fact that injured individuals may have private remedies for the damages they have sustained by neglect of corporate duties precludes the State from its remedy by mandamus.1 An injunction at the suit of the State will not lie to compel a railroad company to complete its road. It seems that a court will not enforce the operation of an abandoned railroad by injunction. 1.3 So a specific contract to operate a railroad will not be enforced in equity.4 to the latter objection is that granting the writ is discretionary with the court, and it may well be assumed that it will not be unnecessarily granted." See High on Ex. Rem. § 431, 433, for conflicting decisions on the question. 1. Where the injury is to a single person under circumstances which do not affect the general public, the courts, in the exercise of their discretion, have properly refused this remedy on his relation. The injured party is then the suitor; he has an adequate remedy by private action for damages. That was the case of People ex rel. Ohlen v. Erie Railway Company, [22 Hun], (N. Y.), 533 in which the court held that the relator's remedy was by suit for damages and not by mandamus." People v. N. Y. C., etc., R. Co., 28 Hun (N. Y.), 554. 2. An information was filed praying a declaration that the railroad companies therein named were bound to construct the whole of certain lines of railway, and to open the whole for public traffic simultaneously, and for an injunction to prevent them from making one line without another, and from opening one line until another was made, or until the notices to treat were given to the land-owners preliminary to making such other line. A general demurrer to this bill was allowed, the vice chancellor guarding himself from expressing any opinion as to what he should have done if this had been a bill by a shareholder, or an information and bill instead of an information only. Atty.-Gen. v. Birmingham & Oxford Junc. R. Co., 7 Eng. L. & Eq. 283. Whether a corporation has violated its charter or forfeited its franchise is a question solely for the determination of a court of law. But when a bridge company, setting up an exclusive right within certain limits, asks an injunction to prohibit the building of a bridge within such limits, a court of equity will not lend its assistance when it appears from the answer that the bridge of the complainants has been so far appropriated to the uses of a railroad as to render it inconvenient and dangerous for ordinary travel. President, etc., v. Trenton City Bridge Co., 2 Beas. Ch. (13 N. J. Eq) 47. Approved in Troy & Boston R. Co. v. Boston, Hoosac Tunnel, etc., Co., 86 N. Y. 107, 125. In the latter case. plaintiff sought injuction against another company to restrain it from locating upon a longtime-abandoned road of plaintiff's. The injunction was refused. Whatever rights plaintiff may have must be asserted at law. Danforth, J., said, at page 127: "And although the form of actions and suits, and the distinction between actions at law and suits in equity have been abolished, a party, to entitle himself to the equitable remedy by injunction, must still make such a case as would, while the distinction existed, have made an equitable cause of action." Citing N. Y. Life Ins. Co. v. Supervisors of N. Y., 4 Duer (N. Y.), 192; Pumpelly . Village of Oswego, (court of appeals), 45 How. Pr. (N. Y.) 259. 260; Heywood v. City of Buffalo, 14 N. Y. 534; Albany Northern R. v. Brownell, 24 N. Y. 348. "A court of equity will not by injunction protect a naked legal right, which the complainant and those under him have covenanted not to exercise" (Bosley v. McKim, 7 H. & J. 468), applied in Troy & Boston R. Co. v. Boston, Hoosac Tun., etc., Co.. 86 N. Y. 107, 130, where a lessee company, which had in the case agreed not to operate the portion of road leased to it, was denied protection in equity against another company which years afterward entered upon such abandoned portion. 3. Troy & Boston R. Co. v. Boston, Hoosac Tunnel & W. R. Co., 86 N. Y. 107, 124. 4. Port Clinton R. Co. v. Cleveland, etc., R. Co., 13 Ohio St. 544. 549; Blanchard v. Detroit, etc.. R. Co., 31 Mich. 54: Peto v. Brighton, etc., R. Co., I H. & M. 468; Johnson 7. Shrewsbury, etc., R. Co., 3 De G., M. & G. 914: McCann v. Nashville R. Co., 2 Tenn. Ch. 775: Atlanta, etc.. R Co. v. Speer, 32 Ga. 550, 553. See also Raynor v. Stone, 2 Eden, 128; Gervais 7. Edwards, 2 Dru. & W. V. FRANCHISES AS CONTRACTS.-1. Generally.-The rule established in the Dartmouth College Case, that the grant of franchises in the charter of a corporation constitutes a contract the obligation of which cannot be impaired by subsequent legislation, is settled beyond dispute. The rule has been criticised, but whatever force there may be in the objections, they seem to result in nothing that is valuable from any other than a theoretical standpoint. Not only has the rule withstood all attacks, but injurious consequences have been averted by its further explanation and by legislation. Closely allied to the rule are two other principles, equally well-settled, and so important in their effect upon it that they may sometimes seem to nullify the rule. Under the first of these principles every grant of franchises, being in derogation of common right, receives a strict construction; 3 under the second every charter and the grants it contains is accepted subject to the police power of the State, which cannot be bartered away.1 Finally, the right is now commonly reserved in State constitutions, general laws, or the charters themselves to amend or repeal the charters of private corporations. But in many instances the rule has operated to protect various franchises of corporations of which the following are examples: Lawfully granted monopolies ;6 donation of an annual sum to a college; exemption from taxation; the right to charge more than the usual rate of interest; right of eminent domain; 10 right to fix a tariff of charges on a public road; 11 right of forming a new corporation by consolida 80; Blackett v. Bates, L. R. 1 Ch. App. 117; Marble Co. v. Ripley, 10 Wall. (U. S.) 339. approving Port Clinton R. Co. v. Cleveland & Toledo R. Co., 13 Ohio St. 544, cited supra; Hood v. Northeastern R. Co., L. R. 8 Eq. 666; L. R. 5 Ch. 525; Del., etc., R. Co. v. Erie R. Co., 21 N. J. Eq. 303. See, as illustrating the subject, Baldwin v. Society, etc., of Useful Knowledge, 9 Sn. 393; Hamblin v. Dinneford, 2 Ed. Ch. (N. Y.) 529; De Revafinoli v. Corsetti, 4 Paige (N. Y.), 264; Sanquirico v. Benedetti, 1 Barb. (N. Y.) 315; Dodd z. Seymour, 21 Conn. 476; Waters v. Tayor, 15 Ves 10-25. 1. Greenwood v. Freight Co., 105 U. S. 13; Edwards v. Kearzey, 96 U. S. 607; Sinking Fund Cases, 99 U. S. 748; People v. O'Brien, 111 N. Y. 49. See also list of authorities, CORPORATIONS, 4 Am. & Eng. Encyc. of Law, 298; and same title, 4 Am. & Eng. Encyc. of Law, 209. 2. Toledo Bank v. Bond, I Ohio St. 622; Mechanics', etc., Bank v. Debolt, 1 Ohio St. 591; Skelly v. Jefferson Branch Bank, 9 Ohio St. 606; Morawetz on Corporations (2d ed.), SS 1045 et seq., Tay. lor on Corporations, § 450. 9 3. See CORPORATIONS, 4 Am. & Eng. Encyc. of Law, 212. 4. See CORPORATIONS, 4 Am. & Eng. Encyc. of Law, 212. 5. See CORPORATIONS, 4 Am. & Eng. Encyc. of Law, 211. 6. Gibbons v. Ogden, 9 Wheat. (U. S.) 74; Slaughter-House Cases, 16 Wall. (U. S.) 65. And the monopoly may be made irrevocable. New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 665. 7. Visitors, etc.. of St. John's College 7. Maryland, 15 Md. 330. 8. University v. People, 99 U. S. 309; Home of the Friendless v. Rouse, 8 Wall. (U. S.) 430; Farrington v. Tennessee, 95 U. S. 679; Railway Co. v. Philadel phia, 101 U. S. 528; Commonwealth v. Pottsville Water Co., 94 Pa. St. 516; Mobile, etc., R. Co. v. Kennerly, 74 Ala. 566. 9. Hazen v. Union Bank, 1 Sneed (Tenn.) 115. 10. Chesapeake, etc., Canal Co. v. Baltimore, etc., R. Co., 4 G. & J. (Md.) 108. 11. Hamilton v. Keith, 5 Bush (Ky.). 458; Phila., etc., R. Co. v. Bowers, 4 Houst. (Del.) 506. See also FREIGHT, 8 Am. & Eng. Encyc. of Law. tion with another; exemption of company's servants from the duty of serving upon juries or of working upon roads.2 Nearly all charters contain various provisions which are matters of general law and not of contract and are therefore subject to modification and repeal.3 A law validating a contract not within the company's franchises is valid. A railroad charter authorizing county commissioners to subscribe to the stock of the company may be repealed; until the subscription is actually made there is no contract, and a mere vote to subscribe does not form one.5 There are various ways in which questions arise as to how far the individual rights of stockholders can be affected by legislation without impairing the obligation of contracts, which will be found treated elsewhere." 2. Franchises always Granted Subject to the Police Power.-The doctrine that grants of franchises are contracts has also been frequently invoked in efforts to protect corporations from the operation of laws passed in pursuance of the police power of States. But all agree that the legislature cannot bargain away the police power of the State, and while irrevocable grants of property and 1. Zimmer v. State, 30 Ark. 680. 2. Zimmer 2. State, 30 Ark. 680; Morawetz Corp. (2d Ed.). § 1056. Consideration Necessary to Support Contract with State. -A mere grant of a privilege to a company already in existence, without any consideration moving from the company, will not be held to bind the State as a contract, unless the terms of the grant show beyond doubt that it was meant to be irrevocable. West Wisconsin R. Co. v. Trempealeau Co. Su pervisors, 93 U. S. 595; Tucker v. Ferguson, 22 Wall. (U. S.) 527. In the first case, the court said: A reasonable doubt is fatal to the claim." Providence Bank v. Billings, 4 Pet. (U. S.) 561; Christ's Church v. Philadelphia, 24 How. (U. S.) 302; Gilman v. Sheboygan, 2 Black. (U. S.) 513; Herrick v. Randolph, 13 Vt. 531; Easton Bk. v. Commonwealth, 10 Pa. St. 450; People v. Roper, 35 N. Y. 629; Salt Co. v. East Saginaw, 13 Wall. (U. S.) 373: Hewitt v. N. Y., etc., R. Co., 12 Blatchf. (U.S.) 452; People v. Com'rs of Taxes, 47 N. Y. 501; St. Louis, etc., R. Co. v. Loftin, 30 Ark. 693. Derby Turnpike Co. v. Parks, 10 Conn. 522, is an instance of an additional grant held to have been meant as irrevocable, the privilege-taking additional tollseeming to have been omitted by mistake in the first grant. P. 543. See Phila., etc., Co.'s App., 102 Pa. St. 123. 3. In Memphis R. Co. v. Commissioners, 112 U. S. 621, Justice Matthews said: In many, if not in most, acts of incorporation, however, special in their nature, there are various provisions which are matters of general law, and not of contract, and are therefore subject to modification or repeal. Such, in our opinion, would be the character of the right in the mortgage bondholders, or the purchasers at the sale under the mortgage, to organize as a corporation, after acquiring title to the mortgaged property, by sale under the mortgage, if, in the charter under consideration, it had been conferred in express terms, and particular provision had been made as to the mode of procedure to effect the purpose. It would be matter of law, and not of contract.' 4. Gross v. United States Mortgage Co., 108 U. S. 477; Satterlee v. Matthewson, 2 Pet. (U. S.) 380; Watson v. Mercer, 8 Pet. (U. S.) 88. 5. Aspinwall v. Daviess County Commissoners, 22 How. (U. S.) 364; Town of Concord v. Portsmouth, etc., Bank, 92 U. S. 625. See also, Covington, etc.. R. Co. v. Kenton County Court, 12 B. Mon. (Ky.) 144. After a valid subscription and acceptance the subscription cannot be repealed. Moultrie Co. v. Bank, 92 U.S. 631. 6. See STOCKHOLDERS. 7. Stone v. Mississippi, 101 U. S. 814: Beer Co. v. Massachusetts, 97 U. S. 32; Railroad Co. v. Richmond, 96 U. S. 521; Butchers' Union, etc., Co. v. Crescent City, etc., Co., III U. S. 746; Metropolitan Board, etc., v. Barrie, 34 N. Y. franchises may be made if they do not impair the supreme authority to make laws for the right government of the State, no legislature can curtail the power of its successors to make such laws as they may deem proper in matters of police.1 Accordingly corporations are subject, generally, to remedial legislation like individuals. A State may impose penalties upon a corporation for non-performance of public duties.3 Railroad companies may be controlled in their rates of freight and fares; 4 as to fires communicated from their locomotives; as to liability to laborers of contractors constructing the road; 6 as to negligence causing death; as to fences and cattle-guards, and may be made liable by 657; Commonwealth v. Hamilton Mfg. Co., 120 Mass. 383; State v. Morris, 77 N. Car., 512; Richmond, etc., R. Co. v. Richmond, 26 Gratt. (Va.) 83. See CORPORATIONS, 4 Am. & Eng. Encyc. of Law, 212, and authorities cited in succeeding notes. 1. Stone v. Mississippi, 101 U. S. 814; Metropolitan Board, etc., v. Barrie, 34 N. Y. 657. Police Power Generally. It makes no difference how few or how many persons a statute will be likely to affect. If it regulates a matter of public concern, and is in its terms general, applying equally to all persons or property coming within its provisions, it makes no difference, in regard to its character or validity, whether it will be likely to reach one case or ten thousand. A statute requiring powdermills to be built remote from the villages or highways, or be separated from the adjoining lands by any such muniment as may be requisite to afford security to others' property or business, would probably be a valid law if there were but one powdermill in the State, or none at all, and notwithstanding the whole expense of the protection should be imposed upon the proprietor of the dangerous business. And even where the State legislature have created a corporation for manufacturing powder at a given point, at the time, remote from inhabitants, if in process of time dwellings approach the locality, so as to render the further pursuit of the business at that point destructive to the interests of others, it may be required to be suspended or removed, or secured from doing harm, at the sole expense of such corporation." Thorpe v. R. & B. R. Co., 27 Vt. 152-3: Coates v. New York City (Trinity Churchyard), 7 Cow. (N. Y.) 604; Presbyterian Churchyard v. New York City, 5 Cow. (N. Y.) 538. 2. Chicago Life Ins. Co. v. Needles, 113 U. S. 575; Coffin v. Rich, 45 Me. 507. (1812), it was held that the Massachusetts act of 1809, imposing a penalty of two per cent per month on the amount of bills of any bank, of which payment is by such bank refused, militates with no principle of the Constitution, either of the United States or of the Commonwealth. As Mr. Justice Daniel says: 'It would imply an incredible fatuity in the States, to ascribe to them the intention to relinquish the power of self-government and self-preservation." West River Bridge Co. v. Dix, 6 How. (U. S.) 531. 532. 3. Mobile, etc., R. Co. v. Steiner, 61 Ala. 559. A statute may inflict penalties on telegraph companies for failure to transmit dispatches. Western Union Tel. Co. v. Axtell, 69 Ind. 199. 4. See FREIGHT, 8 Am. & Eng. Encyc. of Law. Over the railroad 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. Dillon, J., in Chicago, etc., R. Co. v. Atty.-Gen. of Iowa, 9 West. Jur. 347. See also R. Comm'rs v. Portland, etc., R. Co., 63 Me. 277; Olcott v. Supervisors, 16 Wall. (U. S.) 678; Secombe v. R. Co., 23 Wall. (U. S.) 108. 5. Lyman v. Bos. & Wor. R., 4 Cush. (Mass.) 288. See also FIRES CAUSED BY THE OPERATION OF RAILROADS, 8 Am. & Eng. Encyc. of Law. 6. Peters v. St. Louis, etc., R. Co., 23 Mo. 107; Branin v. Connecticut, etc.. R. Co., 31 Vt. 214. And held in the latter case that such a statute relates also to laborers employed by sub-contractors; and held also that under it compensation for use of horse and cart was recoverable. 7. Boston, etc., R. v. State, 32 N. H In Brown v. Penn Bank, 8 Mass. 445 215. 1 statute for cattle killed; as to stopping before crossing a drawbridge; as to viaducts at crossings, or sign-boards, flagmen, speed, whistling and bell-ringing; 3 and as to numerous other matters of a similar character. In like manner, where the public safety or public morals require the discontinuance of a business the legislature can abolish such business, and corporations formed for the purpose of carrying it on must as much as individuals cease from the objectionable traffic." The same principles are applicable to a business the continuation of which may become a nuisance." 1. Thorpe 7. Rutland, etc., R. Co., 27 Vt. 140; Chicago, etc., R. Co. v. Dremser, 109 Ill. 402; s. c., 19 Am. & Eng. R. R. Cas. 545. See also FENCES, 7 Am. & Eng. Encyc. of Law, 910. 2. Thorpe v. Rutland, etc., R. Co., 27 Vt. 140. 3. People v. Boston, etc., R. Co., 70 N. Y. 569. See CROSSINGS, 4 Am. & Eng. Encyc. of Law, 906. 4. Railroad Co. v. Richmond, 96 U. S. 521; Galena, etc., R. Co. v. Loomis, 13 Ill. 548; Railroad Co. v. Hillmer, 72 Ill. 235; Pittsburg, etc., R. Co. v. Southwest Pennsylvania R. Co., 77 Pa. St. 173; Kazie v. Mayo, 45 Me. 560. The regulation may be extended to supervision of the track, tending switches, running upon the time of other trains, running a road with a single track, using improper rails, not using proper precaution by way of safety-beams in case of the breaking of axle-trees, the number of brakemen upon a train with reference to the number of cars, employing intemperate or incompetent engineers and servants, running beyond a given rate of speed, and a thousand similar things. Thorpe z. Rutland & B. R. Co., 27 Vt. 150; Hegeman v. Western R. Co., 16 Barb. (N. Y.) 353. 5. In Beer Co. 7. Massachusetts, 97 U. S. 25, Justice Bradley said: "Whatever differences of opinion may exist as to the extent and boundaries of the police power, and however difficult it may be to render a satisfactory definition of it, there seems to be no doubt that it does extend to the protection of the lives, health, and property of the citizens, and to the preservation of good order and the public morals. The legislature cannot, by any contract, divest itself of the power to provide for these objects. They belong emphatically to that class of objects which demand the application of the maxim, salus populi suprema lex; and they are to be attained and provided for by such appropriate means as the legislative discretion may devise. That discretion can no more be bargained away than the power And Boyd . Alabama, 94 U. S. 645." 6. Butchers' Union, etc., Co. v. Crescent City, etc., Co., 111 U. S. 746; Crescent City Slaughter-House Co. 7. New Orleans, 33 La. Ann. 934; Coates v. Mayor, etc., 7 Cow. (N. Y.) 585; Woodlawn Cemetery v. Everett, 118 Mass. 354. Nuisance. In Fertilizing Co. v. Hyde Park, 97 U. S. 659, an association was incorporated for the term of fifty years, with the franchise of manufacturing fertilizers within certain limits, in which limits afterwards arose the municipality of Hyde Park. About four years after this, the village of Hyde Park was empowered by statute to define and abate nuisances, under which an ordinance was passed prohibiting the carrying through the village of offal, dead animals, etc., and a locomotive engineer was arrested for violating the ordinance in carrying offensive matter to said fertilizing company. Held, that the charter of the manufacturing company, although, until revoked, a sufficient license, self. was not a contract guaranteeing that the |
