the company constituting a contract vesting in it authority over these matters, subject to the limitation that the carriage is not required without reward or upon conditions amounting to the taking of property for public use without just compensation, and that what is done does not amount to a regulation of foreign or interstate commerce.'

The control of commerce, being in the Federal government, is not to be restricted by state authority. A state statute cannot regulate rates for interstate commerce.' The power of a state to limit railroad charges for transportation can only be bargained away, if at all, by words of positive grant or their equivalent. Railroad companies are subject to legislative control as to their rates of fare and freight, unless protected by their charters, or unless what is done amounts to a regulation of foreign or interstate commerce.' The Legislature, in the exercise of its power of regulating freights and fares, may classify the railroads according to the length of their lines, if the same rule is applied to all roads of the same class. If the classification operates uniformly, the court cannot decide whether it was the best that could have been made.

The power to regulate a carrier's rates is not a power to destroy, and limitation is not the equivalent of confiscation. General statutes fixing maximum rates of charges for transportation, when not forbidden by charter contracts, do not deny to the railroad companies the equal protection of the laws, or deprive them of their property without due process of law, within the meaning of the 14th Amendment." A power of government which actually

Georgia R. & Bkg. Co. v. Smith, 128 U. S. 174, 32 L. ed. 377; Dow v. Bei-
delman, 2 Inters. Com. Rep. 56, 125 U. S. 680, 31 L. ed. 841.
Pembina Consol. S. Min. & Mill. Co. v. Pennsylvania, 2 Inters. Com. Rep.
24, 125 U. S. 181, 31 L. ed. 650.

Wabash, St. L. & P. R. Co. v. People, 1 Inters. Com. Rep. 31, 118 U. S. 557,
30 L. ed. 244.

Stone v. Farmers L. & T. Co. (“R. R. Commission Cases") 116 U. S. 307, 29 L. ed. 636. See also Chicago, B. & Q. R. Co. v. Cutts, 94 U. S. 155, 24 L. ed. 94; Chicago, M. & St. P. R. Co. v. Ackley, 94 U. S. 179, 24 L. ed. 99; Winona & St. P. R. Co. v. Blake, 94 U. S. 180, 24 L. ed. 99; Ruggles v. Illinois, 108 U. S. 526, 27 L. ed. 812; Illinois Cent. R. Co. v. Illinois, 108 U. S. 541, 27 L. ed. 818.

'Dow v. Beidelman, 2 Inters. Com. Rep. 56, 125 U. S. 680, 31 L. ed. 841. "Chicago, M. & St. P. R. Co. v. Minnesota, 134 U. S. 418, 83 L. ed. 970. "Stone v. Farmers L. & T. Co. 116 U. S. 307, 29 L. ed. 636.

exists is not lost by non-user.' The police power may protect business interests by prohibiting discriminations, by regulating tariffs, by enforcing facilities for the public. The Interstate Commerce Act of Congress illustrates this proposition."

Because individuals may serve for hire, or may, without compensation, donate their services, it does not follow that common carriers by rail may do the same thing. Although the company owns the property, it is also in the enjoyment of a public franchise; and in the control of the property it has not the same measure of power that persons have and exercise over property that is affected by no public use, and operated without the exercise of any public franchise."

The Supreme Court of the United States has upheld statutes which have been enacted in many states to regulate the compensation of railroad companies within their jurisdiction for the carriage of persons and goods. In the construction of the general corporation law of the state of Iowa, Chief Justice Waite says: "Railroad companies are carriers for hire. They are incorporated as such and given extraordinary powers, in order that they may the better serve the public in that capacity. They are therefore engaged in a public employment, affecting the public interest; and subject to legislative control as to their rates of fare and freight, unless protected by their charters.* 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. Neither does it affect

the case that before the power was exercised the company had pledged its income as security for the payment of debts incurred, and had leased its road to a tenant that relied upon the earnings for the means of paying the agreed rent."

A railroad company brought an action to recover a reasonable compensation for its services in the transportation of goods, which exceeded the maximum prescribed by the legislature of the state

'Chicago, B. & Q. R. Co. v. Cutts, 94 U. S. 155, 24 L. ed. 94; Leisy v. Har din, 135 U. S. 100, 34 L. ed. 128.

Boston & M. R. Co. v. York County Comrs. 4 New Eng. Rep. 657, 79 Me. 386.

Samuels v. Louisville & N. R. Co. 31 Fed. Rep. 57.

Chicago, B. & Q. R. Co. v. Cutts, 94 U. S. 155, 24 L. ed. 94.

Munn v. Illinois, 94 U. S. 113, 24 L. ed. 77.

of Wisconsin, and Chief Justice Waite said, in the opinion: "As between the company and a freighter, there is a statutory limitation of the charge for transportation actually performed;

but for goods actually carried, the limit of the recovery is that prescribed by the statute.'

991

In referring to the Union Pacific Railroad Company, Chief Justice Waite says: "This corporation is a creature of the United States. It is a private corporation created for public purposes; and its property is to a large extent devoted to public uses. It is therefore subject to legislative control so far as its business affects the public interests.” *

Chief Justice Waite reaffirms this principle, and observes: “It is now settled in this court that a state has the power to limit the amount of charges by railroad companies for the transportation of persons and property within its own jurisdiction, unless restrained by some contract in the charter, or unless what is done amounts to a regulation of foreign or interstate commerce." The dissent upon the question of state legislation fixing rates by carriers among the members of the Supreme Court of the United States has not been upon the question of original power, but whether the state had not resigned the power in granting a charter.

Mr. Justice Field said: "The incorporation of the company, by which numerous parties are permitted to act as a single body for the purpose of its creation, or, as Chief Justice Marshall expresses it, by which the character and properties of individuality' are bestowed on a collective and changing body of men," the grant to it of special privileges to carry out the object of its incorporation, particularly the authority to exercise the state's right of eminent domain that it may appropriate needed property, -a right which can be exercised only for public purposes; and the obligation assumed by the acceptance of its charter, to trans'Chicago, M. & St. P. R. Co. v. Ackley, 94 U. S. 179, 24 L. ed. 99. Sinking Fund Cases, 99 U. S. 700, 25 L. ed. 496.

Stone v. Farmers L. & T. Co. (R. R. Commission Cases), 116 U. S. 307, 29 L. ed. 636. See also Leisy v. Hardin, 135 U. S. 100, 34 L. ed. 128; Munn v. Illinois, 94 U. S. 113, 24 L. ed. 77; Peik v. Chicago & N. W. R. Co. 94 U. S. 164, 24 L. ed. 97; Winona & St. P. R. Co. v. Blake, 94 U. S. 180, 24 L. ed. 99; Stone v. Wisconsin, 94 U. S. 181, 24 L. ed. 102; Ruggles v. Illinois, 108 U. S. 526, 27 L. ed. 812; Dow v. Beidelman, 2 Inters. Com. Rep. 56,125 U. S. 680, 31 L. ed. 841.

Providence Bank v. Billings, 29 U. S. 4 Pet. 514, 562, 7 L. ed. 939, 956.

port all persons and merchandise, upon like conditions and upon reasonable rates,-affect the property and employment with a public use; and where property is thus affected, the business in which it is used is subject to legislative control. So long as the use continues, the power of regulation remains; and the regulation may extend not merely to provisions for the security of passengers and freight against accidents, and for the convenience of the public, but also to prevent extortion by unreasonable charges, and favoritism by unjust discriminations. This is not a new, but old doctrine, always asserted whenever property or business is, by reason of special privileges received from the government, the better to secure the purposes to which the property is dedicated or devoted, affected with a public use. There have been differences of opinion among the judges of this court in some cases as to the circumstances or conditions under which some kinds of property or business may be properly held to be thus affected,' but none as to the doctrine that, when such use exists, the business becomes subject to legislative control in all respects necessary to protect the public against damage, injustice and oppression. In almost every case which has been before this court, where the power of the state to regulate the rates and charges of railroad companies for the transportation of persons and freight within its jurisdiction has been under consideration, the question discussed has not been the original power of the state over the subject, but whether that power had not been, by stipulations of the charter, or other legislation, amounting to a contract, surrendered to the company, or been in some manner qualified. It is only upon the latter point that there have been differences of opinion.":

The local statutes regulating carriers are founded upon the police power of the states. No court has attempted to define this power with precision, although the general principles applicable thereto have been established firmly in jurisprudence. Chief Justice Shaw uses this language: "We think it is a settled principle, growing out of the nature of well ordered civil society, that every holder of property, however absolute, and unqualified may be his title, holds it under the implied liability that his use

'Munn v. Illinois, 94 U. S. 113, 126, 139, 146, 24 L. ed. 77, 84, 89, 91. "Georgia R. & Bkg. Co. v. Smith, 128 U. S. 174, 32 L. ed. 377.

of it may be so regulated that it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. .

. Rights of property, like all other social and conventional rights are subject to such reasonable limitations in their enjoy. ment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law as the legislature, under the governing and controlling power vested in them by the constitution, may think necessary and expedient. The power we allude to is rather the police power, the power vested in the legislature by the constitution to make. ordain and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same.'

991

Chief Justice Redfield said, in an opinion: "We think the power of the legislature to control existing railways in this respect may be found in the general control over the police of the country, which resides in the law making power in all free states.

The police power of the state extends to the protection of the lives, limbs, health, comfort and quiet of all persons, and the protection of all property within the state. According to the maxim, sic utere tuo ut alienum non ladas, which being of universal application, it must of course be within the range of legislative action to define the mode and manner in which everyone may so use his own as not to injure others. So far as railroads are concerned, this police power, which resides primarily and ultimately in the legislature, is twofold."*

In discussing this legislation, Pierce on Railroads, 460, says: "Such laws may incidentally impair the value of franchises, or of

Com v. Alger, 7 Cush. 53.

Thorpe v. Rutland & B. R. Co. 27 Vt. 140. See State v. Winona & St. P. R. Co. 19 Minn. 434 (Gil, 377). affirmed, 94 U. S. 180, 24 L. ed. 244; Watertown v. Mayo, 109 Mass. 315; Com. v. Certain Intoxicating Liquors, 115 Mass. 153, affirmed, 97 U. S. 25, 24 L. ed 989; Northwestern Fertilizing Co. v. Hyde Park, 97 U. S. 659, 24 L. ed. 1036: New Orleans Gas Light Co. v. Louisiana L. & H. P. & Mfg. Co. 115 U. S. 650, 29 L. ed. 516; Mugler v. Kansas, 123 U. S. 623, 31 L. ed. 205; Rodemacher v. Milwaukee & St. P. R. Co. 41 Iowa, 297.