, and the witness was justified. We did not attempt to extend the section to the prohibition of criminal prosecutions, but confined its immunity to that which was expressed, to wit, that the testimony given should not "be given in evidence, or in any manner used, against him or his property or estate, in any court of the United States, in any criminal proceeding.

The act of February 11 was different and the ruling upon it was different. It provided as follows:

"But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise, before said Commission, or in obedience to its subpoena, or the subpoena of either of them or in any such case or proceeding."

It was held in Brown v. Walker, 161 U. S. 591, that the act was virtually one of "general amnesty," and the protection of the Constitution was "fully accomplished by the statutory immunity." As in Counselman v. Hitchcock a witness before a grand jury which was investigating alleged violations of the Interstate Commerce Act, claimed that questions addressed to him "would tend to accuse and incriminate him." Upon proceedings in the District Court he was adjudged guilty of contempt and ordered to pay a fine of five dollars and to be

taken into custody, until he should answer the question. He petitioned the Circuit Court for writ of habeas corpus, and from the judgment remanding him to custody prosecuted an appeal to this court. It was held that he was compellable to answer.

In the case at bar, as we have already said, plaintiff in error did not claim the protection afforded him by the bankrupt act. He made no objection to the use of the testimony which he gave before the referee, nor does he now urge its use as error. He broadly claimed and now claims exemption from prosecution. For the reasons we have given the claim is untenable.

Judgment affirmed.

TERRE HAUTE AND INDIANAPOLIS RAILROAD COMPANY v. INDIANA ex rel. KETCHAM.

ERROR TO THE SUPREME COURT OF THE STATE OF INDIANA.

No. 204. Argued April 29, May 2, 1904.-Decided May 31, 1904.

Where the state court has sustained a result which cannot be reached except on what this court deems a wrong construction of the charter without relying on unconstitutional legislation this court cannot decline jurisdiction on writ of error because the state court apparently relied more on the untenable construction than on the unconstitutional statute. A provision in a charter of a railroad company that the legislature may so regulate tolls that not more than a certain percentage be divided as profits to the stockholders and the surplus shall be paid over to the state treasurer for the use of schools, held, in this case to be permissive and not mandatory and that until the State acted or made a demand the railroad company could act as it saw fit as to its entire earnings. When, therefore, the company surrendered its original charter and accepted a new one without any such provision and there had up to that time been no attempt on the part of the State to regulate tolls nor any demand made for surplus earnings the company was free from liability under the original charter, and subsequent legislation attempting to amend its charter or the general railroad law would not affect its rights.

THE facts are stated in the opinion of the court.

Argument for Plaintiff in Error.

194 U. S.

Mr. Lawrence Maxwell, Jr., and Mr. John G. Williams, with whom Mr. Samuel O. Pickens was on the brief, for plaintiff in error:

The State, having accepted an unconditional surrender of the company's original charter, could not thereafter impose an obligation upon the company by virtue of power contained in the surrendered charter. The surrender was equivalent to the repeal of the charter with the consent of the company. The repeal of a statute takes away all powers which depend upon the statute, that have not been exercised and are not reserved. Surtees v. Ellison, 9 B. & C. 750; Moor v. Seaton, 31 Indiana, 11; Kay v. Goodwin, 6 Bing. 576, 582; Miller's Case, 1 W. Bl. 451; Yeaton v. United States, 5 Cranch, 281; Schooner Rachel v. United States, 6 Cranch, 329; Ex parte McCardle, 7 Wall. 506, 514; Railroad Co. v. Grant, 98 U. S. 398, 401; Gurnee v. Patrick County, 137 U. S. 141; In re Hall, 167 U. S. 38; Bank of Hamilton v. Dudley's Lessee, 2 Pet. 492; Clapp v. Mason, 94 U. S. 589; Mason v. Sargent, 104 U. S. 689; Sturges v. United States, 117 U. S. 363; Steamship Co. v. Joliffe, 2 Wall. 450; Aspinwall v. Commissioners, 22 How. 364; Baltimore &c. S. R. R. Co. v. Nesbit, 10 How. 395; Lamb v. Schottler, 54 California, 319, 323; Terry v. Dale, 27 Tex. Civ. App. 1; Cushman v. Hale, 68 Vermont, 444; Van Inwagen v. Chicago, 61 Illinois, 31; Curran v. Owens, 15 W. Va. 208; Dillon v. Linder, 36 Wisconsin, 344; Bennett v. Hargus, 1 Nebraska, 419; Kertschacke v. Ludwig, 28 Wisconsin, 430; Rood v. C. M. & St. P. Ry. Co., 43 Wisconsin, 146; Sutherland Stat. Cons. §§ 162, 163; 26 Am, & Eng. Ency. of Law (2d ed.), 745, 747, 752; Endlich, Interp. Stats. §§ 478, 480; Hardcastle, Stat. Law (3d ed.), 374.

The judgment of the Superior Court of Marion County in 1876 created a vested right which it was not within the power of the legislature to impair. McCullough v. Virginia, 172 U. S. 102, 123; Memphis v. United States, 97 U. S. 293; Atkinson v. Dunlap, 50 Maine, 111, 115; Davis v. Menasha, 21 Wisconsin, 497, 502; Lancaster v. Barr, 25 Wisconsin, 560;

194 U.S.

Argument for Plaintiff in Error.

Beaupre v. Hoerr, 13 Minnesota, 366; Germania Savings Bank v. Suspension Bridge, 159 N. Y. 362, 368; Gompf v. Wolfinger, 67 Ohio St. 144, 152; McCabe v. Emerson, 18 Pa. St. 111; Griffin's Executors v. Cunningham, 20 Grat. 31; Wieland v. Schillock, 24 Minnesota, 345; Dorsey v. Dorsey, 37 Maryland, 64, 74.

The legislation of 1897 does not provide a remedy for a preëxisting cause of action, but creates a new cause of action. Commissioners v. Rosche Bros., 50 Ohio St. 103, 112.

If the company was indebted to the State prior to 1897, there was ample authority for a suit to collect the debt. State ex rel. v. Denny, 67 Indiana, 148, 159; Carr v. State ex rel., 81 Indiana, 342; Board v. State, 92 Indiana, 353; United States v. San Jacinto Tin Co., 125 U. S. 273, 278.

The opinion of the Supreme Court of Indiana concedes that there was no cause of action in 1875, and that the present suit could not be maintained but for the legislation of 1897.

The effect given to the legislation of 1897 by the judgment under review is to destroy the vested right of the company under the judgment of 1876 in its favor, and to impair the obligation of the contract of surrender of 1873.

In determining whether the legislation of 1897 impairs the obligation of prior contracts between the company and the State, or destroys its vested rights, this court will construe the contracts for itself, and will determine the effect thereon of the subsequent legislation. Mobile & Ohio R. R. v. Tennessee, 153 U. S. 486, 492; McCullough v. Virginia, 172 U. S. 102, 109; Wilson v. Standefer, 184 U. S. 399, 411; Yazoo & Miss. R. R. v. Adams, 180 U. S. 41; Citizens' Bank v. Parker, 192 U. S. 73, 85.

The statutes of 1897 are all repugnant to the Constitution of the United States. The act of January 27, without con· stitutional right and in pursuance of the authority of a charter which had been surrendered twenty-four years before, required the company to account to the State for its earnings and private property commencing fifty years back. The act of Febru

Argument for Defendant in Error.

194 U. S.

ary 18 declared the contract of surrender made twenty-four years before to be inoperative. The act of February 24 undertook to amend the charter, which never was subject to amendment and which, moreover, had been surrendered twentyfour years before, by imposing new and different obligations and declaring that the liability of the company should "be the same as though this amendment had been originally a part of the charter of said railroad and as though a suit to enforce such accounting had been prosecuted prior to the acceptance by said railroad company of the general railroad law of the State." The act of March 4 appropriated the company's private property to the use of the State and directed the Attorney General to sue for its recovery.

The company never was liable to account to the State for surplus earnings, in the absence of legislation regulating its tolls. This was the thing adjudged by the Superior Court of Marion County in 1876. The adjudication of a question of law, such as the construction of a contract, is as binding as the adjudication of an issue of fact. Tioga Railroad v. Blossburg &c. Railroad, 20 Wall. 137; New Orleans v. Citizens' Bank, 167 U. S. 371, 396; Birckhead v. Brown, 5 Sandf. 134, 149.

What was adjudged in 1876 may be shown by parol proof, and is established by the opinion of the Superior Court of Marion County in sustaining the demurrer to the complaint. Russell v. Place, 94 U. S. 606; Washington Gas Co. v. District of Columbia, 161 U. S. 316, 329; Miles v. Caldwell, 2 Wall. 35, 42; Bottorff v. Wise, 53 Indiana, 32; Packet Company v. Sickles, 5 Wall. 580, 590; Doty v. Brown, 4 N. Y. 71'; Campbell v. Gross, 39 Indiana, 155, 159; Walker v. Chase, 53 Maine, 258; Wood v. Faut, 55 Michigan, 185; Carleton v. Lombard, Ayers & Co., 149 N. Y. 137; Hargus v. Goodman, 12 Indiana, 629; Campbell v. Cross, 39 Indiana, 155; Roberts v. Norris, 67 Indiana, 386; Birckhead v. Brown, 5 Sandf. 134 (N. Y. Superior Court); Spicer v. United States, 5 C. Cl. 34.

Mr. William A. Ketcham and Mr. Robert S. Taylor, with