Econlib

The Library

Other Sites

 Front Page arrow Titles (by Subject) arrow CHAPTER XV.: STATE REGULATION OF CORPORATIONS. - A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2

Return to Title Page for A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2

Search this Title:

Also in the Library:

Subject Area: Law
Topic: The American Revolution and Constitution

CHAPTER XV.: STATE REGULATION OF CORPORATIONS. - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


CHAPTER XV.

STATE REGULATION OF CORPORATIONS.

SECTION208.The inviolability of the charters of private corporations.
209.State control of corporations.
210.Freedom from State control, as a franchise.
211.Regulation of corporations in general.
212.Laws regulating rates and charges of corporations.
213.Regulation of foreign corporations.
214.Regulation of railroads.

§ 208.

The inviolability of the charters of private corporations.—

At a very early day, it was decided by the Supreme Court of the United States that the charter of a private corporation constituted a contract between the State and the stockholders or members of the corporation, by which the State, in consideration of the public benefit, and of the investment of capital in the corporate business, grants to these capitalists the power to act together as one legal personality, with corporate powers and liabilities, separate and apart from the individual responsibilities of the members. The opinion of Chief Justice Marshall, in the leading case on this subject,1 has been so often affirmed by the Federal courts, as well as by the State courts,2 that it may now be laid down as a settled principle of constitutional law, that an act of incorporation is such a contract between the State and the incorporators as is protected by the clause of the Federal constitution, which denies to the States the power to pass any law impairing the obligation of a contract.1 Any law, therefore, of a State which impairs the corporate rights, or which repeals, annuls or amends the corporate charter, against the wishes of the members of the corporation, impairs the obligation of a contract, and is consequently void.

But this has reference only to private corporations, i. e., corporations, which are composed of private persons. Although it is frequently stated by the courts that municipal corporations have a quasi-private character, their charters do not constitute contracts between the State and the municipality, which would preclude the repeal or amendment of the charters, or a curtailment of the charter powers, in accordance with the doctrine of the Dartmouth College case.2

Some illustrations, not intended to be exhaustive, may be added in explanation of the general principles herein set forth.

In the first place, the charter must be accepted, or the parties investing their capital in the enterprise must have entered upon the project, or must have made provision for the same. Where, therefore, corporations are formed under general incorporation laws, the provisions of those laws do not constitute contracts with a corporation, until the charter has been granted in compliance with the provisions of those laws. These incorporation laws may be changed at the pleasure of the legislature and subsequent incorporators cannot claim that the subsequent amendments to the incorporation law have impaired the obligation of a contract, because of prior contracts which they had entered into looking to incorporation. Thus, a New York statute authorized the purchasers of a railroad franchise, at a sale under foreclosure, to form a new corporation, with all the rights, powers and privileges of the old corporation. An amendment to this law imposed, as a condition precedent to the procurement of a new incorporation, the payment into the State Treasury of a sum, equal to one-eighth of one per cent of the proposed amount of capital. The authorization of incorporation, as just explained, was held not to be a contract in the constitutional sense, but was only a regulation of law, which could be amended at the will of the legislature, and parties applying subsequently for a charter must comply with the law as amended; although property rights may have been acquired previously, in reliance upon the law of incorporation remaining unchanged.1 And even where a special charter is granted to a corporation, the charter is always subject to amendments, contracting the corporate rights or increasing the corporate burdens, as long as the incorporators have not accepted the charter or acquired vested rights thereunder. In one case, in which this ruling was made, an amendment to the charter of a railroad was passed four days after the passing of the original charter, and at the same session of the legislature.1 Of the same character is the statutory right to issue stock in exchange for deposits, which is granted in a bank charter. The Supreme Court of the United States held that this provision did not create a contractual right, which was beyond modification by law.2

A subsequent statute cannot change the conditions, prescribed in the charter or in the incorporation laws under which the charter was obtained, which must be observed in procuring amendments to the charter;3 nor can the conditions, under which property is donated to an eleemosynary corporation, be changed by subsequent legislation; as where property and capital are donated for the maintenance of a certain kind of school or college, and a corporation is formed with the express power of receiving the gift and to carry out the purpose of the donor.4 So, likewise, is it beyond the power of the legislature to interfere by subsequent statute with the priority of liens, or other rights of the creditors of an existing corporation.5

In accordance with the ruling of the Supreme Court of the United States, in the Charles River Bridge v. Warren River Bridge,6 the grant of a franchise is universally held in this country not to be exclusive, unless it is expressly declared to be exclusive in the charter of incorporation or law, under which the franchise is acquired. In such a case, the grant of a parallel and competing franchise may be granted without impairing the vested rights of the first corporation, even though, through successful competition, the value of the first franchise may be seriously impaired or completely destroyed. But if the franchise is made by express terms of the law or charter to be exclusive, the subsequent grant of a competing franchise would be unconstitutional, as an impairment by subsequent law of the obligation of a contract. This has been held repeatedly in the case of street railways, whose charters contain express limitations of the power of the State or municipality to grant competing franchises to other street railway companies.1

The protection, which the principles of the Dartmouth College case afforded to private corporations, against any modification by subsequent laws of its charter rights and privileges, is very considerably reduced by the almost universal reservation to the State of the power to amend or repeal the charters of private corporations, which are subsequently granted.

It is now a very common statutory or constitutional provision, that all charters of private corporations are held subject to the power of the State to repeal or amend. Sometimes, this reservation is inserted in every charter; but this is not necessary. It has been repeatedly held that, where there is a general statutory or constitutional reservation of such power to amend or revoke all charters, the reservation of such power enters into and becomes a constituent of every charter contract, which is subsequently made by the legislature.2 If the reservation of the power to amend or revoke a charter is a constitutional provision, there is, of course, no discretion to the legislature. But if it is only a provision of the statutory incorporation law, it is within the power of the legislature, in granting a charter by special law, where special laws are constitutional, to except the particular charter from the operation of this reservation of the power to amend or revoke the charter.1 These cases, just cited, also hold that a statute, which reserves the right to amend or repeal a charter, applies to any subsequent renewal of an old expiring charter. But this is not true, where the statute does not expressly refer to renewals of charters. In such case, the renewed charter is as free from the reserved power to amend or repeal as was the original charter.2

But, even in the case of such a reservation, the charter cannot be so amended or repealed as to interfere with the vested rights of property, which the stockholders may have acquired by and through the corporation.3 But when the statutory amendment to a charter does not involve any practical confiscation of the rights of property of the corporation, it cannot be successfully attacked, it matters not how radical it may be. It has even been held that it is within the reserved power, to amend existing charters of private corporations, to impose upon the stockholders of such a corporation a personal liability to creditors, in double the amount of their stock in the corporation.4 And where a city gas company fails to carry out its obligations to a city to furnish light to all parts of the city, and to extend its supply pipes, make new connections, as the city grew, its exclusive franchise may be forfeited and the city be given the power to establish and maintain its own gasworks.1 In this connection, it must be borne in mind that franchise rights in real property, like ordinary rights therein, are acquired subject to the right of eminent domain by the State. In the exercise of the right of eminent domain, the property of a railroad may be appropriated by the State to a public use, as much so as may be the property of any natural person.2

Still, the statement of the text, that vested rights of property cannot be infringed by subsequent legislation, notwithstanding the reservation of the power to amend and revoke a charter, is supported very generally by the authorities. Thus a provision, that no toll bridge or ferry shall be established within one mile immediately above or below an existing ferry or toll bridge, becomes a part of the charter rights of a toll bridge or ferry company, and cannot be abrogated by a subsequent statute, except in the cases, which the statute expressly excepts, if there be such exceptions.3 It is also an unconstitutional impairment of the obligation of a contract for a constitutional convention by subsequent enactment to repeal a statute which granted to a railroad certain vacant public lands within a certain defined area, and to declare such lands to be open to purchasers, settlers, and holders of genuine certificates.4 So, also, would a law be unconstitutional, which, in providing for the sale of the franchise of an insolvent street railway, provided that the cost of the obligation, instead of the amount set forth in the contract, shall be the measure of liability to the creditors.5

§ 209.

Police control of corporations.—

It has been supposed that, because it is the settled law of this country that the legislature of a State cannot repeal or amend the charter of a private corporation, unless the power is expressly reserved, these perpetual corporations are placed beyond the reach of the ordinary police power of the State; that, while all the rights of the natural person are subject to the exercise of the police power in the interest of the public, these corporations are free from this burden, because the slightest police regulation operates as a restriction of the enjoyment of the corporate franchise, and hence impairs the obligation of a contract. Such a construction of the operation of this constitutional provision is not only scientifically absurd, but it is in violation of the ordinary rules of constitutional construction, which provide for a strict construction of all grants by the State to the individual. Apart from the question whether the State can barter away its police power,1 the intention of a legislature to place a private corporation beyond the reach of the police power of the State—to grant to a corporation the right to do what it pleases in the exercise of its corporate powers, it matters not how much injury is inflicted upon the public, and yet be subject to no control or restraint, which is not provided by the laws in force when the charter was granted—is so manifestly unreasonable that we cannot suppose that the legislature so intended, unless this extraordinary privilege is expressly granted. It cannot be implied from the grant of the charter. The subjection of existing corporations to new police regulations does not involve a repeal or amendment of the charters; for an act of incorporation simply guarantees to the incorporators the right to act and do business as a corporate body, subject, of course, to the laws of the land, and the legitimate control of government. The legal status of the corporation, as an artificial person, does not differ from the natural person, except so far as the charter may reserve or grant special privileges or impose peculiar burdens. As a general proposition, corporations are included under the name of “persons” in coming within the operation of the law. In order that the law may apply to corporations, it is not necessary that they be expressly named.1 Thus general laws, relating to the validity or enforcement of contracts, are applicable to corporations, although persons are only mentioned.2 So, also, are corporations included in the operation of laws relating to real estate, in which there is reference only to “inhabitants” and “occupiers.”3 Corporations are taxpayers, like natural persons, although the tax laws should speak only of “persons,” “individuals,” or “inhabitants;”4 and a law, relating to practice or procedure, which refers to “persons” or “residents,” would also include corporations within its operation.5

And so, also, are corporations included within the operation of the constitutional guaranties of the sanctity of the rights of property.1

But it has been held that this is not the case in regard to the constitutional guaranty of the liberty of contract. This guaranty is held to be reserved to natural person, persons of flesh and blood, and not to the artificial legal personality, the corporation. On this principle, it is held that while certain police regulations of the liberty of contract may be unconstitutional when they are enforced against natural persons, they are or may be valid as against corporations; that corporations enjoy only that liberty and those powers of corporate action, which the laws allow and no others. It is held, that, where the power to amend or revoke a charter is reserved to the State, the plea, that a police regulation violates some constitutional right, will not restrain its enforcement against the corporation, unless it takes away or infringes some vested right of property.2 It has thus been held that no vested right is recognized in a corporation, where its charter or the general incorporation law prescribes a special period of limitation for actions against the corporation. Such provision may be changed by subsequent legislation at the pleasure of the legislature.3

But where the law, on account of the peculiar character of the corporation as a legal entity, relates to matters which are connected with and can only concern natural persons, the law cannot apply to corporations. For example, a corporation cannot be a rebel within the operation of the confiscation acts of the United States.1

The act of incorporation, therefore, is a governmental act of creation. It creates a legal, artificial personality which becomes the subject of rights, and, like any other legal personality, holds these rights subject to the ordinary laws of the State. Unless there is an express reservation of a freedom from the restraint of police regulations, it would be an exceedingly liberal, and hence wrongful, construction of the constitutional protection, against the impairment of the obligation of contracts, to place corporations above and beyond the ordinary police power of the State. As a general proposition, the principle here advocated has been recognized and adopted by the courts generally. It is only in the application of the principle to a particular case that any doubt as to its correctness is felt or expressed.

The leading case on the subject is that of Thorpe v. Rutland, etc., R. R. Co.,2 in which Judge Redfield has discussed fully and at length the police control of corporations. In referring to the general police power of the State by which persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health and prosperity of the State, of the perfect “right in the legislature to do which no question ever was, or upon acknowledged general principles, ever can be made, so far as natural persons are concerned,” he says:—

“It is certainly calculated to excite surprise and alarm, that the right to do the same in regard to railways should be made a serious question. This objection is made generally upon two grounds: 1. That it subjects corporations to a virtual destruction by the legislature; and 2. That it is an attempt to control the obligation of one person to another, in matters of merely private concern. * * *

“All the cases agree that the indispensable franchises of corporations cannot be destroyed or essentially modified. This is the very point upon which the leading case of Dartmouth College v. Woodward, was decided, and which every well considered case in this country maintains. But when it is attempted upon this basis to deny the power of regulating the internal policy of railroads, and their mode of transacting their general business, so far as it tends unreasonably to infringe the rights or interests of others, it is putting the whole subject of railway control quite above the legislation of the country. * * * This is a control by legislative action, coming within the operation of the maxim, sic utere tuo ut alienum non lœdas, and which has always been exercised in this manner in all free States, in regard to those whose business is dangerous and destructive to other persons, property, or business. Slaughterhouses, powder mills, or houses for keeping powder, unhealthy manufactories, keeping of wild animals, and even domestic animals, dangerous to persons or property, have always been regarded as under the control of the legislature. It seems incredible how any doubt should have arisen upon the point now before the court. And it would seem it could not, except from some undefined apprehension, which seems to have prevailed to a considerable extent, that a corporation did possess some more exclusive powers and privileges upon the subject of its business, than a natural person in the same business, with the equal power to pursue and accomplish it, which I trust has been sufficiently denied.”1 * * *

Several cases have recently taken the advanced, but apparently sound position, that,—certainly, where the power to amend, alter, or repeal the charters of private corporations is reserved by the constitution or by statute,—the private corporation cannot appeal to constitutional limitations for protection against any hostile or obnoxious police regulation; except, possibly, to the constitutional principle of uniformity and equality, whenever such principle is violated by legislation, discriminative between corporations of the same character. These cases hold that the natural rights which the constitutions protect from adverse and excessive regulation, belong to natural persons, and cannot be claimed by corporations, which are creatures of positive law, and have only those powers which are conferred upon them by positive law. The first case I refer to is from Arkansas.1 An Arkansas statute provided that no employer shall for any reason make any abatement or deduction from the wages of an employee, when he is discharged or when he refuses to work; and that they must pay the wages due on the work on the day of discharge. The Supreme Court of Arkansas held the statute to be constitutional, so far as it applied to employing corporations, but unconstitutional as to those employers who were natural persons. The argument of the court was in part as follows:—

“The legislature cannot regulate or restrain the right of individuals to contract by making it unlawful for them to agree with each other that wages shall be paid at any specified time subsequent to the day on which the labor by which they are earned shall be completed, or that the price of property sold shall be paid on a day subsequent to the sale. Such a contract is necessarily harmless, of purely and exclusively private concern, and cannot affect any one except the parties. * * * But what is true of persons is not always true of corporations. Natural persons do not derive the right to contract from the legislature. Corporations do. They possess only those powers or properties which the charters of their creation confer upon them, either expressly or as incidental to their existence, and these may be modified or diminished by amendment, or extinguished by the repeal of the charters.”

In construing a similar statute, regulative of the labor contract, the Supreme Court of Maryland, in Shaffer & Munn v. Union Mining Co.,1 said:—

“It being conceded that the legislature, when it incorporated the Union Mining Company, reserved the right to alter or amend its charter at pleasure, there can be no doubt that the legislature could enact a law prohibiting the corporation from paying its employees otherwise than in money, and that it could forbid the corporation from making contracts with them for payment in anything but money. * * * A corporation has no inherent or natural rights like a citizen. It has no rights but those which are expressly conferred upon it, or are necessarily inferrible from the powers actually granted, or such as may be indispensable to the exercise of such as are granted.”

So, likewise, the Supreme Court of Rhode Island held a law to be constitutional, which required all private corporations, with certain reservations, to pay their employees weekly, on the ground that the act in question was a permissible amendment to the charter of every manufacturing corporation, under the reserved power to amend or repeal the charters of private corporations. Said the court:—

“But for the power granted by the legislature, corporations could not make any contract, and we see no reason why the legislature, under its reserved power to amend charters, cannot limit the power to contract in the future just as they might have fixed it in the original charter, if any reasonable purpose is to be subserved thereby.”1

§ 210.

Freedom from State control, as a franchise.—

The claim has often been made that, if it is stipulated in the charter of a corporation that it shall not be subjected to a specific police regulation, such a contract is binding upon all the subsequent legislatures, and they are powerless to prevent an injury to the public by instituting this regulation. In other words, it is claimed, that the State may, by contract irrevocably preclude itself from the exercise of its ordinary police power, it matters not what evil consequences to the public may thereby be prevented. The recognition of this doctrine would, if often acted upon, certainly hamper the government in its effort to protect its citizens from threatening dangers. The dangerous character of the doctrine is particularly noticeable in its application to the police control of corporations. The franchise of the corporation, even if it consists only in the privilege of acting and doing business in a corporate capacity, enables it, as against the private individual, to occupy a vantage ground; its power for harming and controlling the rights and interests of individuals is thereby greatly increased, and the necessity for police control, in order that the rights of individuals may not be exposed to the danger of trespass, is proportionately increased. To recognize in a legislature the power by a contract to tie the hands of all future legislatures, and deprive them of the power to interpose regulations that may become needful as a protection to the public against the aggressions or other unlawful acts of the corporation, would be a specimen of political suicide. It has, therefore, been often decided, in the American courts, Federal and State, that the State cannot barter away, or in any way curtail its exercise of any of those powers, which are essential attributes of sovereignty, and particularly the police power, by which the actions of individuals are so regulated as not to injure others; and any contract, by which the State undertakes to do this, is void, and does not come within the constitutional protection.1

In a late case, it has been definitely settled that the power to regulate the actions of individuals and corporations, for the promotion of the public health and the public morals, can never be restricted or suppressed by any contract or agreement of the State. In delivering the opinion of the court, ——, J. says: “The appellant insists that, so far as the act of 1869 partakes of the nature of an irrepealable contract, the legislature exceeded its authority, and it had no power to tie the hands of the legislature in the future from legislating on that subject without being bound by the terms of the statute then enacted. This proposition presents the real point in the case. Let us see clearly what it is. It does not deny the power of that legislature to create a corporation, with power to do the business of landing live stock and providing a place for slaughtering them in the city. It does not deny the power to locate the place where this shall be done exclusively. It does not deny even the power to give an exclusive right, for the time being, to particular persons or to a corporation to provide this stock landing, and to establish this slaughter-house. But it does deny the power of that legislature to continue this right so that no future legislature, not even the same body, can repeal or modify it, or grant similar privileges to others. It concedes that such a law, so long as it remains on the statute book as the latest expression of the legislative will, is a valid law, and must be obeyed, which is all that was decided by this court in the Slaughter-house cases. But it asserts the right of the legislature to repeal such a statute, or to make a new one inconsistent with it, whenever, in the wisdom of such legislature, it is for the good of the public it should be done. Nor does this proposition contravene the established principle that the legislature of a State may make contracts on many subjects which will bind it, and will bind succeeding legislatures for the time the contract has to run, so that its provisions can neither be repealed, nor its obligations impaired. The examples are numerous where this has been done, and the contract upheld. The denial of this power, in the present instance, rests upon the ground that the power of the legislature intended to be suspended is one so indispensable to the public welfare that it cannot be bargained away by contract. It is that well known but undefined power, called the police power. * * * While we are not prepared to say that the legislature can make valid contracts on no subject embraced in the largest definition of police power, we think, that in regard to two subjects so embraced, it cannot by any contract, limit the exercise of those powers to the prejudice of the general welfare. These are the public health and the public morals. The preservation of those is so necessary to the best interests of the social organization, that a wise policy forbids the legislative body to divest itself of the power to enact laws for the preservation of health and the repression of crime.”1

The same conclusion is reached in respect to the legislalative control over contracts which a corporation may make with individuals. Such contracts are ever subject to the future exercise of the police power, in the promotion of the public welfare. This is particularly true in the case of quasi-public corporations, such as railroads.1

On the principle, that the State cannot barter away its police power, it has been held lawful for the State to prohibit all lotteries, and to apply the law to existing lottery companies.2 So, also, is it possible for the State to prohibit the sale and manufacture of liquor, although it has previously issued licenses, authorizing the prosecution of these trades,3 and such prohibitory laws may be enforced against existing corporations, whose charters empower them to carry on the prohibited trade.4 In like manner, may laws, incorporated in the charter for the government of a corporation, in its relation to the public, be repealed or amended.5

It has thus been held to be constitutional for the legislature to prohibit the consolidation of connecting or competing railroad lines, although their charters may contain an express authorization of consolidation with other companies. Such authorization may be taken away or limited by subsequent legislation, as a police regulation, without impairing vested rights; as long as the regulation does not undertake to undo a consolidation which has been already accomplished.1 And so, likewise, may a subsequent statute change the conditions, under which a consolidation may be effected. Thus, where the existing law, under which the charter was obtained, provided that consolidation with another railway cannot be made, unless assented to by all of the stockholders, these conditions may be changed by subsequent legislation, so that consolidation may be legally made, if the consent to it of the holders of three-fourths in value of the stock is obtained.2 So, also, street railways may by consequent statute be compelled to pave the roadbed between the tracks.3

But it has been held in Illinois that, while the State may regulate the interment of the dead, and in the first instance prescribe the localities in which burial will be permitted, yet it is not possible for the legislature to prohibit burial upon lands purchased and laid out as a cemetery at great expense, by a corporation, which has been chartered for that purpose.4

In accordance with the general proposition of constitutional law, that an exemption from taxation cannot be impaired by subsequent legislation, where such exemption enters as a component into a valid contract, it has been held that, where a corporate charter contains a stipulation for such an exemption, the exemption cannot be taken away by subsequent legislation,1 unless the right to withdraw it is expressly reserved by the statute which grants the exemption.2 And the same ruling would obtain, where the charter was issued under a statutory or constitutional provision, which reserved the power to amend or repeal the charter.

A similar ruling is held as to the inviolability of charter stipulations of the rate of compensation which a corporation might charge for services which it renders to the public. But the discussion of these cases is reserved for a subsequent section,3 in which the whole subject of laws, regulating the rates and charges of corporations, is fully treated.

Where a corporation is given the power to conduct dams and sluices in certain streams, it does not follow that it has the power to completely withdraw the water from other uses in the stream below the dams; and a statute is constitutional which restrains the use of the dams and sluices.4

But it is different where, by charter or by general statute, specific property rights are granted to a corporation, such as the grant of lands to a railroad. These cannot be taken away by subsequent statute.5

§ 211.

Police regulations of corporations in general.—

But the corporation is no more subject to arbitrary regulations than is the individual; except, possibly, as it has been stated in the preceding section.1 In order that the regulation of a corporation may be within the constitutional limitations of police power, it must have reference to the welfare of society by the prevention or control of those actions which are calculated to inflict injury upon the public or the individual. As in all other cases of the exercise of the police power, the police regulations of corporations must be confined to the enforcement of the maxim, sic utere tuo, ut alienum non lædas, subject to the observance of which every corporate charter must be supposed to have been granted. Any attempt, under the guise of police regulations, to repeal or amend the charter, where the right of repeal or amendment has not been expressly reserved, or to abridge any of the corporate rights and privileges, would of course be unconstitutional and void.2 The property of the corporation cannot be confiscated, under pretense of being a police regulation, without payment of compensation. Thus, it was held unconstitutional for a law to require an existing turnpike company to set back its first gate two miles from the corporate limits of a town, which had grown up at the original gate, under penalty of forfeiting all right to tolls.3 The two miles of road, included within the existing turnpike, might have been confiscated in the exercise of the power of eminent domain, but compensation for the loss would have been required. So, also, would it be unlawful to compel a railroad or turnpike to permit certain persons to make use of the road without paying the customary toll.1 And while it is permissible to prohibit a corporation from doing the thing, or engaging in the business, for which it was created, no law can make the corporation responsible for the damages suffered by the public, as a consequence of what the corporation was authorized to do. Thus, for example, where the legislature authorized the construction of a bridge over a navigable stream, of such dimensions that it would necessarily become an obstruction to the navigation of the river, the bridge company could not be made responsible to those whose navigation of a stream was impeded, for that would in effect be a deprivation of the corporate rights.2 So, also, would it be unlawful for the legislature to provide by a subsequent law for the complete forfeiture of the charter as a penalty for a prohibited act, which under the existing law was a cause for only a partial forfeiture, because the enforcement of the new penalty against a corporation for acts already done would operate to impair the obligation of contracts.3 So, also, it has been held to be unconstitutional for a statute to provide for the forfeiture of the franchise of a corporation like a turnpike road, in a proceeding of a summary character, in which the right of trial by jury was possible and was denied.4

But there is no constitutional objection to the application to existing corporations of new remedies for the attainment of justice, and to secure a performance of the corporate duties to the public.5 For example, it is lawful for a legislature to extend the individual liability of the stockholders of a bank for any debt thereafter incurred.1 But while the liability of stockholders may be increased, or imposed for the first time, without affecting the constitutional rights of the stockholders, an existing liability to creditors cannot be reduced or taken away altogether, without violating the constitutional rights of the creditors, whose claims against the corporation were acquired prior to the enactment of the amendatory statute.2 So, likewise, may not the existing claims of creditors against the trustees of a corporation, who are under existing law personally liable under stated contingencies, be affected by subsequent legislation, changing this liability.3 But a law is valid which provides that existing corporations shall maintain their corporate organizations for a limited period after their dissolution, and continue their capacity for being sued, for the purpose of winding up its affairs.4 So, likewise, may the laws provide for the sale of the property of an insolvent corporation, and for the distribution of the proceeds of sale among the creditors.5

In like manner may the rights of stockholders in existing corporations be regulated and changed, in the protection and promotion of their interests. Provision for minority representation in the directory of a corporation is constitutional.1 And where the State, under a contract with a railroad corporation, has the right to vote a given number of shares, this right of representation may be surrendered by the State by subsequent enactment, and the directors whom the State had a right to appoint and did appoint may be removed summarily.2 The State may in the same way temporarily waive its rights as a voting stockholder in a turnpike company.3

The State may also grant to stockholders reasonable right of interference in the management of the business of the corporation, such as demanding the right to inspect the books of the company.4 And it has been held in one case to be constitutional, to authorize any stockholder of a private corporation to require that all the real estate owned by the corporation, which may not be necessary to the transaction of the corporate business, or for the payments of debts, be appraised and partitioned among the stockholders.5 On the other hand, it is not unconstitutional for a statute, in providing for the closing up of the affairs of mining and manufacturing corporations, not to provide for making all the stockholders necessary parties to the suit, inasmuch as they may become parties, if they want to.6

Corporations may also be required to submit to an inspection of their affairs by a public official, in order to ascertain any breaches of duty to the public,7 or to file with State officials, an annual statement of its condition.1 And the legislature may lawfully provide the extreme remedy of dissolving the bank or other corporation, whenever, upon examination by the public inspector, it should be found in an insolvent condition.2 In the case last cited,3 it was held that a law was constitutional, which provided for the judicial dissolution of an insurance company, chartered under the laws of the State, whenever the auditor, upon examination of its affairs, should be of the opinion that its financial condition is such as to render its further continuance in business hazardous to those who are insured in the company. In pronouncing the law to be constitutional, the court says:—

“With certain constitutional limitations, the rights of all persons, whether natural or artificial, are subject to such legislative control as the legislature may deem necessary for the general welfare, and it is a fundamental error to suppose there is any difference in this respect between the rights of natural and artificial persons. They both stand precisely upon the same footing. While personal liberty is guaranteed by the constitution to every citizen, yet, by disregarding the rights of others, one may forfeit not only his liberty, but even life itself. So a corporation, by refusing to conform its business affairs as to defeat the objects and purposes of its promoters, and the design of the legislature in creating it, may forfeit the right to further carry on its business, and also its existence as an artificial being. The fact, that the stockholders may be personally injured by declaring a forfeiture of the company’s franchises, and causing its affairs to be wound up in a case of this kind, is not a sufficient reason why it should not be done, if the further continuance of its business would be dangerous to the community. In the proper exercise of the police power, laws are often enacted by the legislature for the common good which materially affect the value of certain kinds of property, by which a particular class of persons are injured; yet such consequences do not at all affect the validity of the legislation, and to such losses the maxim damnum absque injuria applies. It is generally said one may do as he pleases with his own property, but this is subject to the important qualification—he must please to do with it as the law requires. * * * The maxim sic utere tuo, ut alienum non lædas, applies to all such cases. * * *

“These general principles would seem to warrant the conclusion that the legislature is authorized, in the proper exercise of the police power, to adopt such necessary legislation and regulations as will effectually protect the community from losses incident to a public business, conducted by a corporation under a charter from the State, where such business has become hazardous, and will probably result in financial distress and disappointed hopes to those who, ignorant of its condition, do business with it.”1

As illustrative examples of the scope of police regulation of corporations and of their business, I refer to the following cases of the special regulation of certain corporations.

A Missouri statute provided that, in determining whether the assets of a building and loan association are sufficient to pay the face value of the stock, and to bring the stock to maturity, the average premiums which are paid by the borrowing members of the association should be credited on the stock accounts of the non-borrowing members. The statute was declared to be unconstitutional, so far as it was made to apply to subscription contracts, which were made prior to the enactment of the statute.2

The constitution of Colorado provides that the general assembly shall have power to alter, revoke or annul any charter of a private corporation, “in such manner, however, that no injustice shall be done to the incorporators.” It was held that this qualification of the authority to alter or revoke a charter did not make a statute unconstitutional, which, in the exercise of the police power, required a canal corporation to cover over the canal, for the protection of the life and property of the inhabitants of the city, through which the canal was laid.1

The regulation of the business of insurance has been extensively treated in preceding sections,2 to which the reader is referred. Reference is made in the present connection to only a few particular cases. It has been held in Pennsylvania to be constitutional to prohibit by statute an insurance company from making discriminations, in prosecution of the business and the making of contracts of insurance, against certain individuals and in favor of others.3 So, elsewhere, it has been held to be constitutional to control the terms of a policy of fire insurance, so as to require the insurance company to pay the losses under the policy in full, whatever may be the agreement of the parties to the contrary,4 and to prohibit insurance companies from denying that the property insured was worth the full amount of the policy, when it was issued.5 The imposition of a penalty of twelve per cent of the amount recoverable on a policy of insurance, for failure to pay the same when it became due, was likewise held to be a reasonable exercise of the police power.6

Telegraph, telephone, electric light and other companies, which, in the prosecution of their business, require the stringing of wires for the transmission of the necessary electrical current, are peculiarly subject to police regulation, in order to protect the public against the nuisance, and the dangers to life and property, which are threatened by the network of wires which now encircle and interlace a large city. The dangers and annoyance are greatest when the wires are overhead, and strung on the unsightly poles which disfigure all of our streets. But the electrolysis of water, sewer and other pipes, by the want of sufficient covering of electrical wires when they are buried in the ground, both justifies and requires police regulation in such cases, as when the wires are strung upon poles above ground. In both cases, the regulations are constitutional, provided they are reasonable, even though conformity to the police regulation may prove both expensive and difficult.1 It has also been held to be constitutional to prohibit the stretching of wires over the roofs of houses.2

Telegraph companies are also subjected to police regulations of their business, in order to insure reasonable accommodations to patrons, and the safe and accurate transmission and delivery of telegraphic messages. These regulations are both reasonable and constitutional.3 And it has been held to be constitutional for a statute to give to the addressee of a telegram the right to recover a penalty, where the company had failed to deliver the telegram with reasonable dispatch. And it was held that this imposition and recovery of the penalty was not a regulation of interstate commerce, nor did it unconstitutionally impair the obligation of the contract, which the company had made with the sender of the message, that the company was not liable for mistakes in transmission unless the telegram was repeated.1

The State or municipality may also impose a tax upon the telegraph companies, doing business within their borders, without laying themselves open to the charge of interfering with interstate commerce. Usually, the tax is rated according to the number of poles which the company may erect within the limits of the city or State; and the Supreme Court of the United States has held that such a tax was rather in the nature of a rental charge for the use of the streets and highways, by the erection of poles and the stringing of wires on them.2 In imposing a similar license tax upon an electric light company, it was held in Pennsylvania that the tax could not be laid against poles and wires, which were used exclusively in lighting the streets and public places under a contract with the city; but it must be confined to the poles and wires which were employed to furnish light to private consumers.3

Wherever privileges are bestowed by statute upon a corporation, the statute may prescribe a return of some equivalent to the public, as a condition precedent to the enjoyment of the privilege; and the acceptance of the benefits of the statute makes it obligatory upon the corporation to perform its duties to the public. These principles were applied in one case to a water company, who was charged, as a condition of its acceptance and enjoyment of the privileges granted to it by statute, with the duty of furnishing free of charge all the water that may be needed by a city for fire purposes, and other public necessities, as the statute had stipulated. The statute was sustained as constitutional.1

§ 212.

Laws regulating rates and charges of corporations.—

The right of the legislature, to regulate the rates and charges of a corporation, has frequently been the subject of litigation in the courts of this country. The establishment of extensive and rich corporations, which are often enabled by their combined capital and by the possession of special franchises to make a practical monopoly of the business in which they are engaged, and consequently to demand of those, who are compelled by circumstances to have business dealings with the corporations, extortionate and unequal charges, is deemed to be a full and complete justification of the regulation of prices and charges in such cases. For these reasons, there is a general popular demand for legislative regulation of the rates and charges of the corporations.

The general power of the government to regulate prices has already been fully explained,2 and the constitutional limitations discussed. It will not be necessary to repeat here what has been stated there. It was ascertained by a study of the cases that where the government, by the grant of a more or less exclusive franchise, increases the economic powers of a person or persons, so as to create a monopoly against those to whom the franchise, is denied it had the power to regulate the charges of such person or persons, so that the public may obtain that reasonable enjoyment of the benefits arising out of the monopoly, which indeed was the consideration or inducement of the grant of the franchise.3 The Supreme Court of the United States has even gone further in the recognition of the legislative power to regulate prices, and asserted that, when circumstances make of a particular business “a virtual monopoly,” the legislature may prevent extortion by the regulation of prices.1 But in order to justify the legislative regulation of the charges of corporations, it will not be necessary to go to the length of this decision. In the first place, if the power to repeal or amend the charter is reserved to the State, no question can arise; for in the exercise of the power to amend, the legislature may require, as a condition of the continuance of the corporate existence, the observance of whatever police regulation it may see fit to establish, in the same manner, and to the same extent, that it may impose conditions of every sort and kind, in the original grant of the charter. When the power to amend or repeal is not reserved, the question becomes important, whether the corporation may be subjected to this regulation. In regard to police regulations generally, we have seen2 that the corporation occupies no vantage ground above the individual; that both corporations and natural persons may be subjected to the same regulations under like circumstances; and that the institution of new and more burdensome regulations, after the creation of the corporation, does not constitute any infringement of the corporate rights, provided no attempt is made, under the guise of police regulation, to destroy or impair any of the substantial rights of the corporation. It is, therefore, not difficult, under the principles explained and set forth in a previous section,3 to justify the regulation of the rates and charges of railroads, turnpikes, telegraph and telephone companies, and other corporations, to which the government has granted some special franchise—to each of the corporations named is given the right to appropriate land in the exercise of the right of eminent domain, without which it would be almost impossible to construct their lines or road—for the grant of the franchise made these corporations legal monopolies, as against the public, and consequently they became subject to police regulation, in order to protect the public from extortion. It has been generally held, with only one or two exceptions, that the legislature may regulate the charges of corporations of this kind,1 and change those regulations at will, unless a contract to maintain a stated rate of charge has been made with the corporation.2

But if a State law or railroad commission has established a maximum rate of charge, it has been held that special legislation, establishing a specific price for mileage tickets, will be in excess of the police power of the State.1

In Railway Co. v. Smith,2 Justice Peckham characterized such a statute, “as an abitrary enactment in favor of the persons spoken of (those who were able and willing to buy a mileage ticket) who, in the legislative judgment, should be carried at less expense than the other members of the community.”

But, as has been very fully explained in a preceding section,3 the power is now controlled by the judicial requirement, that the regulation of the rates and charges must be reasonable in the stipulation of the maximum.

Whether corporations, which receive no franchise or privilege from the government, may be subjected to State regulation of their charges in the conduct of their business,—for example, a corporation engaged in the flour milling or cotton manufacturing business—depends upon other grounds. Under the principle, established in Munn v. Illinois,4 such a regulation may be easily justified, where the business under peculiar circumstances has become a virtual monopoly. So, also, may a corporation of this kind be subjected to such a regulation, because the very creation of the corporation, which constitutes an authority for the compact combination of the capital of many persons in one business, may be considered a special franchise, increasing the power of those who compose the corporation, over the property and the necessities of others. There has been no need for the regulations of the charges of such corporations, and consequently we have few adjudications upon the subject.5

It has been stated, as the generally accepted doctrine, that the State cannot make a valid contract in limitation of the exercise of its police power.1 But a disposition is displayed by the authorities to make of the power to regulate the charges of corporations an exception to this general rule, by denying to the logislature the power to regulate such charges by subsequent laws, where the power to do so is denied by the charter, or where the lawful charges are stipulated in the charter. Chief Justice Waite, of the Supreme Court of the United States, expressed the opinion of the court on this point in the following language:—

“This company, in the transaction of its business, has the same rights and is subject to the same control as private individuals under the same circumstances. It must carry when called upon to do so, and can charge only a reasonable sum for the carriage. In the absence of any legislative regulation upon the subject, the courts must decide for it, as they do for private persons when controversies arise, what is reasonable. But when the legislature steps in and prescribes a maximum of charge, it operates upon this corporation the same as it does upon individuals engaged in a similar business. It was within the power of the company to call upon the legislature to fix permanently this limit and make it a part of the charter, and, if it was refused, to abstain from building the road and establishing the contemplated business. If that had been done the charter might have presented a contract against future legislative interference. But it was not and the company invested its capital, relying upon the good faith of the people and the wisdom and impartiality of the legislators for protection against wrong under the form of legislative regulation.”2

Where the charter or the general laws, under which the corporation has been incorporated, expressly stipulate what shall be the rate of charges which the corporation might make for its services;1 or the exclusive power to fix its own rates is expressly given to the corporation,2 there can be very little doubt that a binding contract has been thereby made by the State with the corporation, which, under the decisions already cited, would debar any future regulation of the charges of the corporation. But is a contract, which so operates as a bartering away of the police power of the State, to be inferred from a mere general authorization that the corporation may fix its own rates? All corporate charters, and general laws of incorporation, contain a statement of the general powers of the corporation, which does not amount to a contract that these powers are not subject to any future police regulation; and it would seem to be reasonable to distinguish the cases, in which there is an express stipulation that the corporation shall have the “exclusive” right to fix its own charges, from those cases, in which there is only a general authorization to determine upon the rates of prices and charges. In the latter cases, it would seem to be sound to hold that there was not such a positive contract, as would preclude the future police regulation of the rates of charges. It has been so held in two cases.1

But where the charter of incorporation is taken subject to the reserved power to amend or repeal, the reserved power of amendment and repeal applies to this contract, that the corporation shall fix its own rates, as well as to any other rights and powers which might have been conferred by the charter.2

It has been recently held by the United States Circuit Court that, where corporations have been formed under a general incorporation law, which grants to the corporation the power to fix its own rates, no law will be a constitutional repeal of this authority which is limited in its application to the corporations of a limited locality, which have been formed thereunder. To be an effective and valid repeal of the law, it must apply to all corporations of the class throughout the State.3 The facts of this case were these: The general law of the State of Indiana for the incorporation of street railways throughout the State, gave by express provision to the railways incorporated thereunder the right to determine its rates of fare, but the power to amend or repeal any part of the law was expressly reserved. Subsequently, the legislature undertook to reduce the fares on street railways in cities of the first class, in which there was only one city, Indianapolis, to three cents. The Supreme Court of the State sustained the subsequent statute, holding that it was not a special act, in violation of the constitutional prohibition of special laws.1 But the United States Circuit Court held the statute to be unconstitutional on the ground, as stated above, that, since the statutory contract for exemption of the street railways from the regulations of its rates of fares was applicable to all the street railways throughout the State, the contract cannot be abrogated by any law which has a narrower application.

But, even when there is no contract in the way of the exercise by the legislature of the power to regulate the prices and charges of corporations, there is always the one unvarying limitation, that the rates which may be fixed by the legislature must not be so low, that the reasonable profits of the corporate business will be taken away. Where such a practical confiscation of the profits results from the legislative regulation of the rates of charges, the courts will unhesitatingly declare the regulation to be void and unconstitutional, as an interference with vested rights.2

Similar principles induced the Supreme Court of Kentucky to hold an act of the legislature unconstitutional, which authorized a turnpike company to charge toll of the citizens of a town, from which they were exempted by a provision of the charter of the turnpike company. This abrogation of the privilege of exemption of these citizens from the payment of the toll, was held to be unjustifiable as an exercise of the police power.3

§ 213.

Regulation of foreign corporations.—

It is provided by the United States constitution1 that “the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States;” and, under this clause of the constitution, the citizen of one State is protected against any discrimination, in another State between himself and the citizens of the latter State. He is entitled to the equal enjoyment of the privileges of the citizen, and any arbitrary discrimination between him and the citizen of the latter State, in the matter of police regulations, would be in violation of this constitutional provision. But corporations are not considered to be citizens within the operation of this guaranty. The legal existence of a corporation is confined to the territory of the State, which brings the corporation into existence. The corporations of one State are not entitled to the privileges or immunities of the citizens of the several States; and, consequently, they cannot claim the right to transact business in any other State but the one in which they were created.2 If they are permitted to exercise their corporate powers in any other State, it is a privilege and not a guaranteed right. A State may, without violating any provision of the constitution of the United States, prohibit altogether the doing of business by foreign corporations within its territory; and if the privilege is granted, it may be coupled with all sorts of conditions, the performance of which constitutes a condition precedent to the enjoyment of the privilege; and these requirements will not be open to constitutional objection, because they are not made applicable to domestic corporations.1 Thus, it has been held to be constitutional for a State law to require a foreign corporation, before it can lawfully do business within the State, to procure a license from the State officials, and to fulfill the conditions precedent to the procurement of the license;2 to open and maintain an office within the State, in the charge of a resident agent, upon whom process against the corporation may be served;3 and to pay a license or franchise tax to the State or municipality, or to both;4 to require fire insurance companies to pay to the fire department of a city a stated percentage of the premiums they receive;1 and to require any foreign corporation to deposit funds with the State authorities, in order to secure the payment of claims which citizens may have or acquire against it.2 It is even permissible for the State legislature to provide for the exaction of a penalty from any agent of a foreign corporation (in this case it was an insurance company), who shall act without authority from the State, although the contract is made out of the State, and provides that he shall be deemed the agent of the other party to the contract.3 In these cases, it is held that the exaction of an arbitrary license of, and the imposition of extraordinary conditions upon, the resident agents of foreign corporations, involve no infringement of the personal rights of the agents, as citizens of the State or of the United States.

But a foreign corporation cannot be taxed for the purchase of raw material, which is shipped from the taxing State to the native State of the corporation for manufacture, for that cannot be considered a “doing of business within the commonwealth.”1 And it has likewise been held that a statute is unconstitutional, which requires foreign corporations to file certificates of their articles of incorporation, as a condition precedent to their transaction of business within the State.2

Most of the State laws, which provide that foreign corporations shall comply with the prescribed conditions precedent before they will be authorized to do business within the State, declare that any contracts, which they may make before they have complied with the requirements of the statute, shall be void and of no effect, so that no suit in the enforcement of them can be maintained in the State courts. The enforcement of this penalty may in the discretion of the legislature be waived by subsequent legislation, validating the otherwise void contracts, without in any constitutional sense interfering with the vested rights of the other parties to the contracts.3

One of the practical effects, which the laws for the regulation of foreign corporations almost universally aim to secure, is the provision for bringing such foreign corporations within the jurisdiction of the State courts, and the recovery of absolute judgments against such corporations. Before such suits quasi in personam may be entertained against a foreign corporation, doing business within the State, personal service must be made upon some one within the State, who may accept such service as the representative of the foreign corporation. The usual provision is that a corporation, in entering into the transaction of business within the State, is properly served with notice when the process is served upon a resident agent of the corporation. The agent who is served must at the time of service be in the employment of the corporation, and must at the time be engaged with its affairs.1 The rights and privileges which a foreign corporation acquires under a license to do business within the State, is not a contract in the constitutional sense, so that the license may not be revoked or amended by subsequent legislation. The license may be amended or revoked altogether,2 as long as the revocation or amendment of the license may not be given a retroactive effect, so as to invalidate any transactions which were entered into, prior to the enactment of the amendatory law;3 or to impose extra burdens upon, or otherwise affect injuriously, the rights of contract of existing creditors of the corporation.4

So, also, a regulation of a foreign corporation, which has the direct effect of discriminating against the citizens of another State, will be void because it violates the constitutional guaranty to the citizens of all the States of equal privileges and immunities in each State. Thus, a State statute, which provides that, in case of insolvency of a foreign corporation, the creditors, resident within the State, shall have, in the distribution of the assets found within the State, priority over the claims of non-resident creditors, was declared to be an unconstitutional discrimination against foreign creditors.1 But it has been held very recently in New York, that the section of the State banking law, which requires foreign corporations, doing business within the State under its provisions, to deposit funds with a State official for the exclusive protection of resident creditors, who shall in case of insolvency of the foreign corporation have a prior lien upon such funds, is a valid regulation, and does not contravene any constitutional provision.2

A foreign corporation cannot be denied the right to sue in the courts of the State, on contracts made within the State for the sale of goods manufactured outside of the State, if the contracts themselves are valid and beyond the jurisdiction of the State, under the constitutional prohibition of the regulation of interstate commerce.3 In the absence of special regulations, whenever a corporation does business in another State, it is so far considered a corporation of that State as to be amenable to its ordinary police regulations.4

§ 214.

Regulations of railroads.—

The police regulation of the management of railroads is extremely common and varied; and, consequently, the exercise of police power over them has more frequently been the subject of litigation. But there is no more need for a judicial determination of the limitations upon police power in this phase of its exercise, than in any other. The same principles govern its exercise in every case. Every one, whether a corporation or a natural person, must so enjoy and make use of his rights as not to injure another; and the State may institute whatever reasonable regulations may be necessary to prevent injury to the public or private persons. Here, as elsewhere, however, the exercise of police power must be confined to those regulations which may be needed, and which do actually tend, to prevent the infliction of injury upon others. And it is a judicial question whether a particular regulation is a reasonable exercise of police power. The public necessity of the exercise of the police power in any case is a matter addressed to the discretion of the legislature; but whether a given regulation is a reasonable restriction upon personal rights is a judicial question.1

A disposition is manifested in some of the cases to claim for the railroad company the application of the same rule of reasonableness, as would be applicable to regulations of the private property of individuals; that is, prohibiting all regulations of railroads and of their property, which would not be applicable generally to the private property of individuals. But the reasonableness or unreasonableness of a police regulation is subject to variation with a change of circumstances, and in the character of the subject of the regulation. A regulation may be reasonable when directed against the use of certain kinds of property, while it would be unreasonable, if applied to other and different kinds of property, the enjoyment or use of which does not threaten the injury, against which the regulation was directed. But there can be no doubt that a corporation cannot be subjected to a regulation, which would not be applicable to a natural person under like circumstances. The police regulations resemble greatly the regulation of the use of the common highways, and a comparison of them, as set forth in the following language of a distinguished judge, will assist in reaching a clear understanding of the scope of police power in the regulation of railroads. In Chicago, B. & Q. R. R. Co. v. Attorney-General of Iowa,1 Dillon, J., says:—

“In all civilized countries the duty of providing and preserving safe and convenient highways to facilitate trade and communication between different parts of the State or community is considered a governmental duty. This may be done by the government directly, or through the agency of corporations created for that purpose. The right of public supervision and control over highways results from the power and duty of providing and preserving them. As to ordinary highways these propositions are unquestioned. But it is denied that they apply to railways built by private capital, and owned by private corporations created for the purpose of building them. Whoever studies the nature and purposes of railways constructed under the authority of the State by means of private capital will see that such railroads possess a twofold character. Such a railway is in part public and in part private. Because of its public character, relation and uses, the judicial tribunals of this country, State and national, have at length settled the law to be that the State, to secure their construction, may exert in favor of the corporation authorized by it to build the road both its power of eminent domain and of taxation. This the State cannot do in respect of occupations or purposes private in their nature. * * * In its public character a railroad is an improved highway, or means of more rapid and commodious communication, and its public character is not divested by the fact that its ownership is private. * * * In its relations to its stockholders, a railroad, or the property in the road and its income is private property, and, subject to the lawful or reserved rights of the public, is invested with the sanctity of other private property. The distinction here indicated marks with general accuracy the extent of legislative control, except where this has been surrendered or abridged by a valid legislative contract. Over the railway as a highway, and in all its public relations, the State, by virtue of its general legislative power, has supervision and control; but over the rights of the shareholders, so far as these are private property, the State has the same power and no greater than over other private property.”1

For the further and more expeditious regulation of railroads, particularly in their relation to their patrons, the States throughout the Union, as well as the Federal government, have created boards of railroad commissioners; their powers of supervision varying with the provisions of each statute. One unvarying distinction, however, is that the national, or United States railway commission, has supervision over the railroads in their relations to interstate commerce only, while the States’ boards of railway commissioners control the relations of the railroads with intrastate commerce, and with the State governments, as the residuary depositary of the police power of the government. The maintenance of these commissions involves considerable expense; and the legislature of South Carolina imposed by statute the entire expenses of their State railway commission upon the railroads operating within the State. The constitutionality of this statute was contested by the railroad on the ground that it was a taking of private property without due process of law. But the United States Supreme Court united with the Supreme Court of South Carolina, in sustaining the constitutionality of the statute.1

As has already been intimated, the number of police regulations of railroads is very great, and the character of them is as varied. For the purpose of illustrating the scope of these regulations, it will only be necessary to refer to the more important ones, which have been passed upon by the courts.

For example, in the exercise of the ordinary police power of the State, it has been held to be reasonable to require all railroads to fence their tracks, not alone for the protection of the live stock of the abutting owners. Indeed, the chief object of the statute is probably to protect the traveling public against accidents, occurring through collision of trains with cattle.2 One exercise of the power to require railroads to fence their tracks does not preclude a second regulation of the same kind, providing for other and different fences.1 And the railroad company can not relieve itself from the obligation to erect and maintain the fence by any contracts with the abutting owners.2 The railroad company is, of course, liable for whatever injury is done to persons or property, in consequence of any neglect in maintaining the fence.3

In the absence of special legislation, the judgment will be confined to the recovery of the actual damages which have been suffered in consequence of the neglect. But the statute may constitutionally make the company liable for double the value of the stock killed by reason of the neglect to properly maintain the fences. This requirement is justified on the same grounds, as is the authority to recover exemplary or punitory damages.4 And it may also be provided by statute that the railroad company may be held liable for all losses of property, occurring in consequence of the neglect of the railroad in the maintenance of the fences, although the owner may be guilty of contributory negligence.1

But there must be some violation of the law, or some act of negligence, on the part of the railroad company, in order that the company may be held liable for damages suffered from the running of trains.2 A statute, which makes a railroad responsible “for all expenses of the coroner and his inquest, and of the burial of all persons who may die on the cars, or who may be killed by collision or other accident occurring to such cars, or otherwise,” is, therefore, properly declared to be unconstitutional, so far as it is applied to cases of loss, in which the company has not been guilty of negligence, or of a violation of some legal duty.1 And where there is no statutory obligation on the railroad to maintain fences along its lines, the general principles of the law as to penning up of cattle prevail, and make a statute unconstitutional, which imposes upon a railroad the responsibility for injury to cattle.2

On the same general principles, statutes are sustained as constitutional which impose upon the railroad companies liability for all injuries to property, which have been occasioned by fires, set or caused by their locomotives.3 And some of these cases hold that it is not unconstitutional to impose upon the railroads an absolute liability for damages from fires, irrespective of the question of negligence, and in the absence of all proof of negligence.4 Of the same character, but not so severe upon the railroads, is the State regulation, that the setting fire to property by a passing locomotive is prima facie evidence of the negligence of the railroads. The statute in question was sustained as a constitutional exercise of the police power by the Supreme Court of Illinois.1 A Maine statute, in imposing this extraordinary liability for fires upon the railroads, provides that the railroads shall become subrogated to the rights of the property owner in and to any fire insurance which may cover the property, which has been destroyed by the locomotive fires; and if the owner has already recovered on the policy, the amount he has received from the insurance company will be deducted from the amount of damages, which has been assessed against the railroad. The constitutionality of the statute has been sustained.2

Laws which modify the common law, so as to make railroads liable to their employees for injuries sustained through the negligence of their fellow-servants, have also been sustained.3

It has also been held to be constitutional to provide by statute that, in all actions against railroads for injuries to stock or other property, resulting from the operation of the trains, a certain attorneys’ fee shall be recoverable of the railroad as a part of the damages.4 But the contrary ruling has been made as to this special allowance of attorneys’ fees by the Supreme Court of the United States,5 and also by the Supreme Court of Michigan, on the ground that it was special legislation which is inhibited by the constitution.1

The State may in like manner regulate the grades of railways generally—changing them when necessary, and, particularly, at the points where they cross highways or other railways—and provide for an apportionment of the expense of making the crossing;2 sometimes throwing the whole expense upon the railroad.

The State may also prescribe the rate of speed at which highways and other railways may be crossed,1 and while running within the corporate limits of a city or town.2 The State may institute other regulations, having the protection of life in view, such as requiring all railroad companies to ring their bell or blow the whistle of the engine on approaching a crossing or highway;1 or to place and keep flagmen at such places, and at such times of the day, when the traffic and the passage of numbers of people make such a regulation reasonable and necessary.2

It is also a lawful exercise of police power to require a railroad to construct a bridge in passing over a public highway, instead of crossing it at the same grade;3 or to prohibit a railroad from constructing its tracks or running cars on any street so near the depot of another railroad, as to interfere with a safe and convenient access to the latter road.1

It has also been held to be constitutional to require railroads, whose tracts intersect, to put in connecting switches, in order to transfer cars from one road to the other.2 And where several railroads, some the lessees of the others, make a common use of the viaduct, upon entering a city, the expense of maintaining such viaduct may be laid entirely upon the lessor companies, without in any way intringing their constitutional rights; particularly, where the contractual relations and liabilities between the lessor and lessee railroads are not disclosed.3

The State may also make all kinds of reasonable regulations for insuring a fair and impartial carriage of all persons and property. The right to regulate the charges of corporations in general has already been fully explained,4 and the railroad companies may be subjected to such regulations, as well as any other corporation. In consequence of the racial prejudice, there is a disposition in some parts of the country to make invidious distinctions in the accommodations provided for the white and black passengers. While it is in violation of the common law rights of the negro, as well as of the constitutional and statutory provisions, which guarantee to the negro equal privileges in the use and enjoyment of the public conveyances, hotels, and places of amusement,1 if the railroad company should deny to him the use of the first-class and sleeping cars;2 yet it is lawful for them to provide separate cars for the two races, provided their appointments and conveniences are equally good.3

In Louisville, N. & O., etc., Ry. Co. v. Mississippi,4 the court say:—

“It is claimed by the plaintiff in error that, in any mixed community, the reputation of belonging to the dominant race, in this instance, the white race, is property, in the same sense that a right of action or of inheritance is property. Conceding this to be so for the purposes of this case, we are unable to see how this statute deprives him of, or in any way affects his right to, such property. If he be a white man and assigned to a colored coach (sic) he may have his action for damages against the company for being deprived of his so-called property. Upon the other hand, if he be a colored man and be so assigned, he has been deprived of no property since he is not lawfully entitled to the reputation of being a white man.

“In this connection it is also suggested by the learned counsel for the plaintiff in error that the same argument, that will justify the State legislature in requiring railways to provide separate accommodations for the two races, will also authorize them to require separate cars for people whose hair is of a certain color, or who are aliens or who belong to certain nationalities, or to enact laws requiring colored people to walk upon one side of the street and white people upon the other, or requiring white men’s houses to be painted white and colored men’s black, etc.; upon the theory, that one side of the street is as good as the other, or that a house or vehicle of one color is as good as one of another color. The reply to all this is that every exercise of police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion of the public good, and not for the annoyance or oppression of a particular class. Thus, in Yick Wo v. Hopkins, 118 U. S. 356, it was held by this court that a municipal ordinance of the city of San Francisco, to regulate the carrying on of public laundries within the limits of the municipality, violated the provisions of the constitution of the United States, if it conferred upon the municipal authorities arbitrary power, at their own will and without regard to discretion in the legal sense of the term, to give or withhold consent as to persons or places, without regard to the competency of the persons applying or the propriety of the places selected for the carrying on of the business. It was held to be a covert attempt on the part of the municipality to make an arbitrary and unjust discrimination against the Chinese race.” * * *

“So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs and traditions of the people, and with a view to the promotion of their comfort and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress, requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of State legislatures.”

In Plessy v. Ferguson,1 the court says, in part:—

“The distinction between laws interfering with the political equality of the negro and those requiring the separation of the two races in schools, theaters and railway carriages, has been frequently drawn by this court. Thus in Strander v. West Virginia,2 it was held that a law of West Virginia, limiting to white male persons twenty-one years of age and citizens of the State, the right to sit upon juries, was a discrimination which implied a legal inferiority in civil society, which lessened the security of the right of the colored race, and was a step toward reducing it to a condition of servility. Indeed the right of a colored man that, in the selection of jurors to pass upon his life, liberty and property, there shall be no exclusion of his race and no discrimination against them because of color, has been asserted in a number of cases.3 So where the law of a particular State or the charter of a particular railway corporation has provided that no person shall be excluded from the cars on account of color, we have held that persons of color should travel in the same car as white ones, and that the enactment was not satisfied by the company’s providing cars assigned exclusively to white persons.4

“Upon the other hand, where a statute of Louisiana required those engaged in the transportation of passengers among the States to give to all persons traveling within that State, equal rights and privileges in all parts of the vessel, without distinction on account of race or color, and subjected to an action for damages the owner of such vessel, who excluded colored passengers on account of their color from the cabin set aside by him for the use of whites, it wsa held to be, so far as it applied to interstate commerce, unconstitutional and void.”1

On the same principle, it has been held that the railroads are not required to admit whites and blacks to the same waiting room at the stations, provided the accommodations are not unequal.2

It is also held to be a lawful exercise of police power to require railroads to draw the cars of other corporations as well as their own, at reasonable times and for a reasonable compensation, to be agreed upon by the parties or fixed by the railroad commissioners.3

In order that the inhabitants of the country, through which a railroad passes, may be assured a reasonable use of the regular trains, the legislature may determine at what stations, and for what length of time, all trains shall be required to stop;4 and all agreements of railroad companies, which limit the location of stations, are void because against public policy.5

It has, likewise, been held to be a reasonable exercise of police power to require railroads to keep posted at every station the times of arrival and departure of the trains, and to announce whether the trains are on time; and, when late, how much behind time.1 Laws have also been sustained, which required railroads to light up their roads at night,2 and which regulated the construction of switches, prohibiting certain kinds;3 which regulated the heating of cars, forbidding the use of stoves;4 which prohibited smoking in street cars;5 which required street car companies, operating electric, steam or cable cars, to provide on the front platform an inclosure for the protection of the motorman from unnecessary exposure to the weather;6 and which require railroads, on live-stock trains, to feed and water the stock while in course of transportation.7 It has also been held to be competent for a State to prohibit the running of freight trains on Sundays.8

So, also, has it been held to be a constitutional exercise of police power, in compelling engineers of railroads to submit to examination for color blindness, to require the railroads to bear the expense of the examination.9 And it has been declared to be reasonable and constitutional, in the regulation of the safe transportation and delivery of freight, to impose penalties for the improper refusal of the delivery of freight to the proper consignee;10 and to require the railroad, if the consignee does not call for the goods within twenty days after notice of their arrival, to turn the same over for safe-keeping to a warehouseman or storage company.11

With a view to prohibit the combination of railroads into extensive monopolistic systems of railroads, with the consequent abolition of competition, it is a rather common regulation to prohibit the consolidation of competing roads; and the regulation has been held to be a constitutional exercise of the police power.1 The power to lease a railroad is equally subject to police regulation and limitation. The State may, for example, require all leases, in order to be valid, to be recorded.2

The regulation of the issue by railroads of tickets is not uncommon, and is sustained, whenever it is a reasonable one. Laws, which require the issue of mileage tickets, at certain rates, have been sustained;3 in one case, requiring that the mileage ticket must be issued in the name of the purchaser, his wife and children, and must be receivable for two years from date.4 State laws sometimes require that stop-over privileges shall be allowed to the holder of tickets.5

It would be impossible to mention in detail all the police regulations, to which railroad corporations are now subjected in the interests of the public. The test of their constitutionality is, in every case, whether they are designed, and do tend, to protect some public or private right from the injurious act of the railroad company. And the most complete legislation of this kind is that which provides for the general supervision of the railroads by commissioners, appointed by the State, and given full power to make inspection of the working and management of the roads. The constitutionality of this State supervision cannot well be doubted. “Our whole system of legislative supervision through the railroad commissioners, acting as a State police over railroads, is founded upon the theory that the public duties devolved upon railroad corporations by their charter are ministerial, and, therefore, liable to be thus enforced.”1

[1]Dartmouth College v. Woodward, 4 Wheat. 518.

[2]See Planters’ Bank v. Sharp, 6 How. (U. S.) 301; Trustees, etc., v. Indiana, 14 How. (U. S.) 268; Piqua Bank v. Knoop, 16 How. (U. S.) 369; Hawthorne v. Calef, 2 Wall. 10; Binghamton Bridge Case, 3 Wall. 51; State v. Noyes, 47 Me. 189; Wales v. Stetson, 2 Mass. 143; Central Bridge v. Lowell, 15 Gray, 106; Grammar School v. Burt, 11 Vt. 632; Backus v. Lebanon, 11 N. H. 19; People v. Manchester, 9 Wend. 351; Commonwealth v. Cullen, 13 Pa. St. 133; Cleveland, etc., R. R. Co. v. Speer, 56 Pa. St. 325; Zabriskie v. Hackensack, etc., R. R. Co., 17 N. J. Eq. 178; State v. Mayor of Newark, 35 N. J. L. 157; Bank of Old Dominion v. McVeigh, 20 Gratt. 457; Bank of State v. Bank of Cape Fear, 13 Ired. 75; Mills v. Williams, 11 Ired. 558; Young v. Harrison, 6 Ga. 130; State v. Accommodation Bank, 26 La. Ann. 288; State v. Tombeckbee, 2 Stew. 30; Commercial Bank v. State, 14 Miss. 599; Mobile, etc., R. R. Co. v. Moseley, 52 Miss. 127; Sala v. New Orleans, 2 Wood (U. S. C. C.), 188; State v. Southern, etc., R. R. Co., 24 Tex. 80; Hamilton v. Keith, 5 Bush, 458; Marysville Turnpike Co. v. How, 14 B. Mon. 429; Mechanic’s Bank v. DeBolt, 1 Ohio St. 591; Edwards v. Jagers, 19 Ind. 407; Flint v. Woodhull, 25 Mich. 99; Bruffet v. G. W. Ry. Co., 25 Ill. 353; St. Louis v. Manufacturers’ Sav. Bank, 49 Mo. 574; Farrington v. Tennessee, 95 U. S. 679.

[1]See an ingenious argument against the correctness of the decision of the court in the Dartmouth College Case, in 8 Am. Law Rev. 190. The writer of the article, inter alia, makes the point that, inasmuch as the author of this clause of the constitution, Judge Wilson, of Pennsylvania, afterwards of the Supreme Court of the United States, was a Scotch lawyer, and therefore learned in the Roman or Civil law, we must look to that system for the real meaning of the phrase “obligation of a contract.” In the Roman law, obligatio ex contractu, invariably meant a pecuniary liability.

[2]See Gas & Water Co. of Downington v. Corporation of Borough of Downington, 175 Pa. St. 341.

[1]People v. Cook, 110 N. Y. 443; s. c. 148 U. S. 397. See, to same general effect, Ashley v. Ryan, 153 U. S. 436.

[1]Cincinnati, H. & I. Ry. Co. v. Clifford, 113 Ind. 460.

[2]Bank of Commerce v. State of Tennessee, 163 U. S. 416.

[3]Loewenthal v. Rubber Reclaiming Co., 52 N. J. Eq. 440.

[4]Graded School Dist. No. 2 v. Trustees of Bracken Academy, 95 Ky. 436; Webster v. Cambridge Female Seminary, 78 Md. 193; State v. Neff, 52 Ohio St. 375.

[5]Giles v. Stanton, 86 Tex. 620; Giles v. East Line & R. Ry. Co. (Tex.), 26 S. W. 1111.

[6]11 Pet. 420.

[1]City Ry. Co. v. Citizens’ Street Ry. Co., 166 U. S. 557; s. c. 56 Fed. 746. See Shreveport v. Cole, 129 U. S. 36; Hamilton Gas Co. v. Hamilton City, 146 U. S. 258.

[2]Hamilton Gaslight & Coke Co. v. City of Hamilton, 146 U. S. 258; People v. Cook, 148 U. S. 397; State v. Montgomery Light Co., 102 Ala. 594; Bissell v. Heath, 98 Mich. 472.

[1]McCandless v. Richmond & D. Ry. Co., 38 S. C. 103; Mobile Ins. Co. v. Columbia & Greenville Ry. Co., 41 S. C. 408.

[2]Citizens’ Street Railway Co. v. City of Memphis, 53 Fed. 715.

[3]Holyoke Co. v. Lyman, 15 Wall. 500; Southern Pac. Co. v. Bd. of R. R. Comrs. (C. C. A.), 78 Fed. 236; Inland Fishery Commissioners v. Holyoke Water Power Co., 104 Mass. 446; Worcester v. N. and W. R. R. Co., 109 Mass. 103; Thornton v. Marginal Freight Railway, 123 Mass. 32.

[4]Bissell v. Heath, 98 Mich. 472.

[1]Hamilton Gaslight & Coke Co. v. City of Hamilton, 146 U. S. 258.

[2]City of Terre Haute v. Evansville & T. H. Ry. Co., 149 Ind. 174. To the same effect, see Citizens’ Gaslight of Reading, etc. v. Inhabitants of Wakefield, 161 Mass. 432.

[3]Fortain v. Smith, 114 Cal. 494.

[4]Houston & T. C. Ry. Co. v. Texas & P. Ry. Co., 70 Tex. 649.

[5]People v. O’Brien, 111 N. Y. 1.

[1]As to which, see post, § 190.

[1]Beaston v. Farmers’ Bk., 12 Pet. 102; U. S. v. Amedy, 11 Wheat. 392; People v. Utica Ins. Co., 15 Johns. 382; Planters’ & Mechanics’ Bk. v. Andrews, 8 Porter, 404. Compare School Directors v. Carlisle Bk., 8 Watts, 291; Blair v. Worley, 1 Scam. 178. And see Com. v. Phœnix Bk., 11 Metc. 129; Androscoggin Water Power Co. v. Bethel Steam Mill Co., 64 Me. 441; Chicago, M. & St. P. Ry. Co. v. City of Milwaukee, 97 Wis. 418.

[2]Mott v. Hicks, 1 Cow. 513; State of Indiana v. Woram, 6 Hill, 33; State v. Nashville University, 4 Humph. 157; Commercial Bk. v. Nolan, 8 Miss. 508.

[3]Curtis v. Kent Water Works, 7 B. & C. 314; State v. Nashville University, 4 Humph. 157; King v. Gardner, Cowper, 79; Lehigh Bridge Co. v. Lehigh Coal & Nav. Co., 4 Rawle, 8.

[4]Otis v. Weare, 8 Gray, 509; People v. Utica Ins. Co., 15 Johns. 358; International L. Ass. Co. v. Comrs., 28 Barb. 318; Ontario Bk. v. Bunnell, 10 Wend. 186; Baldwin v. Trustees, 37 Me. 369; Curtis v. Kent Water Works, 7 B. & C. 314.

[5]Knox v. Protection Ins. Co., 9 Conn. 430; Mayor of Mobile v. Rowland, 26 Ala. (n. s.) 498; Planters’ Bk. v. Andrews, 8 Porter, 404; Trenton Bk. v. Haverstick, 6 Halst. 171; Mineral Point R. R. v. Keep, 22 Ill. 9; City of St. Louis v. Rogers, 7 Mo. 19; Bushel v. Commonwealth Ins. Co., 15 Serg. & R. 176; Eslava v. Ames Plow Co., 47 Ala. 384; Brauser v. New England Fire Ins. Co., 21 Wis. 506; Bristol v. Chicago & Aurora R. R., 15 Ill. 436; Bk. of No. America v. Dunville, etc., R. R., 82 Ill. 493; Western Transportation Co. v. Scheu, 19 N. Y. 408. See Olcott v. Tioga R. R., 20 N. Y. 210; Commercial M. F. Ins. Co. v. Duerson, 28 Gratt. 631.

[1]Wheeling Br. & Tenn. Ry. Co. v. Gilmore, 8 Ohio C. C. 658; Citizens’ Horse Ry. Co. v. City of Belleville, 47 Ill. App. 388.

[2]See Leep v. St. Louis, I. M. & S. Ry. Co., 58 Ark. 407, and cases therein cited. See, also, ante, §§ 94 et seq., where these cases are cited and discussed in connection with the subject of regulation of the freedom of contract, and post, present section, where the cases are fully explained and quoted from.

[3]Louisville & N. Ry. Co. v. Williams (Ky.), 41 S. W. 287.

[1]Risley v. Phœnix Bank, 83 N. Y. 318.

[2]27 Vt. 150.

[1]See, also, to the same effect, Gowen v. Penobscott R. R. Co., 44 Me. 140; Cummings v. Maxwell, 45 Me. 190; Commonwealth v. Intoxicating Liquors, 115 Mass. 153; Lord v. Litchfield, 36 Conn. 116 (4 Am. Rep. 41); Frankford, etc., Ry. Co. v. Philadelphia, 58 Pa. St. 119; Taggert v. Western, etc., R. R. Co., 24 Md. 563; Haynes v. Carter, 9 La. Ann. 265; Louisville, etc., R. R. Co. v. Ballard, 2 Met. (Ky.) 165; Blair v. Milwaukee, etc., R. R. Co., 20 Wis. 254; Reapers’ Bank v. Willard, 24 Ill. 433; Bank of Republic v. Hamilton, 21 Ill. 53; Dingman v. People, 51 Ill. 277; State v. Herod, 29 Iowa, 123; Gorman v. Pac. R. R. Co., 26 Mo. 441; Ex parte N. E. & S. W. R. R. Co., 37 Ala. 679; State v. Eagle Ins. Co. of Cincinnati, 50 Ohio St. 252; Platte & Denver Canal Milling Co. v. Dowell, 17 Colo. 376; State v. St. Paul City Ry. Co. (Minn. 1900), 81 N. W. 200.

[1]Leep v. St. Louis, Iron Mountain Ry., 58 Ark. 407, 427.

[1]55 Md. 74.

[1]State v. Brown & Sharpe Mfg. Co., 18 R. I. 16.

[1]See Beer Company v. Massachusetts, 97 U. S. 25; Fertilizing Company v. Hyde Park, 97 U. S. 659; Stone v. Mississippi, 101 U. S. 814; Thorpe v. Rutland, etc., R. R. Co., 27 Vt. 140, 149; People v. Commissioners, 59 N. Y. 92; Hammett v. Philadelphia, 65 Pa. St. 146 (3 Am. Rep. 615); Hirn v. State, 1 Ohio St. 15; Bradley v. McAtee, 7 Bush, 667 (3 Am. Rep. 309); Indianapolis, etc., R. R. Co. v. Kercheval, 16 Ind. 84; Toledo, etc., R. R. Co. v. Jacksonville, 67 Ill. 37; Chicago Packing Co. v. Chicago, 88 Ill. 221.

[1]Butchers’ Union Slaughter-house, etc., Co. v. Crescent City Live Stock, etc., Co., 111 U. S. 746.

[1]Chicago B. & C. Ry. Co. v. State, 170 U. S. 57.

[2]Stone v. Mississippi, 101 U. S. 814; State v. Morris, 77 N. C. 512; Bass v. Nashville, Meigs, 421 (33 Am. Dec. 154); Mississippi Soc. of Arts v. Musgrove, 44 Miss. 820; Moore v. State, 48 Miss. 147 (12 Am. Rep. 367); State v. Woodward, 89 Ind. 110 (46 Am. Rep. 160); Commonwealth v. Douglass (Ky.), 24 S. W. 233; Douglass v. Commonwealth (Ky.), 24 S. W. 233; s. c. 168 U. S. 488. See, contra, Broadbent v. Tuscaloosa, etc., Association, 45 Ala. 170; Kellum v. State, 66 Ind. 588.

[3]Calder v. Kurby, 5 Gray, 597; Commonwealth v. Brennan, 103 Mass. 70; La Croix v. County Comrs., 50 Conn. 321 (47 Am. Rep. 648); Met. Board of Excise v. Barrie, 34 N. Y. 657; Baltimore v. Clunity, 23 Md. 449; Fell v. State, 42 Md. 71 (20 Am. Rep. 83); McKinney v. Salem, 77 Ind. 213. Contra, Adams v. Hatchett, 27 N. H. 289; State v. Phalen, 3 Harr. 441; Boyd v. State, 36 Ala. 329. A license for the prosecution of any trade, which tends to be injurious to the public, may be revoked by a subsequent prohibitory law. State v. Burgoyne, 7 Lea, 173. See, generally, State v. Cook, 24 Minn. 247; Pleuler v. State, 11 Neb. 547. See ante, §§ 119-125.

[4]Beer Company v. Massachusetts, 91 U. S. 25; Commonwealth v. Intoxicating Liquors, 115 Mass. 153.

[5]Bank of Columbia v. Okely, 4 Wheat. 235; Baltimore, etc., R. R. Co. v. Nesbit, 10 How. 395; Railroad v. Hecht, 95 U. S. 170; s. c. 29 Ark. 661; Gowen v. Penobscot R. R. Co., 45 Me. 140; Ex parte N. E. & S. W. R. R. Co., 37 Ala. (n. s.) 679; Howard v. Kentucky, etc., Ins. Co., 13 B. Mon. 282.

[1]Pearsall v. Great Northern Ry. Co., 161 U. S. 646; Louisville & N. Ry. Co. v. Kentucky, 161 U. S. 677.

[2]Market St. Ry. Co. v. Hellman, 109 Cal. 571.

[3]Storrie v. Houston City Street Ry. Co. (Tex.), 46 S. W. 796.

[4]Lakeview v. Rose Hill Cemetery Co., 70 Ill. 192. But see, contra, Brick Presbyterian Church v. Mayor, etc., 5 Cowen, 538; Coates v. Mayor, etc., 7 Cow. 585; Kincaid’s Appeal, 66 Pa. St. 423; City Council v. Wentworth Street Baptist Church, 4 Strobh. 310. See, also, ante, § 149.

[1]Barnes v. Kornegay, 62 Fed. 671.

[2]Deposit Bank v. Davies County (Ky.), 39 S. W. 1030.

[3]§ 212.

[4]St. Anthony Falls Water Co. v. St. Paul, 168 U. S. 349; Minneapolis Mill Co. v. St. Paul, 168 U. S. 349.

[5]Houston & T. C. Ry. Co. v. State of Texas, 170 U. S. 243; reversing s. c. 90 Tex. 607.

[1]See ante, pp. 957-959.

[2]State v. Noyes, 47 Me. 189; Washington Bridge Co. v. State, 18 Conn. 53; Benson v. Mayor, etc., of N. Y. 10 Barb. 223; Hegeman v. Western R. R. Co., 13 N. Y. 9; Commonwealth v. Pennsylvania Canal Co., 66 Pa. St. 41; Bailey v. Philadelphia, etc., R. R. Co., 4 Harr. 389; People v. Jackson, etc., Plank Road Co., 9 Mich. 285; Attorney-General v. Chicago, etc., R. R. Co., 35 Wis. 425; Sloan v. Pacific R. R. Co., 61 Mo. 24. See, also, §§ 208, 209.

[3]White’s Creek Turnpike Co. v. Davidson Co., 3 Tenn. Ch. 396. See Detroit v. Plankroad Co., 13 Mich. 140; Goodrel v. Kreichbaum, 70 Iowa, 362.

[1]Pingry v. Washburn, 1 Aiken, 264.

[2]Bailey v. Philadelphia, etc., R. R. Co., 4 Harr. 389.

[3]People v. Jackson, etc, Plankroad Co., 9 Mich. 285.

[4]Salt Creek Val. Turnpike Co. v. Parks, 50 Ohio St. 568; West Alexandria & E. Turnpike Co. v. Gay, 50 Ohio St. 583.

[5]Crawford v. Branch Bank, 7 How. 279; Gowen v. Penobscot R. R. Co., 44 Me. 140; Commonwealth v. Cochituate Bank, 3 Allen, 42.

[1]Stanley v. Stanley, 26 Me. 196; Coffin v. Rich, 45 Me. 507; Hathorne v. Calef, 53 Me. 471; Child v. Coffin, 17 Mass. 64; Gray v. Coffin, 9 Cush. 200; Bissell v. Heath, 98 Mich. 472; Berwind-white Coal Min. Co. v. Ewart, 32 N. Y. S. 716; 11 Misc. Rep. 490; Hirshfield v. Bopp (N. Y.), 39 N. E. 817; Tuttle v. Nat. Bank of the Republic, 161 Ill. 497.

[2]Close v. Noye, 26 N. Y. S. 93; 4 Misc. Rep. 616, following Hawthorne v. Calef, 2 Wall. 10.

[3]Fitzgerald v. Weidenbeck, 76 Fed. 695.

[4]Lincoln, etc., Bank v. Richardson, 1 Greenl. 79; Franklin Bank v. Cooper, 36 Me. 179; Foster v. Essex Bank, 10 Mass. 245; Nevitt v. Bank of Port Gibson, 6 Smedes & M. 513. And a State law of this kind may be made to apply to foreign corporations, in the endeavor to secure a just distribution of their assets lying within the jurisdiction of the State, which enacted the law. McGoon v. Scales, 9 Wall. 31; Stetson v. City Bank, 2 Ohio St. 114; Lewis v. Bank of Kentucky, 12 Ohio St. 132.

[5]Bass v. Roanoke Nav. & W. Power Co., 111 N. C. 439; Ellerbe v. United Masonic Benefit Assn., 114 Mo. 501.

[1]Attorney-General ex rel. Dusenbury v. Looker, 111 Mich. 498.

[2]Tucker v. Russell, 82 Fed. 263.

[3]Cassell v. Lexington, H. & P. Turnpike Co. (Ky.), 9 S. W. 502.

[4]Montana Co. v. St. L. Min. & Milling Co., 152 U. S. 160.

[5]Merchant v. Webster Land Assn. 56-Minn. 327.

[6]Brown v. Mesnard Min. Co., 105 Mich. 653; Brown v. Pontiac Min. Co., 105 Mich. 653; Brown v. Houghton, Circuit Judge, 105 Mich. 653.

[7]Hunter v. Burnsville Pike Co., 56 Ind. 213; Commonwealth v. Farmers’ and Mechanics’ Bank, 21 Pick. 642. See Planters’ Bank v. Sharp, 5 How. 340.

[1]Eagle Ins. Co. of Cincinnati v. State, 153 U. S. 446; Insurance Co. v. Needles, 113 U. S. 574.

[2]Commonwealth v. Farmers’ & Mechanics’ Bank, 21 Pick. 542; Nevitt v. Bank of Port Gibson, 6 Smedes & M. 513; Ward v. Farwell, 97 Ill. 693.

[3]Ward v. Farwell, supra.

[1]Ward v. Farwell, 97 Ill. 608, 609.

[2]Fisher v. Patton, 134 Mo. 32.

[1]Platte & Denver Canal & Milling Co. v. Dowell, 17 Colo. 376.

[2]§§ 90, 105.

[3]Commonwealth v. Morningstar, 144 Pa. St. 103.

[4]Dugger v. Mechanics’ &c. Ins. Co., 95 Tenn. 245.

[5]Daggs v. Orient Ins. Co. of Hartford, 136 Mo. 382.

[6]Union Cent. Life Ins. Co. v. Chowning, 86 Tex. 654.

[1]People v. Squire, 107 N. Y. 593; s. c. 145 U. S. 175; Western Union Tel. Co. v. City of New York, 38 Fed. 552.

[2]Electric Imp. Co. v. City and County of San Francisco., 45 Fed. 593; Electric Imp. Co. v. Scannell, 45 Fed. 596.

[3]Connell v. Western Un. Tel. Co., 108 Mo. 459.

[1]Western Un. Tel. Co. v. Howell, 95 Ga. 194; s. c. 162 U. S. 650.

[2]City of St. Louis v. West. Un. Tel. Co., 148 U. S. 92; City of Philadelphia v. Am. Un. Tel. Co., 167 Pa. St. 406; City of Philadelphia v. Postal Tel. Cable Co., 67 Hun, 21.

[3]New Castle v. Electric Co., 16 Pa. Co. Ct. 663; 26 Pittsb. Leg. J. (n. s.) 197.

[1]City of Boise City v. Artesian Hot & Cold Water Co. (Idaho), 39 P. 562.

[2]See ante, §§ 96, 97.

[3]See ante, § 96.

[1]Waite, Ch. J., in Munn v. Illinois, 94 U. S. 113. See the criticism of this decision in § 96.

[2]See ante, § 209.

[3]§ 96.

[1]Railroads—Chicago, etc., R. R. v. Iowa, 94 U. S. 115; Peck v. Chicago, etc., R. R., 94 U. S. 164, 176; Union Pacific Ry. v. U. S., 99 U. S. 700; Cin., H. & D. R. R. Co. v. Cole, 29 Ohio, 125; Iron R. R. Co. v. Lawrence Furnace Co., 29 Ohio St. 208; Chicago & Alton R. R. Co. v. People ex rel. Koerner, 67 Ill. 11 (16 Am. Rep. 599); Ruggles v. People, 91 Ill. 256; Illinois Cent. R. R. Co. v. People, 95 Ill. 313; Blake v. Winona etc., R. R. Co., 19 Minn. 418 (18 Am. Rep. 345); s. c. 94 U. S. 180; Mobile & M. R. R. Co. v. Steiner, 61 Ala. 559; Chicago B. & Q. Ry. Co. v. Jones, 149 Ill. 361; Southern Pac. Ry. Co. v. Bd. of R. R. Commissioners, 78 Fed. 236; Smith v. Lake Shore & M. S. Ry. Co., 114 Mich. 460; Campbell v. Chicago, M. & St. P. Ry. Co., 86 Iowa, 587; State v. Southern Pac. Ry. Co., 23 Oreg. 424. Contra, Atty.-Gen. v. Chicago, etc., R. R. Co., 35 Wis. 425; Philadelphia, etc., R. R. Co. v. Bowers, 4 Houst. 506. Gas and water companies—Spring Valley Waterworks v. Schottler, 110 U. S. 347; State v. Columbus Gaslight, etc., Co., 34 Ohio St. 216 (32 Am. Rep. 390). Rogers’ Park Water Co. v. Fergus, 178 Ill. 571, where it was held that the power to regulate the water rates was a continuing one, so that the rates may be changed from time to time, at the will of the legislative power. Ferry companies—Parker v. Metropolitan R. R. Co., 109 Mass. 507. Telephone Companies—Hockett v. State, 105 Ind. 599. Bridge companies—Commonwealth v. Covington & C. Bridge Co. (Ky.), 21 S. W. 1042; Covington & C. Bridge Co. v. Commonwealth (Ky.), 22 S. W. 851. Turnpike roads—Covington & L. Turnpike Co. v. Sandford, 164 U. S. 578; Winchester & L. Turnpike Road Co. v. Croxton, 98 Ky. 739; Louisville & T. Turnpike Road Co. v. Boss (Ky.), 44 S. W. 981. A booming company—Proprietors of Machias Boom v. Sullivan, 85 Me. 343.

[2]Rogers Park Water Co. v. Fergus, 178 Ill. 571.

[1]Lake Shore & M. S. Ry. Co. v. Smith, 173 U. S. 684; reversing Smith v. Lake Shore & M. S. Ry. Co., 114 Mich. 460; Beardsley v. N. Y. L. E. & W. Ry. Co. (N. Y. 1900), 56 N. E. 488; reversing s. c. 44 N. Y. S. 175.

[2]173 U. S. 684.

[3]§ 97.

[4]94 U. S. 131.

[5]See ante, §§ 96, 97, where the few cases which the authorities had been able to find are fully discussed. See, also, Deposit Bk. v. Daviess County (Ky.), 39 S. W. 1030.

[1]See ante, § 210.

[2]Ch. J. Waite in Chicago, etc. R. R. Co. v. Iowa, 94 U. S. 155. See, also, Spring Valley Waterworks v. Schottler, 110 U. S. 347; Hamilton v. Keith, 5 Bush, 458; Illinois Cent. R. R. Co. v. People, 95 Ill. 113; Sloan v. Pacific R. R. Co., 61 Mo. 24 (21 Am. Rep. 397); Farmers’ Loan, etc., v. Stone et al., U. S. C. C. Miss., 18 Cent. L. J. 472; Georgia R. R. and Banking Co. v. Smith, 128 U. S. 174; Reagan v. Farmers’ Loan and Trust Co., 154 U. S. 362; Chicago & Grand Trunk Ry. Co. v. Wellman, 143 U. S. 339; Covington & L. Turnpike Road Co., v. Sandford, 164 U. S. 574; City of Danville v. Danville Water Co., 178 Ill. 299; Pingree v. Michigan Cent. R. R. Co. (Mich.), 76 N. W. 635; New Orleans Gas Co. v. Louisiana Light, etc., Co., 115 U. S. 650; Santa Ana Water Co. v. Town of San Buenaventura, 56 Fed. 339.

[1]As in City of Danville v. Danville Water Co., 178 Ill. 299; Pingree v. Michigan Central R. R. Co. (Mich.), 76 N. W. 635. In the last case, the railroad was given the power to fix its own rates “subject only” to a stipulated maximum rate for passengers.

[2]As in Santa Ana Water Co. v. Town of San Buenaventura, 56 Fed. 339.

[1]State v. Southern Pac. Ry. Co., 23 Oreg. 424; Commonwealth v. Covington & C. Bridge Co. (Ky.), 21 S. W. 1042; Commonwealth v. Covington & C. El. Ry. & Bridge & Transfer Co. (Ky.), 21 S. W. 1042; Covington & C. Bridge Co. v. Commonwealth (Ky.), 22 S. W. 851.

[2]Beardsley v. New York L. E. & W. Ry. Co., 15 App. Div. 251; 44 N. Y. S. 175; City of Indianapolis v. Navin, 151 Ind. 139; Columbus Ins. & Banking Co. v. First Nat. Bank, 73 Miss. 96; Sweetzer v. First Nat. Bank, 73 Miss. 96. In the last two cases, the authorization in the charters of the banks, of the power to charge any rate of interest which they may determine, was held to be subject to repeal by subsequent legislation.

[3]Central Trust Co. v. Citizens St. Ry. Co., 82 Fed. 1.

[1]City of Indianapolis v. Navin, 151 Ind. 139.

[2]Cleveland Gaslight & Coke Co. v. City of Cleveland, 71 Fed. 610; Milwaukee Electric Ry. & Light Co. v. City of Milwaukee, 87 Fed. 577; Central Trust Co. of N. Y. v. City of Milwaukee, 87 Fed. 577; San Joaquin & King’s River & Canal Irrigation Co. v. Stanislaus County, 90 Fed. 516; Ball v. Rutland Ry. Co., 93 Fed. 573. See, also, ante, § 97, in which this principle is fully explained, in connection with the general discussion of the subject of the regulation of prices and charges.

[3]Louisville & T. Turnpike Road Co. v. Boss (Ky.), 44 S. W. 981.

[1]U. S. Const., Art. IV., § 2, cl. 1.

[2]See State v. Del. & A. Tel. & Telephone Co., 7 Houst. 269; Daggs v. Orient Ins. Co. of Hartford, Conn., 136 Mo. 382. But it has been held in some cases, while confirming the proposition that a foreign corporation is not a citizen in the constitutional sense, and that it may be excluded from the prosecution of its business within a State, or admitted upon the most arbitrary or discriminating terms, that the statute, imposing these arbitrary and discriminating terms, must be confined in its application to corporations. If it is applied to individuals or natural persons, under the description of firms or unincorporated associations, the statute is in so far void and unconstitutional, because it contravenes the constitutional guaranty of equal privileges and immunities to the citizens of all the States. Barnes v. People, 168 Ill. 425; State v. Stone, 118 Mo. 388; State ex rel. Hoadley v. Board of Insurance Commissioners, 37 Fla. 564.

[1]Liverpool Ins. Co. v. Mass., 1 Wall. 506; Bank of Augusta v. Earle, 13 Pet. 519; Blacke v. McClung, 172 U. S. 239; In re Application of Peter Schoenhofer Brewing Co., 8 Pa. Super. Ct. 141; Purdy v. N. Y. & N. H. R. R. Co., 61 N. Y. 353; Tatem v. Wright et al., 23 N. J. L. 429; Slaughter v. Commonwealth, 13 Gratt. 767; Osborn v. Mobile, 44 Ala. 493; Commonwealth v. Milton, 12 B. Mon. 212; People v. Thurber, 13 Ill. 554; Wood Mowing Machine Co. v. Caldwell, 54 Ind. 270 (23 Am. Rep. 641); Am. Union Tel. Co. v. W. U. Tel. Co., 67 Ala. 26 (42 Am. Rep. 90); Caldwell v. Armour (Del. Super.), 43 Atl. 517. See, contra, Pyrolunite Manganese Co. v. Ward, 73 Ga. 491. It is very common to subject foreign insurance companies to special and strict police regulations. Exempt Firemen’s Fund v. Roome, 93 N. Y. 313 (45 Am. Rep. 217); Thorne v. Travelers’ Ins. Co., 80 Pa. St. 15 (21 Am. Rep. 89); Cincinnati M. H. Assurance Co. v. Rosenthal, 55 Ill. 85 (8 Am. Rep. 626); Pierce v. People, 106 Ill. 11 (46 Am. Rep. 683); Fire Department of Milwaukee v. Helfenstein, 16 Wis. 136. See Doyle v. Ins. Co., 94 U. S. 535; Goodrel v. Kreichbaum, 70 Iowa, 362; State v. Phipps, 50 Kans. 609.

[2]Pembina Con. Silver M. & M. Co. v. Pennsylvania, 125 U. S. 181; Goodrell v. Kreichbaum, 70 Iowa, 362.

[3]St. Louis A. & T. Ry. Co. v. Fire Assn. of Philadelphia, 60 Ark. 325.

[4]Pembina Con. Silver M. & M. Co. v. Pennsylvania, 125 U. S. 181; People v. Wemple, 131 N. Y. 64; State v. Underground Cable Co. (N. J.), 18 A. 581; Honduras Commercial Co. v. State Board of Assessors, 54 N. J. L. 278; McClellan v. Pettigrew, 44 La. Ann. 356; Southern Building & Loan Assn. of Knoxville v. Norman (Ky.), 32 S. W. 952; Moline Plow Co. v. Wilkinson, 105 Mich. 57; Western Union Tel. Co. v. City of Fremont, 39 Neb. 692.

[1]Fire Department of City of New York v. Stanton, 159 N. Y. 225; aff’g 28 App. Div. 334; 51 N. Y. S. 242.

[2]People v. Granite State Provident Assn., 58 N. Y. S. 510; 41 App. Div. 257.

[3]Pierce v. People, 106 Ill. 11 (46 Am. Rep. 683). See, also, Paul v. Virginia, 8 Wall. 168; Hooper v. California, 155 U. S. 648; Hickman v. State, 62 N. J. L. 499; McClellan v. Pettigrew, 44 La. Ann. 356, wherein the license tax was exacted of the resident agent of the foreign corporation. And see State ex rel. Crow v. Fireman’s Fund Ins. Co. (Mo. ’99), 52 S. W. 595, wherein the court sustained the constitutionality of the forfeiture of the licenses to insurance companies, because of their violation of the Missouri anti-trust law, in maintaining a combination through their local agents to fix the rates of insurance. But see, contra to the text, Shaw Piano Co. v. Ford (Tex. Civ. App.), 41 S. W. 198. In this case, a foreign corporation, through an agent, sold a piano stored within the State, without having taken out any permit, as required by the statute. The notes, given in payment of the price, were made payable to the foreign corporation. It was held that it could recover on them, for the reason that they represented the results of an interstate transaction.

[1]Commonwealth v. Standard Oil Co., 101 Pa. St. 119.

[2]Lyon-Thomas Hardware Co. v. Reading Hardware Co. (Tex. Civ. App., 21 S. W. 300; Bateman v. Milling Co., 1 Tex. Civ. App. 90; American Starch Co. v. Bateman (Tex. Civ. App.), 22 S. W. 771; Gunn v. White Sewing Machine Co., 57 Ark. 24.

[3]Butler v. United States Sav. & Loan Co. (Tenn.), 37 S. W. 385; Mutual Benefit L. Ins. Co. v. Winne (Mont.), 49 P. 446.

[1]St. Clair v. Cox, 106 U. S. 350. See Connecticut Mut. Life Ins. Co. v. Spratley, 99 Tenn. 322; s. c. 172 U. S. 602.

[2]Hartford Fire Ins. Co. v. Raymond, 70 Mich. 485; Connecticut Mut. Life Ins. Co. v. Spratley, 99 Tenn. 322; s. c. 172 U. S. 602; Sandall v. Atlanta Mut. Life Ins. Co. (S. C.), 31 S. E. 230; Aetna Standard Iron & Steel Co., 1 Ohio L. D. 180; 1 Ohio C. D. 142.

[3]American Building & Loan Assn. v. Rainbolt, 48 Neb. 434.

[4]New York L. E. & W. Ry. Co. v. Commonwealth, 153 U. S. 628; s. c. 150 Pa. St. 234. In this case, the State statute required the foreign railroad corporations, whose lines extended through Pennsylvania, to collect for the State a certain tax upon that part of its bonded indebtedness, which is held by residents of the State, and to deduct the same from the interest on such bonds. The statute was held to be unconstitutional, so far as it was applied to existing bonds of the corporation, which were issued under the authority of the domicile of the corporation and upon which the interest was alone payable at the home office of the company.

[1]Blake v. McClung, 172 U. S. 239; Maynard v. Granite State Provident Assn., 92 Fed. 435; 34 C. C. A. 438.

[2]People v. Granite State Provident Assn. (N. Y. 1900), 55 N. E. 1053; affg. s. c. 55 N. Y. S. 510; 41 App. Div. 257.

[3]Hargraves Mills v. Harden, 56 N. Y. S. 937; 25 Misc. Rep. 665.

[4]Peik v. Chicago, etc., R. R. Co., 94 U. S. 164; Milnor v. N. Y., etc., R. R. Co., 53 N. Y. 164; McGregor v. Erie Railway, 35 N. J. L. 115.

[1]“What are reasonable regulations, and what are the subjects of police powers must necessarily be judicial questions. The law-making power is the sole judge when the necessity exists, and when, if at all, it will exercise the right to enact such laws.

“Like other powers of government, there are constitutional limitations to the exercise of the police power. The legislature cannot, under the pretense of exercising this power, enact laws not necessary to the preservation of the health and safety of the community that will be oppressive and burdensome upon the citizen. If it should prohibit that which is harmless in itself, or command that to be done which does not tend to promote the health, safety or welfare of society, it would be an unauthorized exercise of power, and it would be the duty of the court to declare such legislation void.

“An ordinance of the city which required a railroad to keep flagman by day and red lantern by night at a certain street crossing, when the company had only a single track, over which only its usual trains passed, and where it did not appear that the crossing was unusually dangerous, or more so than ordinary crossings, was held not to be a reasonable requirement, and therefore within the constitutional limitation on the exercise of the police power.

“A regulation that would require a railroad to place a flagman at such places where danger to public safety, in judgment of prudent persons, might be apprehended at any time, would be a reasonable one.” Toledo, etc., R. R. v. Jacksonville, 67 Ill. 37. See, also, Chicago & Alton R. R. Co. v. People, 67 Ill. 11; State v. East Orange, 12 Vroom, 127; City of Erie v. Erie Canal Co., 59 Pa. St. 174; Phila. W. B. R. R. Co. v. Bowers, 4 Houst. 506; Ladd v. Southern C. P. & M. Co., 53 Tex. 172; Sloan v. Pac. R. R. Co., 61 Mo. 24.

[1]9 West. Jur. 347.

[1]“We apprehend there can be no manner of doubt that the legislature may, if they deem the public good requires it, of which they are to judge, and in all doubtful cases their judgment is final, require the several railroads in the State to establish and maintain the same kind of police, which is now observed upon some of the more important roads in the country for their own security, or even such a police as is found upon the English railways and those upon the continent of Europe. No one ever questioned the right of the Connecticut legislature to require trains upon all their roads to come to a stand before passing draws in bridges; or of the Massachusetts legislature to require the same thing before passing another railroad. And by parity of reason may all railways be required so to conduct themselves, as to other persons, natural or corporate, as not unreasonably to injure them or their property. And since the business of railways is specially dangerous, they may be required to bear the expense of erecting such safeguards, as will render it ordinarily safe to others, as is often required of natural persons under such circumstances.

“There would be no end of illustrations upon this subject, which in detail are more familiar to others than to us. It may be extended to the supervision of the track, tending switches, running upon the time of other trains, running roads with a single track, using improper rails, not using proper precautions by way of safety beams in case of the breaking of axle trees, number of brakemen upon train with reference to number of cars, employing intemperate or incompetent engineers and servants, running beyond a given rate of speed and a thousand similar things, most of which have been made the subject of legislation or judicial determination, and all of which may be.” Thorpe v. Rutland, etc., R. R., 27 Vt. 140. See, also, Richmond, F. & P. R. R. Co. v. City of Richmond, 26 Gratt. 83; s. c. 96 U. S. 521; People v. Boston, etc., R. R. Co., 70 N. Y. 569; State v. East Orange, 12 Vroom, 127; Phila., W. & B. R. R. Co. v. Bowers, 5 Houst. 506; Cin. H. & D. R. R. Co. v. Sullivan, 32 Ohio St. 152; Pittsburg, C. & St. L. R. R. Co. v. Brown, 67 Ind. 45 (33 Am. Rep. 73); Toledo, W., etc., R. R. Co. v. Jacksonville, 67 Ill. 37; Galveston, etc., R. R. Co. v. Gierse, 51 Tex. 189.

[1]Charlotte C. & A. Ry. Co. v. Gibbes, 142 U. S. 386; s. c. 27 S. C. 385.

[2]Minneapolis & St. L. Ry. Co. v. Emmons, 149 U. S. 364; Minneapolis & St. L. Ry. Co. v. Nelson, 149 U. S. 368; Sawyer v. Vt., etc., R. R. Co., 105 Mass. 196; Wilder v. Maine Cent. R. R. Co., 65 Me. 332; Smith v. Eastern R. R. Co., 35 N. H. 336; Bulkley v. N. Y., etc., R. R. Co., 27 Conn. 497; Bradley v. Buffalo, etc., R. R. Co., 34 N. Y. 429; Penn. R. R. Co. v. Riblet, 66 Pa. St. 164 (5 Am. Rep. 360); Thorpe v. Rutland, etc., R. R. Co., 27 Vt. 140; Indianapolis, etc., R. R. Co. v. Marshall, 27 Ind. 300; New Albany, etc., R. R. Co. v. Tilton, 12 Ind. 10; Indianapolis, etc., R. R. Co. v. Kercheval, 16 Ind. 84; Toledo, etc., R. R. Co. v. Fowler, 22 Ind. 316; Indianapolis, etc., R. R. Co. v. Parker, 29 Ind. 471; Ohio & Miss. R. R. Co. v. McClelland, 25 Ill. 140; Gorman v. Pac. R. R. Co., 26 Mo. 441; Jones v. Galena, etc., R. R. Co., 16 Iowa, 6; Winona, etc., R. R. Co. v. Waldron, 11 Minn. 575; Blewett v. Wyandotte, etc., R. R. Co., 72 Mo. 583; Kan. Pac. Ry. Co. v. Mower, 16 Kan. 573; Mo. Pac. Ry. Co. v. Harrelson, 44 Kans. 252; Louisville & Nashville R. R. Co. v. Burke, 6 Caldw. 45. But see, contra, Ohio & M. Ry. Co. v. Todd (Ky.), 15 S. W. 56.

[1]Gillam v. Sioux City, etc., R. R. Co., 26 Minn. 268. It has also been held to be a constitutional exercise of the police power to require the railroads to maintain fences of sufficient height and strength, to effectually keep cattle from straying upon the tracks. Beckstead v. Montana Union Ry. Co. (Mont.), 47 P. 795. And, so, likewise, to require the erection of cattle guards, whenever the adjoining landowner demands them. Birmingham Mineral Ry. Co. v. Parsons, 100 Ala. 662.

[2]New Albany, etc., R. R. Co. v. Tilton, 12 Ind. 3; New Albany, etc., R. R. Co. v. Maiden, 12 Ind. 10. See Poler v. N. Y. Cent. R. R. Co., 16 N. Y. 476; Shepherd v. Buffalo, N. Y. & Erie R. R. Co., 35 N. Y. 641.

[3]As to what degree of care is required of railroads in this connection, see Chicago, etc., R. R. Co. v. Barsie, 55 Ill. 226; Antisdel v. Chicago, etc., R. R. Co., 26 Wis. 145; Lemmon v. Chicago, etc., R. R. Co., 32 Iowa, 151. It has been held not to be a taking of property without due process of law for a statute to allow damages for the diminution of value in a farm, which results from the failure of the company to fence its road, and to construct proper cattle-guards. Minneapolis & St. L. Ry. Co. v. Emmons, 149 U. S. 364; Minneapolis & St. L. Ry. Co. v. Nelson, 149 U. S. 368. A repeal by statute of a provision of the charter of a railroad, that all suits for damages done by the trains to stock must be brought within six months after the infliction of the damage, does not in a constitutional sense impair the obligation of a contract. Louisville & N. Ry. Co. v. Williams (Ky.), 45 S. W. 229.

[4]Cairo, etc., R. R. Co. v. People, 92 Ill. 97 (34 Am. Rep. 112); Barnett v. Atlantic, etc., R. R. Co., 68 Mo. 56 (30 Am. Rep. 773); Spealman v. Railroad Co., 71 Mo. 434; Humes v. Mo. Pac. R. R. Co., 82 Mo. 22 (52 Am. Rep. 369); Tredway v. Railroad Co., 43 Iowa, 527; Welsh v. Chicago, B. & Q. R. R. Co., 53 Iowa, 632; Little Rock & Ft. Scott R. R. Co. v. Payne, 33 Ark. 816 (34 Am. Rep. 55). Contra, Madison, etc., R. R. Co. v. Whiteneck, 8 Ind. 217; Indiana Cent. R. W. Co. v. Gapen, 10 Ind. 292; Atchison & Neb. R. R. Co. v. Baty, 6 Neb. 37 (29 Am. Rep. 356); Grand Island & W. C. Ry. Co. v. Swinbank, 51 Neb. 521; Rio Grande W. Ry. Co. v. Vaughn, 3 Colo. App. 465; Rio Grande W. Ry. Co. v. Whitson, 4 Colo. App. 426; 36 P. 159; Denver & R. G. Ry. Co. v. Outcalt, 2 Colo. App. 443; 31 P. 177; Denver & R. G. Ry. Co. v. Davidson, 2 Colo. App. 443; 31 P. 181; Denver & R. G. Ry. Co. v. Baker, 2 Colo. App. 443; 31 P. 181.

[1]Corwin v. N. Y. & Erie R. R. Co., 13 N. Y. 42; Horn v. Atlantic, etc., R. R. Co., 35 N. H. 169; O’Bannon v. Louisville, etc., R. R. Co., 8 Bush. 348; Jeffersonville, etc., R. R. Co. v. Nichols, 30 Ind. 321; Jeffersonville, etc., R. Co. v. Parkhurst, 34 Ind. 501; Illinois Cent. R. R. Co. v. Arnold, 47 Ill. 173; Hinman v. Chicago, etc., R. R. Co., 28 Iowa, 491; Quackenbush v. Wis. & N. Ry. Co., 71 Wis. 472.

[2]Birmingham Mineral Ry. Co. v. Parsons, 100 Ala. 662; Denver & R. G. Ry. Co. v. Outcalt, 2 Colo. App. 443; 31 P. 177; Denver & R. G. Ry. Co. v. Davidson, 2 Colo. App. 443; Denver & R. G. Ry. Co. v. Baker, 2 Colo. App. 443; Rio Grande & W. Ry. Co. v. Witson, 4 Colo. App. 426; Wadsworth v. Union Pac. Ry. Co., 18 Colo. 600; Union Pac. Ry. Co. v. Kerr, 19 Colo. 273; Schenck v. Union Pac. Ry. Co. (Wyo.), 40 P. 840; Caterill v. Union Pac. Ry. Co., 2 Idaho, 540; Jensen v. Union Pac. Ry. Co., 6 Utah, 253; Jolliffe v. Brown, 14 Wash. 155 (44 P. 149). In State v. Divine, 98 N. C. 778, the statute, which was declared to be unconstitutional, only made the killing of live stock by the locomotive prima facie evidence of negligence.

[1]Ohio & Mississippi R. R. Co. v. Lackey, 78 Ill. 55 (20 Am. Rep. 259). But see Pennsylvania R. R. Co. v. Riblet, 66 Pa. St. 164 (5 Am. Rep. 360), in which it was held to be competent for the legislature to compel an existing railroad to repair all fences along its route that may be destroyed by fire from its engines. See, to the same effect, Lyman v. Boston, etc., R. R. Co., 4 Cush. 288; Gorman v. Pac. R. R. Co., 26 Mo. 441; Rodemacher v. Milwaukee, etc., R. R. Co., 41 Iowa, 297 (20 Am. Rep. 592).

[2]Sweetland v. Atchison, T. & S. F. Ry. Co. (Colo.), 43 P. 1006; Wadsworth v. Union Pac. Ry. Co., 18 Colo. 600; Jolliffe v. Brown, 14 Wash. 155; 44 P. 149; Navigation Co. v. Smalley, 1 Wash. 206.

[3]St. Louis & S. F. Ry. Co. v. Mathews, 161 U. S. 1; Mathews v. St. Louis & S. F. Ry. Co., 121 Mo. 298; Campbell v. Mo. Pac. Ry. Co., 121 Mo. 340; Lumberman’s Mut. Ins. Co. v. Kansas City, Ft. S. & M. Ry. Co., 149 Mo. 165; McCandless v. Richmond & D. Ry. Co., 38 S. C. 103; Mobile Ins. Co. v. Columbia & Greenville Ry. Co., 41 S. C. 408; Lipfeld v. Charlotte C. & A. Ry. Co., 41 S. C. 285; Union Pac. Ry. Co. v. DeBusk, 12 Colo. 294; Union Pac. Ry. Co. v. Arthur, 2 Colo. App. 159; Union Pacific Ry. Co. v. Tracy, 19 Colo. 331; Lake Erie & W. Ry. Co. v. Falk, 16 Ohio, C. C. 125; Baltimore & Ohio R. R. Co. v. Kreager (Ohio), 56 N. E. 203; Cleveland L. & W. Ry. Co. v. Ringley, id., Lake Erie & W. Ry. Co. v. Falk, id.

[4]McCandless v. Richmond & D. Ry. Co., 38 S. C. 103; Lipfeld v. Charlotte, C. & A. Ry. Co., 41 S. C. 285; Campbell v. Mo. Pac. Ry. Co., 121 Mo. 340.

[1]Baltimore & Ohio S. W. Ry. Co. v. Tripp, 175 Ill. 251.

[2]Leavitt v. Canadian Pac. Ry. Co., 90 Me. 153; Choctaw, O. & G. Ry. Co. v. Alexander (Okl.), 52 P. 944.

[3]Mo. Pac. Ry. Co. v. Mackey, 127 U. S. 205; Minneapolis & St. L. Ry. Co. v. Herrick, 127 U. S. 210; Pittsburg, C. C. & St. L. Ry. Co. v. Montgomery, 152 Ind. 1.

[4]Peoria &c. R. R. Co. v. Duggan, 109 Ill. 537 (50 Am. Rep. 619); Perkins v. St. Louis, I. M. & S. Ry. Co., 103 Mo. 52; Briggs v. St. Louis, I. M. & S. Ry. Co., 111 Mo. 168; Atchison T. & S. F. Ry. Co. v. Mathews, 58 Kans. 447; Gulf, C. & S. F. Ry. Co. v. Ellis, 87 Tex. 19.

[5]Gulf, C. & S. F. Ry. Co. v. Ellis, 165 U. S. 150; reversing s. c. 87 Tex. 19.

[1]Wilder v. Chicago & W. M. Ry. Co., 70 Mich. 382; Schut v. Chicago & W. M. Ry. Co., 70 Mich. 433; Lafferty v. Chicago & W. M. Ry. Co., 71 Mich. 35.

[2]Fitchburg R. R. Co. v. Grand Junction R. R. Co., 1 Allen, 552; s. c. 4 Allen, 198; Pittsburg, etc., R. R. Co. v. S. W. Penn. R. R. Co., 77 Pa. St. 173; Chicago M. & St. P. Ry. Co. v. City of Milwaukee, 97 Wis. 418; Wabash Ry. Co. v. City of Defiance, 167 U. S. 88; New York & N. E. Ry. Co. v. Town of Bristol, 151 U. S. 556; affirming s. c. 62 Conn. 527; Woodruff v. Catlin, 54 Conn. 277; Westbrook’s Appeal, 57 Conn. 95; N. Y. & N. E. Ry. Co.’s Appeal, 58 Conn. 532; Woodruff v. Railroad Co., 59 Conn. 63; State’s Attorney v. Branford, 59 Conn. 402; N. Y. & N. E. Ry. Co. v. Waterbury, 60 Conn. 1; Middletown v. N. Y. & H. Ry. Co., 62 Conn. 492; Mooney v. Clark, 69 Conn. 241; Selectmen of Norwood v. New York & N. E. Ry. Co., 161 Mass. 259. In Woodruff v. Catlin, 54 Conn. 277, the Supreme Court of Connecticut stated in part: “The act, in scope and purpose, concerns protection of life. Neither in intent nor fact does it increase or diminish the assets either of the city or of the railroad corporations. It is the exercise of the governmental power and duty to secure a safe highway. The legislature having determined that the intersection of two railways with a highway in the city of Hartford at grade is a nuisance dangerous to life, in the absence of action on the part either of the city or of the railroads, may compel them severally to become the owners of the right to lay out new highways and new railways in such land and in such manner as will separate the grade of the railways from that of the highway at intersection; may compel them to use the right for the accomplishment of the desired end; may determine that the expense shall be paid by either corporation alone or in part by both; and may enforce obedience to its judgment. That the legislature of this State has the power to do all this, for the specified purpose, and to do it through the instrumentality of a commission, it is now only necessary to state, not to argue.” And, in affirming the judgment of the Supreme Court of Connecticut, in the case of N. Y. & N. E. Ry. Co. v. Town of Bristol, the Supreme Court of the United States, after a very full statement of the arguments of the counsel for the railroad, declared emphatically in favor of the right of the State, if it should see fit, to impose upon the railroad the entire expense of a change of grade in crossings; Chief Justice Fuller making use of the following language: “The conclusions of this court have been repeatedly announced to the effect that though railroad corporations are private corporations, as distinguished from those created for municipal and governmental purposes, their uses are public, and they are invested with the right of eminent domain, only to be exercised for public purposes; that therefore they are subject to legislative control in all respects necessary to protect the public against danger, injustice, and oppression; that the State has power to exercise this control through boards of commissioners; that there is no unjust discrimination and no denial of the equal protection of the laws in regulations applicable to all railroad corporations alike; nor is there necessarily such denial nor an infringement of the obligation of contracts in the imposition upon them in particular instances of the entire expense of the performance of acts required in the public interest, in the exercise of legislative discretion; nor are they thereby deprived of property without due process of law, by statutes under which the result is ascertained in a mode suited to the nature of the case, and not merely arbitrary and capricious; and that the adjudication of the police power of the State, that, in such particulars, a law enacted in the exercise of the police power of the State, is valid, will not be reversed by this court on the ground of an infraction of the constitution of the United States. Railroad Co. v. Alabama, 128 U. S. 96; Georgia R. & B. Co. v. Smith, 128 U. S. 174; Railway Co. v. Beckwith, 129 U. S. 26; Dent v. West Virginia, 129 U. S. 114; Railroad Co. v. Gibbes, 142 U. S. 386; Railroad Co. v. Emmons, 149 U. S. 364.” But see People v. Detroit, G. H. & M. Ry. Co., 79 Mich. 471, in which it was held that it was unreasonable, after a railroad had for forty years maintained at its own expense a farm crossing, convenient for the use of every one in the neighborhood, to require the railroad to provide and maintain at its own expense a residence crossing in immediate proximity to a house which has been subsequently built, so that the railroad tract shall be between the residence and the highway. And, so, also, it has been held in Texas, that a law which requires railroad companies to make farm crossings within the inclosures of private landowners, is unconstitutional, so far as it is applied to companies, who have acquired their right of way and had fenced in their tracks, prior to the enactment of the statute. San Antonio & A. P. Ry. Co. v. Bell (Tex. Civ. App.), 32 S. W. 374. These two Western cases are to be distintinguished from the cases cited above, in that they involve the provision for private farm crossings for the more or less exclusive benefit of private landowners; while the Eastern cases, above cited, are more reasonable, in that they relate to the intersection with the railroad tracks of streets and highways.

In Nebraska, an ordinance requiring two railroads to change specific portions of a viaduct, was sustained. Chicago B. & Q. Ry. Co. v. State, 47 Neb. 549.

[1]Mobile, etc., R. R. Co. v. State, 51 Miss. 137.

[2]Rockford, etc., R. R. Co. v. Hillmer, 72 Ill. 235; Chicago, Rock Island, etc., R. R. Co. v. Reidy, 66 Ill. 43; Mobile & Ohio R. R. Co. v. State, 51 Miss. 137; Horn v. Chicago, etc., R. R. Co., 38 Wis. 463; Haas v. Chicago & N. W. R. R. Co., 41 Wis. 44; Erb v. Morasch (Kans. App.), 54 P. 323; 60 Kans. 251.

[1]Veazie v. Mayo, 45 Me. 560; s. c. 49 Me. 156; Commonwealth v. Eastern R. R. Co., 103 Mass. 254 (4 Am. Rep. 555); Bulkley v. N. Y. & N. H. R. R. Co., 27 Conn. 486; Stuyvesant v. Mayor, etc., of New York, 7 Cow. 588; Pittsburg, Cin. & St. L. R. R. Co. v. Brown, 67 Ind. 45 (33 Am. Rep. 73); Galena v. Chicago, U. R. R. Co. v. Dill, 22 Ill. 264; Ohio & M. R. R. Co. v. McClelland, 25 Ill. 140; Chicago, etc., R. R. Co. v. Triplett, 38 Ill. 482; Clark’s Administrator v. Hannibal & St. Jo. R. R. Co., 36 Mo. 202; Tobias v. Mich. Cent. Ry. Co., 103 Mich. 330.

[2]Toledo, etc., R. R. Co. v. Jacksonville, 67 Ill. 37; Lake Shore & M. S. Ry. Co. v. Cincinnati, S. & C. Ry. Co., 30 Ohio St. 604.

[3]People v. Boston & Albany R. R. Co., 70 N. Y. 569. But it would be unconstitutional to require railroad companies to build crossings at the intersection of their road with a highway, which had been constructed after the railroad has been built. City of Erie v. Erie Canal Co., 59 Pa. St. 174; Ill. Cent. R. R. Co. v. Bloomington, 76 Ill. 447. See ante, pp. 997-999, same section, on the regulation of grade crossings in general.

[1]Portland, S. & P. R. R. Co. v. Boston and Maine R. R. Co., 65 Me. 122; State ex rel. Abbott v. Hicks, Judge, 44 La. Ann. 770; The Sue, 22 Fed. 843; Logwood v. Memphis, etc., R. R. Co., 23 Fed. 318; McGuinn v. Forbes, 37 Fed. 639; Houck v. South Pac. Ry., 38 Fed. 226; Heard v. Ga. R. R. Co., 3 Int. Com. Com’r, 111; s. c. 1 Ibid. 428; Day v. Owen, 5 Mich. 520; Louisville, N. O. & T. Ry. Co., 66 Miss. 662; State v. Smith, 100 Tenn. 494; Chesapeake & Ohio Ry. Co. v. Commonwealth (Ky. ’99), 51 S. W. 160; Chesapeake, etc., R. R. Co. v. Wells, 85 Tenn. 613; Memphis, etc., R. R. Co. v. Benson, 85 Tenn. 627; People v. King, 110 N. Y. 418.

[2]Jacobson v. Wisconsin, M. & St. P. Ry., 71 Minn. 519.

[3]Chicago, B. & Q. Ry. Co. v. State, 170 U. S. 57.

[4]See, ante, § 212. The State may require all railroad companies to post up in its stations schedules of the rates of fare and freight, without violating any constitutional provision. Railroad v. Fuller, 17 Wall. 560.

[1]As to the constitutionality of these laws in general, see, ante, § 95.

[2]Hall v. De Cuir, 95 U. S. 485; Alexander & Washington R. R. Co. v. Brown, 17 Wall. 445; Chicago & N. W. Ry. Co. v. Williams, 55 Ill. 185; Coger v. N. W. Union Packet Co., 37 Iowa, 145.

[3]West Chester & P. R. R. Co. v. Miles, 55 Pa. St. 209; Central R. R. Co. v. Green, 86 Pa. St. 421; Chicago & N. W. Ry. Co. v. Williams, 55 Ill. 185.

[4]133 U. S. 587.

[1]163 U. S. 537.

[2]100 U. S. 303.

[3]Virginia v. Rives, 100 U. S. 313; Neal v. Delaware, 103 U. S. 370; Bush v. Kentucky, 107 U. S. 110; Gibson v. Mississippi, 162 U. S. 565.

[4]Railway Company v. Brown, 17 Wall. 445.

[1]Hall v. De Cuir, 95 U. S. 485.

[2]Smith v. Chamberlain, 38 S. C. 529.

[3]Rae v. Grand Trunk Ry. Co., 14 Fed. Rep. 401.

[4]Railroad Commissioners v. Portland, etc., R. R. Co., 63 Me. 269 (18 Am. Rep. 208); State v. New Haven, etc., R. R. Co., 43 Conn. 351; Davidson v. State, 4 Tex. Ct. App. 545 (30 Am. Rep. 166); Chicago & Alton R. R. Co. v. People, 105 Ill. 657; Illinois Cent. Ry. Co. v. People, 143 Ill. 434; State v. Kansas City, Ft. S. & G. Ry. Co., 32 Fed. 722; Gladson v. State of Minnesota, 166 U. S. 427; s. c. 57 Minn. 387; Lake Shore & M. S. Ry. Co. v. Ohio, 173 U. S. 285.

[5]St. Joseph & Denver City R. R. Co. v. Ryan, 11 Kan. 602 (15 Am. Rep. 357); Marsh v. Fairburg, etc., R. R. Co., 64 Ill. 414 (16 Am. Rep. 564); St. Louis, etc., R. R. Co. v. Mathers, 71 Ill. 592 (22 Am. Rep. 122).

[1]Pennsylvania Ry. Co. v. State, 142 Ind. 428; State v. Pennsylvania Ry. Co., 133 Ind. 700; State v. Ind. & I. S. Ry. Co., 133 Ind. 69.

[2]Village of St. Bernard v. C. C. C. & St. L. Ry. Co., 4 Ohio L. D. 371.

[3]Jones v. Ala. & V. Ry. Co., 72 Miss. 220.

[4]New York, N. H. & H. Ry. Co. v. State of New York, 165 U. S. 628, 632.

[5]State v. Heidenhain, 42 La. Ann. 483.

[6]State v. Smith, 58 Minn. 35; State v. Hoskins, 58 Minn. 35.

[7]Gulf, C. & S. F. Ry. Co. v. Gray (Tex. Civ. App.), 24 S. W. 837.

[8]State v. Balt. & Ohio R. R. Co., 24 W. Va. 783 (49 Am. Rep. 290).

[9]Nash. C. & St. L. Ry. Co. v. Alabama, 128 U. S. 96.

[10]Ft. Worth & D. Ry. Co. v. Lillard (Tex.), 16 S. W. 654.

[11]State v. Chicago, M. & St. P. Ry. Co., 68 Minn. 381; State v. Great Northern Ry. Co., 68 Minn. 381; State v. Chicago Great Western Ry. Co., 68 Minn. 381; State v. Minneapolis, St. P., etc., Ry. Co., 68 Minn. 381.

[1]Pennsylvania Ry. Co. v. Com. (Pa.), 7 A. 368; Gulf, C. & S. F. Ry. Co. v. State, 72 Tex. 404; Louisville & N. Ry. Co. v. Commonwealth (Ky.), 31 S. W. 476. See, Alexandria Bay Steamship Co. v. N. Y. C. & H. Ry. Co., 45 N. Y. S. 1091, in which, in the interpretation of such a law, a distinction was made between the combination of competing parallel lines, and the arrangements for continuous transportation, which might be made between connecting lines.

[2]Commonwealth v. Chesapeake & O. Ry. Co. (Ky.), 40 S. W. 250.

[3]Dillon v. Erie Ry. Co., 43 N. Y. S. 320; Beardsley v. N. Y. L. E. & W. Ry. Co., 44 N. Y. S. 175.

[4]Smith v. Lake Shore & M. S. Ry. Co., 114 Mich. 460.

[5]Lafarier v. Grand Trunk Ry. of Canada, 84 Me. 286; Georgia R. R. & Bkg. Co. v. Clarke, 97 Ga. 706.

[1]Railroad Commissioners v. Portland, etc., R. R. Co., 63 Me. 269 (18 Am. Rep. 208).